[949] OPINION.
Littleton:
The issue presented in this appeal concerns the value which should be ascribed to certain tangible assets of the taxpayer for invested capital, depreciation, and depletion purposes for the year 1919. The Commissioner determined that the assets paid in on July 1, 1912, did not have a value in excess of the par value of the stock issued therefor and refused to allow a paid-in surplus. He determined that the March 1, 1913, value oí depreciable and depletable assets was $30,000, the value at which they were shown on the books at the time of transfer. The taxpayer relies upon the retrospective appraisal made in the year 1922, as of July 1, 1912, and March 1, 1913.
It was stipulated that, for the purposes of this appeal, the July 1, 1912, value, as determined by the Board for invested capital purposes, and the March 1, 1913, value, for depreciation and depletion purposes, should be the same.
Taxpayer was organized on or about July 1, 1912, with a capital stock of $50,000, with shares having a par value of $100 each, [950] the stock being issued in payment for the entire assets of the Sphar Pressed Brick Works, Inc. The present controversy arises from the contention by the taxpayer that the assets paid in for stock of taxpayer on July 1, 1912, had an actual cash value at that time clearly and substantially in excess of the par value of the stock issued therefor, and that its opening balance sheet did not reflect the actual cash value at that time. Taxpayer contends that the value of $30,000, at which the real estate and machinery was set up on its books, was erroneous, and that the true value should be measured by a certain retrospective appraisal made in 1922, which, if followed, would give the entire assets a value on July 1,1912', as follows:
Plant and equipment-$81, 500. 00
Heal estate and clay deposit- 46,150. 00
Merchandise (bricks)- 20,000.00
Cash_$4,252.69
Notes and accounts receivable- 9,766. 54
14, 019.28
Less accounts payable-52.00
13, 967. 23
Total_161,617.23
thereby entitling taxpayer to a paid-in surplus of $111,611.23. Taxpayer further contends that it is entitled to depreciation upon the March 1, 1913, value of the plant and equipment of $81,500, and to depletion at the rate of 22.5 cents per unit of 1,000 bricks.
Section 326 of the Revenue Act of 1918 provides:
1 invested capital ” for Sec. 326. (a) That as used in this title the term any year means * * *
* * * * * * *
(2) Actual cash value of tangible property, other than cash, bona fide paid in for stock or shares, at the time of such payment, tut m no case to exceed the par value of the original stock or shares specifically issued therefor, unless the actual cash value of such tangible property at the time padd in is shown to the satisfaction of the Commissioner to have been clearly and substantially in excess of such par value, in which case such excess shall be treated as paid-in surplus: * * *. [Italics ours.]
It is incumbent upon the taxpayer to show that the actual cash value of the tangible assets at the time paid in was clearly and substantially in excess of the par value of the stock issued therefor.
The engineer employed by the taxpayer in 1922 to appraise this property as of July 1, 1912, and March 1, 1913, appears to have performed his task with thoroughness and care. He determined his value in accordance with the method of computing values by the formula which he used. There are several very important factors, however, which do not appear to have been taken into consideration an this appraisal and which must be considered aside from the mere [951] mathematical computations and formulae. We refer particularly to the significant phrases in .the statute relative to invested capital, namely, “ actual cash value at the time paid in ” and “ clearly and substantially in excess of the par value of the stock issued.” This language of the statute requires a careful consideration of every element affecting the value of the assets at the time paid in for stock, in this instance on July 1, 1912. The predecessor corporation had been manufacturing bricks since 1904 with little success, the market for pressed brick having declined gradually until there was practically no demand for the product. Some of the stockholders desired to reorganize the business, but the majority were dissatisfied and desired to dispose of their holdings. Under these circumstances two of the stockholders owning 63 per cent of the stock sold their stock to the other stockholders for $40 and $45 per share, respectively, whereupon the remaining stockholders formed a new corporation, to which the predecessor corporation sold its entire assets for stock of a par value of $50,000. These facts, in our opinion, have an important bearing upon the actual cash value of the property on July 1,1912, the date paid in for stock of the taxpayer, and strongly indicate the actual cash value at that time. As a plant for the manufacture of pressed brick it v?as of exceedingly doubtful value. As a plant with changes necessary for the manufacture of rough-texture faced brick it had only a potential value, dependent upon future events. The evidence shows that the appraiser did not take these facts into consideration in arriving at his values, but shows that he predicated his value as of July 1, 1912, upon subsequent developments which perhaps warranted a value in subsequent years in excess of that paid for the assets in 1912. The appreciation in value, however, can not be included in computing the invested capital.
