Musser v. Commissioner

2 B.T.A. 1031, 1925 BTA LEXIS 2190

Opinion

OPINION.

Smith:

In his petition the taxpayer alleges that the Commissioner erred in his finding that the taxpayer realized a profit of $4,506 in the year 1919 from an alleged exchange of shares of stock in the Third National Bank of St. Louis for shares of stock in First National Bank in St. Louis. The method of determining the profit is set forth in the findings of fact. No evidence has been presented before this Board that the cost to the taxpayer or the March 1, 1913, value of the shares of stock of the Third National Bank of St. Louis was different from the amount found by the Commissioner or that the fair market value of the 228 shares of First National Bank in St. Louis was different from the amount found by the Commissioner. We are not, therefore,.called upon to determine the amount of taxable gain, if any, which the taxpayer realized as a result of the exchange transaction. The sole question before us for decision is whether, under the facts as we have found them, the transaction was one which could give rise to a taxable gain under the provisions of the Revenue Act of 1918.

The taxpayer’s appeal rests upon two principal points, which are as follows:

First. Capitalization of profits is not income. The new shares of the consolidated bank represent both capital and undivided profits, and, there being no segregation' of the earnings of the corporation, there can be no income to the shareholder.

Second. Transfer of bank shares by “ operation of law ” is not an “ exchange ” of securities. The certificates of new shares in the consolidated bank were issued by authority of the Act of Congress of November 7, 1918, to replace shares of the constituent banks, and in the case of this taxpayer represented only his interest before consolidation in the bank into which the consolidation was made, and under the charter of which the business has ever since been continued. There is no “ sale or other disposition of property ” as a result of the consolidation, and no “ stock or securities exchanged ” within the meaning of section 202 of the Revenue Act of 1918.

Taking up these points in their reverse order, let us look to the pertinent sections of the Revenue Act of 1918, to ascertain if they are well premised. Section 202- of the Revenue Act of 1918 provides as follows:

(a) That for the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be—

(1) In the case of property acquired before March 1, 1913, the fair market price or value of such property as of that date; and

(2) In the case of property acquired on or after that date, the cost thereof; or the inventory value, if the inventory is made in accordance with section 203.

(b) When property is exchanged for other property, the property received in exchange shall for the purpose of determining gain or loss be treated as the equivalent of cash to the" amount of its fair market value, if any; but when in connection with the reorganization, merger, or consolidation of a corporation a person receives in place of stock or securities owned by him new stock or securities of no greater aggregate par or face value, no gain or loss shall be deemed to occur from the exchange, and the new stock or securities received shall be treated as taking the place of the stock, securities, or property exchanged.

When in the case of any such reorganization, merger, or consolidation the aggregate par or face value of the new stock or securities received is in excess of the aggregate par or face value of the stock or securities exchanged, a like amount in par or face value of the new stock or securities received shall be treated as taking the place of the stock or securities exchanged, and the amount of the excess in par or face value shall be treated as a gain to the extent that the fair market value of the new stock or securities is greater than the cost (or if acquired prior to March 1, 1913, the fair market value as of that date) of the stock or securities exchanged.

Did tbe carrying out of the agreement of consolidation, resulting in the uniting of these three banking corporations into one single entity, constitute either a “ reorganization, merger, or consolidation ” within the meaning of those terms as used in section 202 of 'the Revenue Act of 1918? We do not deem it necessary to enter into a discussion of the legal niceties of the respective meanings of the words “ reorganization ” or “ merger ” as used in the statute. It is sufficient for the present to consider what Congress, meant by the word “ consolidation,” for if the single entity created by the uniting of these three banking corporations constitutes a consolidation within the intendment of Congress, and we think that it does, then the First National Bank in St. Louis must be regarded as a new corporation, separate and distinct from the old corporations, and the exchange by this taxpayer of his shares of stock of the Third National Bank for shares of stock of the First National Bank in St. Louis constitutes an exchange of securities for securities within the purview of section 202 (b) of the Revenue Act of 1918, and the point must, therefore, be decided adversely to the taxpayer.

In Fletcher’s Cyclopedia of the Law of Private Corporations, volume 7, section 4834, it is said:

Tire effect of the reorganization in any particular case must depend upon the intention of the parties and the terms of the statute under which it is effected.

