Marsh & McLennan Incorporated v. Commissioner of Internal Revenue

420 F.2d 667, 25 A.F.T.R.2d (RIA) 336, 1969 U.S. App. LEXIS 9495

• Court: Court of Appeals for the Third Circuit
• Decided: December 31, 1969
• Docket: 17815_1
• Status: Published

Opinions

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

This is an appeal from a decision of the Tax Court of the United States assessing deficiencies in the income tax liabilities of appellant Marsh & McLennan, Inc., a Pennsylvania corporation, of $1,783.22 and $7,246.27 for the respective tax years, 1961 and 1962. 51 T.C. 56 (1968); C.C.H. Dec. 29, 190.¹ Specifically, the Tax Court affirmed the Commissioner’s disallowance of certain depreciation deductions made by taxpayer relating to the cost of acquired insurance expiration information.

Marsh & McLennan, Inc., a Delaware corporation, the parent company of appellant, is engaged nationwide in the insurance brokerage business, serving mainly large industrial and commercial clients. Its clients include about half of the 500 largest corporations in the United States, and in 1967 it earned commissions totalling roughly $76 million. Handling, as it does, primarily large-risk business clients, the insurance written by Marsh & McLennan is customized to each client’s needs unlike, for example, standardized home owner or automobile insurance policies; the coverage which Marsh & McLennan writes is placed with various domestic and foreign insurers.

The Marsh & McLennan organization expanded rapidly, partly through acquisitions of other brokerage firms, in the decade 1957-67, and it currently has approximately 25 domestic subsidiaries alone. Appellant, Marsh & McLennan, Inc., the Pennsylvania corporation with its principal place of business in Pittsburgh, is the successor corporation to Stokes, Packard & Smith, Inc., which it acquired in September 1961. Appellant purchased all of the assets of Stokes, Packard & Smith, Inc. for the sum of $265,383, and assumed Stokes’ liabilities of $384,283.82. It received in exchange from Stokes, all property, including all of Stokes’ insurance “expirations”, to which a value of $69,550.78 was attributed. The sole issue before us is whether the Tax Court was correct in holding that the cost of those “expirations” was not depreciable.

The nature of the “expirations” is crucial to an understanding of the decision below. The Tax Court found that “insurance expirations” consist of:

“ * * * the records of the firm, including copies of the insurance policies, showing the name of the insured, the amount and nature of the insurance coverage, the location of the risk, the policy expiration date, the premium, and other data concerning insurance carried by the client. Such insurance expirations aid * * * in obtaining renewals of the business of the acquired broker’s accounts by supplying information pertinent to the insurance needs of the accounts, and permitting it an advantage over competitors for the business by furnishing it an entree to the insured which would not otherwise be available.” (Emphasis supplied.) 51 T.C. 56, 58,

Information of this nature is, of course, business confidential, and competition in the insurance brokerage business clearly is vigorous to say the least.

As indicated above, $69,550.78 of the total purchase price paid for the assets of the Stokes corporation represented the calculated value of certain of Stokes’ insurance expirations; that sum was over and above the calculated net worth of Stokes. Because Marsh & McLennan was motivated to acquire Stokes by a desire to obtain the latter’s five or six large commercial accounts (or clients) and the valuable “expirations” relating thereto, appellant contends, in effect, that the $69,550.78 was the acquisition cost of these five or six expirations, and that for tax purposes, it was entitled to depreciate this cost over the useful life of those five or six large-client related expirations under Subsection 167(a) of the Internal Revenue Code of 1954 (26 U.S.C.A. § 167(a)), and Section 1.167 (a)-3 of the Income Tax Regulations.² Section 1.167(a)-3 of the Regulations reads with respect to intangible business assets, in pertinent part, as follows:

“If an intangible asset is known from experience or other factors to be of use in the business * * * for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible may be the subject of a depreciation allowance * * * An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. * * * No deduction for depreciation is allowable with respect to goodwill. * * * ”

Relying on the Regulation, the Tax Court held:³

“[I]t is our conclusion that the expi-rations * * * were so inextricably linked with goodwill that they cannot be considered as having an existence separate therefrom.” (Emphasis supplied.) 51 T.C. 56, 64.

And,

“Moreover, even if it were considered that the $69,550.78 constituted a payment for the insurance expira-tions, separate and apart from the goodwill as such, we nevertheless would feel constrained to hold that the payment was for an asset the useful life of which cannot be determined with reasonable accuracy and that such payment cannot be amortized and deducted as depreciation.” (Emphasis supplied.) 51 T.C. 56, 64.

We think that under the circumstances of this appeal, the views of the Tax Court are correct, and consistent with previous case-law.

With respect to the goodwill holding of the court below, we repeat that first of all the testimony established that the insurance brokerage business is strongly competitive. In that sort of tactic Marsh & McLennan — with its large organization and staff and nationwide chain of offices — had unsuccessfully attempted to obtain those Stokes’ prime accounts. That led it to later buy out the Stokes concern and thus take over the desired accounts. As the Tax Court stated:

“These five or six accounts had been held by Stokes for a long time and the Marsh & McLennan organization had endeavored, without success, to acquire them by direct contact with the clients. The chairman of the board of directors of petitioner’s parent testified that these large commercial accounts ‘had a long association with Stokes and we just felt that this (acquisition) was a good way to buy our introduction’.” 51 T.C. 56, 64.