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[949] OPINION.
Littleton:
The issue presented in this appeal concerns the value which should be ascribed to certain tangible assets of the taxpayer for invested capital, depreciation, and depletion purposes for the year 1919. The Commissioner determined that the assets paid in on July 1, 1912, did not have a value in excess of the par value of the stock issued therefor and refused to allow a paid-in surplus. He determined that the March 1, 1913, value oí depreciable and depletable assets was $30,000, the value at which they were shown on the books at the time of transfer. The taxpayer relies upon the retrospective appraisal made in the year 1922, as of July 1, 1912, and March 1, 1913.
It was stipulated that, for the purposes of this appeal, the July 1, 1912, value, as determined by the Board for invested capital purposes, and the March 1, 1913, value, for depreciation and depletion purposes, should be the same.
Taxpayer was organized on or about July 1, 1912, with a capital stock of $50,000, with shares having a par value of $100 each, [950] the stock being issued in payment for the entire assets of the Sphar Pressed Brick Works, Inc. The present controversy arises from the contention by the taxpayer that the assets paid in for stock of taxpayer on July 1, 1912, had an actual cash value at that time clearly and substantially in excess of the par value of the stock issued therefor, and that its opening balance sheet did not reflect the actual cash value at that time. Taxpayer contends that the value of $30,000, at which the real estate and machinery was set up on its books, was erroneous, and that the true value should be measured by a certain retrospective appraisal made in 1922, which, if followed, would give the entire assets a value on July 1,1912', as follows:
Plant and equipment-$81, 500. 00
Heal estate and clay deposit- 46,150. 00
Merchandise (bricks)- 20,000.00
Cash_$4,252.69
Notes and accounts receivable- 9,766. 54
14, 019.28
Less accounts payable-52.00
13, 967. 23
Total_161,617.23
thereby entitling taxpayer to a paid-in surplus of $111,611.23. Taxpayer further contends that it is entitled to depreciation upon the March 1, 1913, value of the plant and equipment of $81,500, and to depletion at the rate of 22.5 cents per unit of 1,000 bricks.
Section 326 of the Revenue Act of 1918 provides:
1 invested capital ” for Sec. 326. (a) That as used in this title the term any year means * * *
* * * * * * *
(2) Actual cash value of tangible property, other than cash, bona fide paid in for stock or shares, at the time of such payment, tut m no case to exceed the par value of the original stock or shares specifically issued therefor, unless the actual cash value of such tangible property at the time padd in is shown to the satisfaction of the Commissioner to have been clearly and substantially in excess of such par value, in which case such excess shall be treated as paid-in surplus: * * *. [Italics ours.]
It is incumbent upon the taxpayer to show that the actual cash value of the tangible assets at the time paid in was clearly and substantially in excess of the par value of the stock issued therefor.
The engineer employed by the taxpayer in 1922 to appraise this property as of July 1, 1912, and March 1, 1913, appears to have performed his task with thoroughness and care. He determined his value in accordance with the method of computing values by the formula which he used. There are several very important factors, however, which do not appear to have been taken into consideration an this appraisal and which must be considered aside from the mere [951] mathematical computations and formulae. We refer particularly to the significant phrases in .the statute relative to invested capital, namely, “ actual cash value at the time paid in ” and “ clearly and substantially in excess of the par value of the stock issued.” This language of the statute requires a careful consideration of every element affecting the value of the assets at the time paid in for stock, in this instance on July 1, 1912. The predecessor corporation had been manufacturing bricks since 1904 with little success, the market for pressed brick having declined gradually until there was practically no demand for the product. Some of the stockholders desired to reorganize the business, but the majority were dissatisfied and desired to dispose of their holdings. Under these circumstances two of the stockholders owning 63 per cent of the stock sold their stock to the other stockholders for $40 and $45 per share, respectively, whereupon the remaining stockholders formed a new corporation, to which the predecessor corporation sold its entire assets for stock of a par value of $50,000. These facts, in our opinion, have an important bearing upon the actual cash value of the property on July 1,1912, the date paid in for stock of the taxpayer, and strongly indicate the actual cash value at that time. As a plant for the manufacture of pressed brick it v?as of exceedingly doubtful value. As a plant with changes necessary for the manufacture of rough-texture faced brick it had only a potential value, dependent upon future events. The evidence shows that the appraiser did not take these facts into consideration in arriving at his values, but shows that he predicated his value as of July 1, 1912, upon subsequent developments which perhaps warranted a value in subsequent years in excess of that paid for the assets in 1912. The appreciation in value, however, can not be included in computing the invested capital.