As to the intendment of the parties at interest in consolidation of these banks we must look to the agreement of consolidation, constituting, as it does, the sole evidence in the case from which we can ascertain such intent. There we find unmistakable evidence of the intent of the parties to create and bring into being a new entity, separate and distinct from the old companies, and this notwithstanding that the new entity was to operate under the charter of one of the constituent banks. Lest there be any doubt on that score, we quote again below the pertinent provisions of the agreement of consolidation which we believe indicate conclusively the intent of the parties to create a new corporation:

2. The name of the consolidated association shall be “ First National Bank in St. Louis.”

3. The amount of capital stock of the consolidated association shall be Ten Million Dollars ($10,000,000.00) divided into one hundred thousand (100,000) shares of One Hundred Dollars ($100.00) each * * *. Of this capital stock thirty-three thousand and three hundred thirty-three and one-third (33^333%) shares shall be allotted to the then shareholders of each of said banks * * *.

* * * * * * *

If the amount contributed by any of the three banks to provide for estimated federal taxes up to said date be not sufficient to pay said taxes when finally assessed and determined, any additional amount required for that purpose shall be paid by the consolidated bank * * *.

4. The assets contributed by each of the banks shall, upon the effective date of the consolidation, be passed upon and be acceptable to a committee of nine (9) * * *.

* * * * * * *

6. In the event that the committee finds assets belonging to any of the three consolidating banks in excess of the said amount to be contributed by each of them, then such excess assets, if any, shall be ty such tank transferred and delivered to the consolidated tank * * *.

* * * * * * *

8. The Board of Directors of the consolidated tank shall be not less than five (5) nor more than fifty-five (55) in number.

* * * * * * *

9. The above mentioned Board of Directors shall meet at the office of the above-mentioned consolidated bank on July 7, 1919? at the hour of ten o’clock A. M., for the purpose of electing officers of the consolidated tank, adopting ty-laws and transacting such other business as may come before said meeting. * * *

* * * * * * *

10. On July 5, 1919, or on the date the consolidation takes effect, each of the stockholders of the three tanks shall, on delivery of his certificates of stock in the consolidating tanks, duly endorsed for cancellation, receive, on demand, * * * one and one-third (1%) shares of stock in the consolidated tank for each share of stock formerly owned ty him in the respective consolidating tanks. [Italics ours.]

Let us look now to the terms of tbe statute under which this consolidation was effected. We quote below in full the amendment to the National Banking Act, approved November 7,1918, 40 Stat. 1043:

Sec. 1. * * * That any two or more national banking associations located within the same county, city, town, or village may, with the approval of the Comptroller of the Currency, consolidate into one association under the charter of either existing banks, on such terms and conditions as may be lawfully agreed upon by a majority of the board of directors of each association proposing to consolidate, and be ratified and confirmed by the affirmative vote of the shareholders of each such association owning at least two-thirds of its capital stock outstanding, ■ at a meeting to be held on the call of the directors after publishing notice of the time, place, and object of the meeting for four consecutive weeks in some newspaper published in the place where the said association is located, and if no newspaper is imblished in the place, then in a paper published nearest thereto, and after sending such notice to each shareholder of record by registered mail at least ten days prior to said meeting: Provided, That the capital stock of such consolidated association shall not be less than that required under existing law for the organization of a national bank in the place in which it is located: And provided further, That when such consolidation shall have been effected and approved by the Comptroller any shareholder of either of the associations so consolidated who has not voted for such consolidation may give notice to the directors of the association in which he is interested within twenty days from the date of the certificate of approval of the Comptroller that he dissents from the plan of consolidation as adopted and approved, whereupon he shall be entitled to receive the value of the shares so held by him, to be ascertained by an appraisal made by a committee of three persons, one to be selected by the shareholder, one by the directors, and the third by the two so chosen; and in case the value so fixed shall not bo satisfactory to the shareholder he may within five days after being notified of the appraisal appeal to the Comptroller of the Currency, who shall cause a reappraisal to be made, which shall be final and binding; and if said reappraisal shall exceed the value fixed by said committee, the bank shall pay the expenses of the reappraisal; otherwise the appellant shall pay said expenses, and the value so ascertained and determined shall be deemed to be a debt due and be forthwith paid to said shareholder from said bank, and the share so paid shall be surrendered and after due notice sold at public auction within thirty days after the final appraisement provided for in this Act.

