Guinness v. United States

73 F. Supp. 119, 109 Ct. Cl. 84

Opinions

MADDEN, Judge.

The plaintiff was a partner in the investment banking firm of Ladenburg, Thalmann and Company. In 1930 165,000 shares of the stock of Standard Power and Light Corporation, which stock was owned, directly or indirectly by the partnership, was sold to the United States Electric Power Corporation at a large profit. The question here is the extent to which the plaintiff became liable for federal income tax upon his share of this profit.

From 1925, and up to the time of the sale which produced the profit in question, the stock sold stood in the name of the Standard Utilities Corporation, which corporation was wholly owned by the partnership. As shown by our finding 7, on December 21, 1929, the partnership, purporting to represent the owner of the stock sold, but not naming the owner, made a written agreement with the United States Electric Power Corporation to sell and buy respectively the stock for $10,000,000 in cash and $15,000,-000 in notes of the purchaser. According to the agreement, the transfer was to take place on January 2, 1930, if, three business days before that date, the certificate of incorporation of the Standard Power and Light Corporation had been amended in specified respects. If the amendments had not been made by that date, the transfer was to be postponed to await them, but if they had not been made by January 28, 1930, the obligations of the agreement were to terminate unless extended as provided in the agreement.

The stock to be sold had been placed in escrow some years before by an agreement described in our finding 6. On December 31, 1929, the partnership and the other party to the escrow agreement delivered a letter to the bank which held the stock in escrow. The letter terminated the escrow agreement, provided the sale agreed to on December 21, 1929, was consummated. On January 6, 1930, written instructions were given to the bank by the partnership and the prospective purchaser with respect to the consummation of the sale. On the same day the purchaser deposited with the bank $10,000,000 in cash and four notes for $15,-000,000, also payable to the partnership. Arrangements were made with the bank to send a representative to Dover, Delaware, on January 7, 1930, with the stock, a check for $10,000,000 payable to the partnership, and the purchasers’ notes for $15,000,000.

On January 7, in Dover, the stockholders of Standard Power and Light met at 12:30 p. m. and amended the certificate of incorporation, as contemplated in the agreement of December 21, 1929. In New York, the Board of Directors of Standard Utilities Corporation, which owned the stock the sale of which is here involved, met at 1:30 p. m. on January 7, 1930, and adopted two resolutions, one authorizing the partnership to sell on behalf of the Corporation to United States Electric Power Corporation, 15,000 shares of stock of the Standard Power and Light Corporation. The other resolution declared a dividend of the remaining 150,000 shares of the Standard Power and Light Corporation, to be paid immediately to the stockholders of record. A ticket evidencing the transfer of the divident stock was immediately made out and delivered to the partnership, the sole stockholder of Standard Utilities. Federal and New York State stock transfer stamps in the amount of $3,300 were affixed to the ticket.

Mr. Rosen, an officer of Standard Utilities and a member of the partnership then telephoned Mr. Rosenthal, likewise an officer and a partner, at Dover and told him what had been done. Then the amendments to the articles of incorporation of Standard Power and Light were filed with the Secretary of State of Delaware at Dover, a certified copy of them was given to the representative of the bank, the certificate for the 165,000 shares was transferred on the books of Standard Power and Light by its transfer agent at Dover, to the purchaser. The certificate for 165,000 shares included the 15,000 and the 150,000 shares covered by the two resolutions described above. Again transfer stamps were attached. Then the representative of the bank delivered the check and notes to Mr. Rosenthal. The check for $10,000,000 was cashed by the partnership and the proceeds were distributed $7,750,000 to the partnership and $2,250,000 to Standard Utilities. The notes for $15,000,000 which had a then present worth of $14,100,000 were held and collected by the partnership. The plaintiff owned a 21.345 percent interest in the partnership.

The question disputed by counsel is whether or not the sale of the 150,000 shares was made by the corporation, Standard Utilities Corporation, or by the partnership of which the plaintiff was a member. If it was made by the corporation, then the corporation realized a profit of $19,226,753.-61 and hence had earnings or profits of that amount to distribute as a dividend to its shareholder, the partnership, hence the partners, receiving this amount as a result of the transaction would be taxable, each in his proper proportion, upon this amount as ordinary income. On the other hand, if the corporation merely distributed the stock as a dividend in kind to its shareholder, the partnership, without itself realizing the profit involved in the sale, then the partners did not, except to the extent to which the corporation had on hand realized earnings or profits, i. e., to the extent of $4,361,964.-25, receive from the corporation a dividend paid out of earnings or profits.

Section 115 (d) of the Revenue Act of 1928, 26 U.S.C.A. Int.Rev.Acts, page 385, says: “Other Distributions from Capital. If any distribution (not in partial or complete liquidation) made by a corporation to its shareholders is not out of increase in value of property accrued before March 1, 1913, and is not out of earnings or profits, then the amount of such distribution shall be applied against and reduce the basis of the stock provided in section 113, and if in excess of such basis, such excess shall be taxable in the same manner as a gain from the sale or exchange of property. * * *” Since all except $4,361,964.25 of the value of the distribution was “not.out of earnings or profits” the shareholder could, at his option, return as a capital gain that portion of his proportionate share of the distribu tion which was in excess of the corporation’s earnings or profits.

The concurring opinion expresses the view that whether the plaintiff received the money, in effect, from the corporation, or received the stock which he immediately sold for the same amount of money, is immaterial since in either case he would be taxable upon the same amount, as ordinary income. We discuss this divergence of views hereinafter.

