Jackson Finance & Thrift Co. v. Commissioner
This text of 29 T.C. 272 (Jackson Finance & Thrift Co. v. Commissioner) is published on Counsel Stack Legal Research, covering United States Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
OPINION.
The only question presented for decision is whether the petitioners are entitled to include in their borrowed invested capital for the purposes of determining excess profits tax credit, the amomit of thrift certificates issued to customers.
The respondent has determined that the amounts received by petitioners represented by thrift certificates do not qualify as borrowed capital under section 439 of the Internal Revenue Code of 1939.2 It is incumbent upon petitioners to demonstrate the existence of an outstanding indebtedness evidenced by one of the types of instruments specified in such section. Canister Co. v. Commissioner, 164 F. 2d 579, certiorari denied 333 U. S. 874; Journal Publishing Co., 3 T. C. 518, 522; Brizard Co., 28 T. C. 1142.
Petitioners’ contention is limited to the claim that the thrift certificates involved herein qualify as a “certificate of indebtedness,” under section 439 (b) (1), and, hence, our inquiry is narrowed to the question of what is encompassed within that specific designation.
The respondent’s Regulations 130 deal with the excess profits tax imposed by the Excess Profits Tax Act of 1950, which is here involved. Section 40.439 (1) (f) 3 covers the term “certificate of indebtedness” as used in section 439 (b) (1) of the Internal Revenue Code of 1939, relating to borrowed capital for excess profits tax purposes.
The respondent takes the position that the thrift certificates in question are not instruments having the general character of investment securities issued by a corporation within the definition of the regulations or as the term “certificate of indebtedness” is generally understood and defined; and that the funds which petitioners received from customers were “deposits” evidenced by a thrift certificate book similar to a passbook and hence were not borrowed capital for excess profits tax purposes within the regulations and the cases upholding their validity. Commissioner v. Ames Tr. & Sav. Bank, 185 F. 2d 47, reversing 12 T. C. 770; National Bank of Commerce, 16 T. C. 769; Capital National Bank of Sacramento, 16 T. C. 1202.
We cannot regard the thrift certificate in question as an investment security of a corporation by general understanding.
The thrift certificate is nonnegotiable. It has no maturity date, but it is payable on presentation of the certificate book, with the right of the corporation to require a 30-day notice. Only amounts in excess of $100 bear interest. The corporation can redeem the certificate at any time upon payment of the face amount with accrued interest. The fact that the moneys delivered to petitioners for which a certificate is issued are used in the conduct of their business is not determinative. Nor is the fact that the thrift certificate is an obligation and creates a debtor and creditor relationship. Mere debts are not investment securities as generally understood or within the meaning of that phrase as contained in the regulations.
The thrift certificate evidences the fact that funds have been placed with petitioners under a thrift plan contract, and is more analogous to a deposit than an investment security.
Since the regulation has been sustained as properly interpreting the meaning of the term “certificate of indebtedness” as used in section 439 (b) (1) of the Code, we conclude that the thrift certificate in question does not qualify as borrowed capital for excess profits tax purposes.
The respondent further argues that petitioners are in the banking business within the purview of section 104 (a) of the Code. In view of the conclusion we have reached on the narrow question presented to us, we do not pass on the merits of that argument.
Petitioners rely heavily on the holding of this Court in Economy Savings & Loan Co., 5 T. C. 543, as a controlling authority. Undoubtedly, our holding in that case and in Ames Tr. & Sav. Bank, supra, relying upon the Economy case, supra, would require a decision in favor of petitioners. While the Economy case was affirmed on appeal (158 F. 2d 472), the issue before us was not raised or passed upon. The Ames case, supra, was reversed (185 F. 2d 47). This Court has followed the opinion of the Eighth Circuit in the Ames case; National Bank of Commerce, supra; Capital National Bank of Sacramento, supra. As certain affirmative statements in the Economy case, supra, are in our opinion, directly contrary to our holding in the National Bank of Commerce case, supra, our decision in the Economy case, supra, to the extent of the holding that a certificate of deposit is a certificate of indebtedness and constitutes borrowed capital for excess profits tax purposes, will no longer be followed.
The respondent’s determinations that the amounts represented by thrift certificates issued by the respective petitioners are not includible in the taxable years involved as borrowed capital for the purpose of computing excess profits tax credit are sustained.
Reviewed by the Court.
Decisions will J)e entered urnder Bule 50.
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29 T.C. 272, 1957 U.S. Tax Ct. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-finance-thrift-co-v-commissioner-tax-1957.