Sec. 2. That associations consolidating with another association under the provisions of this Act shall not be required to deposit lawful money for their outstanding circulation, but their assets and liabilities shall be reported by the association with which they have Consolidated. And all the rights, franchises, and interests of the said national bank so consolidated in and to every species of property, personal and mixed, and choses in action thereto belonging, shall be deemed to be transferred to and vested in such national bank into which it is consolidated without any deed or other transfer, and the said consolidated national bank shall hold and enjoy the same and all rights of property, franchises and interests in the same manner and to the same extent as was held and enjoyed by the national bank so consolidated therewith.

The National Banking Act has been construed as authorizing the consolidation'of national banks; and where consolidation is effected by one bank taking over all the assets and assuming all the liabilities of the other, the former becomes a new corporation, whose stockholders are the stockholders of each of the old corporations before consolidation. 7 Corpus Juris, 851. The legal effect of a consolidation is to extinguish the constituent companies and create a new corporation with appropriate liabilities and stockholders derived from those then passing out of existence. Adams v. Yazoo & Mississippi Valley R. R. Co., 24 So. 200, 211; 77 Miss. 194; 60 L. R. A. 33.

In the case of Bonnet v. First National Bank of Eagle Pass, 60 S. W. 325, the Court of Civil Appeals of Texas had before it for consideration several propositions asserted by the appellant in that case under various assignments, among which was that the consolidation of the First National Bank was ultra vires and void. Of especial interest in the case of this taxpayer is the discussion contained in the court’s opinion as to the legal effect of the consolidation. The court stated as follows:

As a general principle, corporations cannot consolidate unless the authority is conferred by legislation. Such authority may be given in the act by virtue of which the corporation was organized, whether it be a special act of incorporation or a general act under which all corporations of the same kind are chartered. The banks the consolidation of which we are considering were, of course, organized and received their charters under authority of the national bank act. Section 5223, Rev. St. U. S. (a part of that act), clearly recognizes the right of a bank incorporated thereunder to wind up its business and consolidate with another such association, and may be regarded as legislative authority for the consolidation of the banks in question, provided it was otherwise legally effected. The right thus given to national banks to consolidate cannot be regarded as an amendment to their charters, but is rather to be considered as read into and forming a part of the charter of every national bank. It is, of course, well understood that a material and fundamental change by an amendment of the charter of a corporation is a violation, of the contract rights of any stockholder who does not assent to such an amendment, and an amendment of a charter consolidating the corporation with another corporation is such a material and fundamental change. Cook, Corp. (4th Ed.) §500. If is seen from the facts of this case that the consolidation of these banks was effected under the direction and by the sanction of the comptroller of the currency. And this appears independent of his letters, the introduction of which in evidence is complained of by the appellant. It will be presumed, therefore, that the consolidation was legally effected. It is generally held that the effect of a consolidation is the dissolution of the corporations previously existing, and at the same instant the creation of a new corporation, with property, liabilities, and stockholders derived from those passing out of existence. It is, in effect, the surrender of the old charter of the companies, the acceptance thereof by the legislature, and the formation of a new company out of such portions of the old as entered into the new. Cook, Corp. (4th Ed.) §897; Adams v. Railroad Co. (Miss.) 24 South. 201. And it has been held that a consolidation, and not a mere sale and purchase, is effected where all the property and franchises of one corporation are transferred to another, and where the stockholders of the former corporation transfer all théir shares therein to the latter company, under an arrangement by which the shares of the latter company are issued to them in exchange. Railway Co. v. Ashling, 160 Ill. 373, 43 N. E. 373. Therefore it may be considered that, the instant the consolidation of these two corporations was effected, the First National Bank of Eagle Pass, though its name remained unchanged, became, in effect, a new corporation, having as its stockholders not only its former ones, but those of the Simpson National Bank, which had been amalgamated with it, with the franchises, property, and liabilities held and incurred by each before the act of consolidation.

