Gutman v. Commissioner

Board of Tax Appeals

Gutman v. Commissioner

7 B.T.A. 500, 1927 BTA LEXIS 3156

CourtUnited States Board of Tax Appeals

DecidedJune 24, 1927

DocketDocket No. 4764.

StatusPublished

Cited by5 cases

This text of 7 B.T.A. 500 (Gutman v. Commissioner) is published on Counsel Stack Legal Research, covering United States Board of Tax Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gutman v. Commissioner, 7 B.T.A. 500, 1927 BTA LEXIS 3156 (bta 1927).

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Opinion

[501]*501OPINION.

Milliken :

The only question presented is whether petitioner suffered in 1922 a “ net loss ” as that term is defined in section 204 of the Revenue Act of 1921. That section in part provides:

The term “ net loss ” means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business) ; * * *.

The petitioner’s ownership of his stock in the Vogue Company bears no semblance to a “trade or business regularly carried on.” The Vogue Company, however, did regularly carry on a business. If the loss sustained by the corporation in 1922 had not resulted in its insolvency; if it had carried on in the next year, it is clear that it and not the petitioner would have been entitled to the deduction of a “net loss ” in 1923. We find nothing in the statute which justifies us in holding that total insolvency of a corporation gives to a stockholder this benefit which he would not possess if the corporation had done business in the succeeding year.

We are asked in this proceeding to disregard the corporate entity and hold that the petitioner was in fact a part owner of the business and that the business carried on by the corporation was his business to the extent of his stockholdings. In this connection our attention is invited to the fact that petitioner was the largest stockholder in the corporation, was its manager, and gave to it the whole [502]*502of his time. This is true in nearly every case where an owner incorporates his business and assumes the management of the corporation. In such a case the stockholder would ordinarily vigorously call to h,is aid the corporate protection if called upon to respond to corporate liabilities. The corporate entity is just as vital when a stockholder seeks benefits as when he resists liabilities. The ownership of corporate stock, it matters not how great the proportion, does not confer ownership of corporate assets or of the corporate business. Appeal of Regal Shoe Co., 1 B. T. A. 896. Under the facts of this case, it is impossible for us to disregard the corporate entity of the Yogue Company; much less can we hold that concern was a partnership of which petitioner was a member. Cf. J. J. Harrington, 1 B. T. A. 11; William J. Robb, 5 B. T. A. 827; and H. J. Schlesinger, 5 B. T. A. 943.

Judgment will be entered for the respondent.

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[501]*501OPINION.

Milliken :

The only question presented is whether petitioner suffered in 1922 a “ net loss ” as that term is defined in section 204 of the Revenue Act of 1921. That section in part provides:

The term “ net loss ” means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business) ; * * *.

The petitioner’s ownership of his stock in the Vogue Company bears no semblance to a “trade or business regularly carried on.” The Vogue Company, however, did regularly carry on a business. If the loss sustained by the corporation in 1922 had not resulted in its insolvency; if it had carried on in the next year, it is clear that it and not the petitioner would have been entitled to the deduction of a “net loss ” in 1923. We find nothing in the statute which justifies us in holding that total insolvency of a corporation gives to a stockholder this benefit which he would not possess if the corporation had done business in the succeeding year.

We are asked in this proceeding to disregard the corporate entity and hold that the petitioner was in fact a part owner of the business and that the business carried on by the corporation was his business to the extent of his stockholdings. In this connection our attention is invited to the fact that petitioner was the largest stockholder in the corporation, was its manager, and gave to it the whole [502]*502of his time. This is true in nearly every case where an owner incorporates his business and assumes the management of the corporation. In such a case the stockholder would ordinarily vigorously call to h,is aid the corporate protection if called upon to respond to corporate liabilities. The corporate entity is just as vital when a stockholder seeks benefits as when he resists liabilities. The ownership of corporate stock, it matters not how great the proportion, does not confer ownership of corporate assets or of the corporate business. Appeal of Regal Shoe Co., 1 B. T. A. 896. Under the facts of this case, it is impossible for us to disregard the corporate entity of the Yogue Company; much less can we hold that concern was a partnership of which petitioner was a member. Cf. J. J. Harrington, 1 B. T. A. 11; William J. Robb, 5 B. T. A. 827; and H. J. Schlesinger, 5 B. T. A. 943.

Judgment will be entered for the respondent.

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7 B.T.A. 500, 1927 BTA LEXIS 3156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gutman-v-commissioner-bta-1927.

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