Kaufmann v. Commissioner

11 T.C. 483, 1948 U.S. Tax Ct. LEXIS 76

• Court: United States Tax Court
• Decided: September 28, 1948
• Docket: Docket Nos. 12203, 12204, 12205, 12206, 12207
• Status: Published

Opinions

OPINION.

Offer. Judge :•

That this proceeding comes within the purview, and is governed by the principle, of Commissioner v. Court Holding Co.. 324 U. S. 331, seems to us demonstrated by Fairfield Steamship Corporation., 5 T. C. 566. Not only the prevailing opinion, but that of the dissent, makes this clear.

The rationale of that case was that “the sale effected was in substance that which had been arranged while [petitioner] * * * held title” to the property (page 573). The record here shows that Hyman, who carried on all negotiations for the seller,¹ was president of the corporation; he was not a stockholder. He was negotiating for the sale of property of which the corporation, not the stockholders, was the owner. Whatever their final outcome, all of the negotiations were carried on, right down to the formulation and execution of the escrow agreement, while the corporate petitioner continued to hold title to the property. Petitioners do not, in fact, deny this, but insist in their brief merely that “the stockholders had legally obligated themselves to convey title to this property when they acquired the same in the future * * *. In our case * * * there were no negotiations for the sale of the property by the corporation with the final vendees whatsoever.”

Even under the theory of the dissenting judges, these are stronger facts for respondent than those in the Fairfield case. There the dissent points out that before any negotiations were started, “The evidence is clear that the parties had decided to transfer the assets of [the corporation] * * * including” the property in question, “to Atlantic [the stockholder] in exchange for all of” the corporation’s outstanding stock. “* * * it was only on September 19, after the transfer * * * that Lewis, as president of Atlantic [the stockholder], was authorized to conclude a contract * *

Here, the facts show, and are so construed by petitioners, that no steps whatsoever were taken toward liquidation until the deal for sale of the .property had been conclusively agreed to. As the court said in Trippett v. Commissioner (C. C. A., 5th Cir.), 118 Fed. (2d) 764, affirming 41 B. T. A. 1254, Trippett and Meadows, the two sole stockholders there, “had no right to deal with the corporate property as their own. Texota Corporation had not been dissolved or liquidated and they could only act as its agents.”² George T. Williams, 3 T. C. 1002, and Acampo Winery & Distilleries, Inc., 7 T. C. 629, may be thus distinguished. Perhaps the view of the Fifth Circuit in Howell Turpentine Co. v. Commissioner, 162 Fed. (2d) 319, reversing 6 T. C. 364, was that the facts there were likewise reconcilable.³ If not, we are, for the sake of uniformity, respectfully constrained to follow the contrary conclusions reached by us in the Howell and Fairfield cases.

The affirmance of the Fairfield case (C. C. A., 2d Cir.), 157 Fed. (2d) 321; certiorari denied, 329 U. S. 774, was, it is true, not placed upon the same grounds as those employed below. Regardless, however, of the reasons given, the cases are, in our view, identical, unless, as we have suggested, the present facts are more favorable to respondent.

There remains for consideration the point, insistently urged by petitioners, that the corporate petitioner was effectively disabled from making any sale of its property, and hence that the stockholders, and not the corporation, must have done so. Rejection of the proposition is required by the facts themselves. The corporation was no more bound not to sell than it was not to distribute its assets. Neither was a categorical prohibition; both depended upon paying off the corporation’s bonds. This was actually done, in the ultimate outcome, out of the proceeds of the sale and new mortgage, which were obviously greatly in excess of what was needed to liquidate the bonds in cash.⁴

A contract to sell the property upon the simultaneous discharge of the bond indenture is nowhere shown to have been impossible, nor indeed, even difficult. We may take notice that such transactions are of common occurrence. And a contract with two prior conditions instead of one — release of the old mortgage and liquidation of the corporation — was in fact found to be entirely feasible. If it was lawful for the stockholders to contract to sell property which was not only covered by a mortgage and a court decree, but which they did not own, it must have been at least as lawful for the corporation which owned it to do the same.

There are no disputed evidentiary facts in the case. All of the witnesses who testified can be implicitly believed, and the ultimate fact remains, in our judgment, that the actual transaction started out and ended up by being a sale of the corporation’s property negotiated through its chief officer, consented to, as it had to be, by its stockholders, and cast in a more complicated and indirect form from motives concerning which we find it unnecessary to speculate. The resulting gain was that of the corporate petitioner, and the tax must be determined accordingly.

Reviewed by the Court.

Decisions will be entered for the respondent.

1 It does not assist the petitioner in the decision of doubtful issues of fact that he was not produced as a witness and that his absence was unexplained. See Wichita Terminal Elevator Co., 6 T. C. 1158; affd. (C. C. A., 10th Cir.), 162 Fed. (2d) 513.

2 We have found as a fact that petitioner’s president had authority to institute negotiations for the sale of the corporate property. There being no evidence to the contrary, we have no basis for departing from ‘‘the presumption as to the authority of the president of a corporation" that he “represented the corporation, and prima facie he had power to do any act which the directors could authorize or ratify.” Hardin v. Morgan Lithograph Co. (N. Y.), 247 N. Y. 332 : 160 N. E. 388. Even though an ultimately articulated contract of sale could not be executed by the president without, or probably even with, the authority of the directors alone, it is inconceivable that the negotiation of such a contract should .be outside of the authority of the president. See 2 Fletcher, Cyclopedia Corporations, p. 462. “* * * some corporations can only be reached through their agents * * * In no other way can knowledge be conveyed to the fictitious entity or negotiations be had with it. It is not usual for parties dealing with a corporation to be brought before the directors to negotiate their contracts.” ‘ Balfour v. Fresno Canal Co., 123 Cal. 395; 55 Pac. 1062. Unless some corporate oflicer can participate in preliminary conversations, no proposal for the sale of corporate property could ever be arrived at for submission to the stockholders, and without that, of course, the functioning of a corporation and the transaction of its business would be fatally restricted.

3 The opinion refers to “The contract of sale * * * reciting the impending liquidation, which had in fact been formally ordered before the contract was signed.”

4 It was actually testified by petitioner’s secretary that “the corporation [petitioner] repaid us [the stockholders] by giving the individuals the title. The $120,000.00 was part of the consideration of the corporation giving the individuals title.” On that theory, a sale by the corporation — and a capital gain — must have taken place irrespective of the second transfer of title. See Fairfield Steamship Corporation v. Commissioner, supra.