In view of all of the foregoing, we hold that the First National Bank in St. Louis is an entirely new entity arising out of the consolidation of the Third National Bank of St. Louis, the Mechanics-American National Bank of St. Louis, and the St. Louis Union National Bank; that the properties of the three consolidating banks were transferred to the consolidated bank in exchange for securities of the latter which were distributed directly to the stockholders of the three consolidating banks by the consolidated bank, the transaction constituting an exchange of property for property; and that the exchange by this taxpayer of shares of stock of the Third National Bank for shares of stock of the First National Bank in St. Louis constituted an exchange of securities for securities within the purview of section 202(b) of the Revenue Act of 1918.

Turning now to the taxpayer’s first contention, we find that to be predicated upon taxpayer’s assumptions that the effect of the consolidation of the businesses of the several banks involved was not to sever any part of the profits of the enterprise; that, looked at as a whole, the purpose and effect of the consolidation was to continue the business without a distribution to the stockholders of any part of the property, surplus, or otherwise; that the taxpayer realized no gain because after the consolidation took place he had nothing he did not have before; that he merely exchanged one set of certificates for another; and that his new stock was but different evidence of his ownership of the same assets or enterprise.

We do not think, however, that this contention is well founded. The taxpayer turned in shares of stock of the Third National Bank of St. Louis for a larger number of shares of stock in First National Bank in St. Louis. If the market value of the total number of shares received in exchange was in excess of the cost or March 1, 1913, value of the shares of stock of the Third National Bank of St. Louis turned in by the taxpayer, the amount of that profit constitutes taxable income within the plain terms of the Revenue Act of 1918. The only question is: Did Congress exceed its authority in calling this amount gain or income? The taxpayer, relying upon the decisions of the Supreme Court in Weiss v. Stearn, 265 U. S. 242; United States v. Phellis, 257 U. S. 156; Rockefeller v. United States, 257 U. S. 176; and Cullinan v. Walker, 262 U. S. 134, contends that no profit liable to income tax was realized from the transaction. The principle upon which the above-named cases were decided, as well as Eisner v. Macomber, 252 U. S. 189; Weiss v. Stearn, 265 U. S. 242; is explained in the case of Marr v. United States, 268 U. S. 536, as follows:

In each of the five eases named, as in the case at bar, the business enterprise actually conducted remained exactly the same. In United States v. Phellis, in Rockefeller v. United States and in Cullinan v. Walker, where the additional value in new securities distributed was held to be taxable as income, there had been changes of corporate identity. That is, the corporate property, or a part thereof, was no longer held and operated by the same corporation; and, after the distribution, the stockholders no longer owned merely the same proportional interest of the same character in the same corporation. In Eisner v. Macomber and in Weiss v. Stearn, where the additional value in new securities-was held not to be taxable, the identity was deemed to have been preserved. In Eisner v. Macomber the identity was literally maintained. There was no new corporate entity. The same interest in the same corporation was represented after the distribution by more shares of precisely the same character. It was as if the par value of the stock had been reduced, and three shares of reduced par value stock had been issued in place of every two old shares. That is, there was an exchange of certificates but not of interests. In Weiss v. Stearn a new corporation had, in fact, been organized to take over the assets and business of the old. Technically there was a new entity; but the corporate identity was deemed to have been substantially maintained because the new corporation was organized under the laws of the same State, with presumably the same powers as the old. There was also no change in the character of securities issued. By reason of these facts, the proportional interest of the stockholder after the distribution of the new securities was deemed to be exactly the same as if the par value of the stock in the old corporation had been reduced, and five shares of reduced par value stock had been issued in place of every two shares of the old stock. Thus, in Weiss v. Stearn, as in Eisner v. Macomber, the transaction was considered, in essence, an exchange of certificates representing the same interest, not an exchange of interests.

As in the case of Marr v. United States, supra, we do not think that the corporation known as First National Bank in St. Louis is the same corporation as the Third National Bank of St. Louis. To be sure the new corporation was -organized under the laws of tbe United States, but its assets were entirely different. The identity of the Third National Bank of St. Louis was lost in the consolidated corporation. The assets of the new corporation were entirely different from the assets of the old corporation, and there was a material change in the character of the securities issued. The profit realized by the taxpayer upon the exchange of securities must be held to be liable to income tax.

Tettssell and Phillips dissenting.