We think that, in legal effect, the corporation sold the stock and hence, in effect, distributed the dividend to the partnership out of realized earnings. The real owners of Standard Utilities Corporation, and hence of the stock of the Standard Power and Light Corporation, which the Utilities Corporation held, were, of course, the partners, one of whom was the plaintiff. There is something unreal in disputing about whether the partners or the Utilities Corporation sold the stock, when the corporation was a creature of the partners, completely subject to their will, which had to sell when it was told to do so, and could not sell unless it was permitted to do so. But the partners had chosen this kind of a depositary in which to place their property, and if legal consequences, in the form of tax expense, attaches to this choice, they must bear this burden until Congress is persuaded to disregard, for tax purposes, the existence of the helpless juridical person. The stock, then, was admittedly owned by the corporation. The purpose was to get the ownership of the stock into the United States Electric Power Corporation, in return for some $25,000,000 which was to be divided among the partners. The simple and direct way to get the stock over to the Electric Power Corporation would have been for the Utilities Corporation, which had it, to transfer it to the Electric Power Corporation which was buying it. But, solely in order to minimize taxes, the formalities of a transfer from the Utilities Corporation to the partnership, which did not want the stock and did not intend to keep it, except momentarily and for the purpose of satisfying the order of procedure decided upon, were gone through. Then the partnership, in turn, made its prearranged move and transferred the stock to the person who was at all times intended to have it, the Electric Power Corporation.

We think that the intermediate move, useless and without any purpose except to reduce taxes, ought to be disregarded. The plaintiff says that this is holding, in effect, that parties must so shape their transactions as to produce the maximum of taxes. We think not. We do think that either of two methods of accomplishing exactly the same result ought to produce the same tax liability as the other; that the tendency in the administration of tax laws should be toward that end and that the amount of tax liability should be that which would arise out of accomplishing the intended result by the simple and direct course that would be followed if the tax liability were not in question. One should not be able to throw the tax gatherer off the scent merely by traveling to the same destination by a roundabout route.

We think we are bound to come to this conclusion by the Supreme Court’s decision in Commissioner v. Court Holding Company, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981. We recognize that the opinion in that case stressed the finding by the Tax Court that the shareholders acted for the corporation in selling the property which there produced the profit which was taxed to the corporation. As we see it, that “finding” was not so much a finding of fact as the decision of the case after considering the law and the policy applicable to it. There, as here, the corporation was a puppet, and if other laws and policies had been in question, it would have been as easy there as here, and perhaps more realistic, to find that whatever was done, whether in the name of the corporation or of the shareholders, was done for the shareholders, the real owners and controllers of the corporation’s acts. In the Court Holding Company case, as in ours, the shareholders caused the corporation to first distribute the property which it owned to the stockholders, which they, in turn, transferred immediately to the intended purchaser, the indirect route being traveled there, as here, for the purpose of escaping the tax on the corporation which was applicable to the corpora tion’s profit. We think that uniformity of tax administration requires that we reach the same result in what we regard as essentially the same kind of case.

The concurring opinion presents the view that it is immaterial whether or not the corporation made the sale, since, according to Article 627 of Regulations 74 the distribution by the corporation was taxable to the recipients at its market value at the time it was distributed. The Government did not present this view in brief or argument though it would have, if valid, summarily disposed of the case. We do not, therefore, have the assistance of counsel on the point. Our finding númber 25 shows that the Commissioner’s administration of the law was not in accordance with this view. When he was of the opinion that Standard Utilities Corporation had first distributed the stock in question as a dividend to the partnership, which had in turn sold it, he taxed the distribution to the plaintiff, not as ordinary income but as a capital gain. Section 115 (d) of the Revenue Act of 1928, quoted supra, seems to us to cover the point, and to make it necessary for us to decide whether the corporation or the partnership made the sale. We have, as appears above, concluded that the corporation made it.

In one item of the plaintiff’s claim he complains that the gains to him from the exercise by the partnership of a certain option were over-assessed. The option was to purchase 266,666 shares of stock of the United States Electric Power Corporation for $75,000, which was much less than their market value. The option was exercised on February 4, 1930, at which time the stock was worth $18.72 a share. By December 31, 1930, it was down to $5.50 per share, and went still lower thereafter. The plaintiff ceased to be a partner on December 31, 1929. He made a settlement with the continuing partners on April 22, 1930, which provided, inter alia, the extent and manner in which he was to participate in profits of the firm resulting from the completion of business which had been initiated while he was a partner. Under this agreement he was to receive his share of the option stock in three equal annual installments, tlie first to be turned over to him on December 31, 1930. We think that, in these circumstances the value of the stock on December 31, 1930, should be taken in computing his profit, and not the value on February 4, 1930, or some other earlier time. But we cannot determine from the record whether, or how much, if anything, the plaintiff is entitled to recover. Exhibit D, attached to the plaintiff’s petition, shows a contention by the Bureau of Internal Revenue, when it passed upon the plaintiff’s claim for refund, that the plaintiff had been under-assessed on his whole income for 1930, that further assessment was barred by the Statute of Limitations, and that for that reason he would not be entitled to recover upon his claim for refund even if it were otherwise meritorious, since he had not over-paid his 1930 taxes. We cannot, from the record, determine whether the position of the Bureau was correct, nor what amount of refund the plaintiff would be entitled to if the Bureau’s position was not correct. We must, therefore, remand this branch of the case to a Commissioner for an accounting. The accounting and the arguments to us on the return of the case should cover the question of whether the value on December 31, 1930, of the whole of the plaintiff’s share of the option stock, or only the value of the one-third of that share, which third was to be delivered on that date, should be considered in determining the plaintiff’s 1930 income.

The case will be remanded to a Commissioner of this court for further proceedings in accordance with this opinion and report to the court.

It is so ordered.

JONES, Judge, concurs.