For the first nine months following the purchase of Stokes, the letterheads used by Marsh & McLennan when it was corresponding with customers of the old Stokes business contained the statement that it was successor to Stokes, Packard and Smith, Inc. The sale agreement covering the Stokes transaction not only contained five-year covenants not to compete, restricting the selling Stokes’ stockholders from servicing their old business clients,⁴ but also a provision for the employment by Marsh & Mc-Lennan of Stokes selling stockholders. All of the latter accepted such employment as did most of Stokes’ nonstock-holder employees. Our review of the factual picture involved convinces us that the Tax Court was correct in its following analysis:

“We believe * * * that Stokes did have goodwill, and that the petitioner was interested in obtaining such goodwill even though it may have been primarily interested in the goodwill relating to only five or six of the largest commercial accounts.” 51 T.C. 56, 64. (262(a).)

In Thoms, supra, at 256, which also dealt with the sale of an insurance business, the Tax Court concluded as follows: probabilities that old customers will continue their patronage. Surely goodwill in the insurance agency business encompasses the advantage that the agency has, that its policyholders will renew their expiring policies. It is difficult to see how any insurance agency could transfer its goodwill without delivering its insurance expiration list to the transferee. If the list is not given to the transferee of goodwill he receives no benefit in the form of a probability that the policyholders of the old business will renew with him, which is just another way of saying he did , not get the goodwill. If the list is delivered to the transferee of goodwill it merely accomplishes the transfer of goodwill — defined to be the benefit that he will probably secure the renewals. The transfer of a list of expirations of a going insurance agency business is merely implementing the transfer of goodwill. * * * It is furnishing the transferee with records that will give him the opportunity to succeed to the advantageous position of his transferor. In our opinion the list of expirations is an integral part of the goodwill of a going insurance agency business.” (Citations omitted.)

“We are of the opinion that under the facts of this case the list of expi-rations is so inextricably linked with goodwill that it could not possibly have a separate depreciable existence. We have here the transfer of a going insurance agency business and its goodwill. Any definition of goodwill includes the concept of the advantage that the proprietor of an existing business enjoys resulting from the

This principle was reaffirmed by the Tax Court in Morris v. Commissioner, 27 T.C.M. 1558, 1562 (1968) which there held:

“The established principle in this Court is that where a taxpayer purchases a going general insurance agency business or a part thereof, including the goodwill, the list of insurance expirations * * * are either a part of goodwill, which is not subject to depreciation, or are so inextricably linked with goodwill as to have an indefinite useful life and therefore not depreciable. See Alfred H. Thoms [Dec. 28,947], 50 T.C. 247 (1968); Marsh & McLennan, Inc., [Dec. 29,-190], 51 T.C. 56 (1968) * * *”

In the Marsh & McLennan claim relied on by the Tax Court in Morris, supra, and now before us, although Marsh & McLennan may have been principally interested in the five or six large commercial accounts handled by Stokes, actually Stokes had about 2400 accounts, and except for some sub-brokerage business, it appears that Marsh & McLennan still enjoys the advantage of retaining most of Stokes’ former customers. 51 T.C. 61, n. 2.

Appellant is likewise incorrect in urging that the Tax Court was wrong in rejecting its alternative contention that the useful life of the expirations in question could be determined with reasonable accuracy. Certainly once a potential customer was approached by Marsh & McLennan on the basis of the Stokes’ expiration information and goodwill, the value of that first approach, or entree as the Tax Court put it, does not disappear just because Marsh & Mc-Lennan was able to persuade the former Stokes client to stay with the successor Marsh & McLennan operation. As long as the customer is with Marsh & Mc-Lennan, the customer relationship is still derivative of the initial situation as successor to Stokes; this conclusion is reaffirmed by the testimony discussed above indicating that Marsh & McLennan on its own was unable to draw the particular prime accounts away from Stokes. In this connection it is significant that the statistical evidence offered by Marsh & McLennan estimated that the useful life of the accounts in question would be 17 years. That evidence was not based on the said Stokes’ accounts but rather on an “analysis of a portion of the commercial accounts handled in 1950 by the Chicago office of the Marsh & Mc-Lennan organization”.⁵ We cannot say that the Tax Court was not free to disregard such evidence.⁶

. The decision of the Tax Court of the United States will be affirmed.

1 . With respect to this Court’s scope of review in an appeal from a decision of the Tax Court, the Congress has made it clear that such decisions are to be reviewed “ * * * in the same manner and to the same extent as (are) decisions of tbe district courts in civil actions tried without a jury * * 26 U.S.C.A. § 7482(a).

2 . Taxpayer claimed deductions, which the Commissioner disallowed, of $3,429.28 and $13,935.14 in its income tax returns for tax years 1961 and 1962, respectively, as depreciation of “Insurance Contracts Purchased,” based on a cost of $69,550.78 over a five-year life.

3 . The Tax Court also discredited Marsh & McLennan’s alternative contention that if the expiration information was determined to be non-depreciable, nonetheless, a substantial portion of the purchase price should be amortized over the five-year terms of the covenants not to compete contained in the purchase agreement. However, Marsh & McLennan abandoned that theory on this appeal.

4 . If as appellant contends, the insurance expirations in and of themselves were the sole key to the accounts of the Stokes firm, the covenants not to compete which were exacted from the Stokes’ stockholders would have been meaningless after the sale of the business for Marsh & McLen-nan then had the expiration information. But further, as the Tax Court found: “One of the conditions of the contract, inserted at the insistence of the petitioner, was that Stokes obtain such a covenant not to compete from a former stockholder and associate of Stokes.” 51 T.C. n. 1. As was said in a similar situation in Thoms v. Commissioner of Internal Revenue, 50 T.C. 247, 255 (1968) : “It is obvious such a covenant (not to compete) has the function primarily of assuring the purchaser the beneficial enjoyment of the goodwill and the seller’s list of ex-pirations.”

5 . Marsh & McLennan, 51 T.C. 56, 65. Emphasis supplied.

6 . Super Food Services, Inc. v. United States, decided July 28, 1969 (69-2 U.S. T.C., par. 9558) heavily relied on by appellant does not change this result.