The appraiser ascertained that the average output of brick for the years of operation from 1912 to 1921 was 3,750,000 bricks. From the books of the company he averaged the net income for the years 1912, 1913, and 1914, and set up for the year 1913 an average profit per 1,000 bricks at $2.40, or an annual profit of $8,100. He assumed the value of the property as a whole to be the present worth of an annuity represented by eventual earnings discounted over the life of the property at a fair rate of interest. He figured the life.of the property to be 50 years and a fair rate of interest to be 6 per cent. Using an annuity formula, he computed an annuity of $8,100, discounted at 6 per cent over a life of 50 years as being $8,100X15.760, or $127,650. It is obvious that this value, which is based entirely upon earnings subsequent to incorporation, in view of the evidence before us, should not be accepted as the actual cash value on July 1, 1912. We do not know what the production or earnings were for years prior to July 1, 1912. The appraiser averaged the net income [952] for the years 1912, 1913, and 1914. The evidence shows that the taxpayer declared a dividend of 15 per cent for the fractional year July 1 to December 31, 1912, and that the years 1913 and 1914 were also very successful years, but, prior to this time, the predecessor corporation had not been operating successfully and had declared no dividends except for the years 1910 and 1912, at which time the dividends were 5 per cent. The appraiser did not take into consideration the fact that the predecessor corporation was manufacturing pressed brick which was rapidly going out of use for building-purposes ; that the stockholders were dissatisfied with the operation of the predecessor corporation and were investigating a new field of manufacturing rough texture faced brick ■ that at least two of the principal stockholders were unwilling to take the chance of continuing their investment in this manner. We find that Hall, the principal stockholder, at a very short time prior to the transfer of the assets, sold his stock for $45 a share, and that Robinson sold his stock for $40 per share. Hall’s and Robinson’s holdings represented approximately 63 per cent of the total stock. The sales of this stock were made under conditions of extreme hostility. Hall had not been on speaking terms with Sphar, and had even gone so far as to employ an attorney for the purpose of instituting court proceedings, so it must be assumed that he obtained all he possibly could for his stock and that Sphar did not pay any more than was necessary to obtain it. Another significant fact that should be taken into consideration is that the new corporation (the taxpayer) was capitalized at $50,000, which was slightly in excess of the sale price of the stock of the predecessor corporation, and that the officers of the taxpayer actually entered upon its books the value of the assets as equal to the par value of the stock issued.
We are of the opinion from all of the evidence that the actual cash value of the real estate, plant, and equipment at the time paid in was $30,000; that the total cash value for invested capital purposes of the entire assets so paid in on July 1, 1912, for $50,000 of stock was $63,967.23, the excess of the value of the entire assets over the stock issued therefor being the cash and accounts receivable, less accounts payable, of $13,967.23 which the taxpayer is entitled to include in invested capital as paid-in surplus.
With respect to depreciation and depletion, it was stipulated that the July 1, 1912, value, as determined by the Board for invested capital purposes, should be accepted as the value on March 1, 1913, for depreciation and depletion purposes, and that such depreciation should be allowed at the rate of 5 per cent per annum with depletion on a unit basis of 1,000 bricks. We have determined under the evidence submitted that the value of depletable and depreciable assets on July 1, 1912, was $30,000. There is no evidence before [953] the Board showing what portion of the $30,000 represented depre-ciable and what portion represented depletable assets, and we must, therefore, approve the allocation of the Commissioner regarding such assets, subject to the increase of depreciation from 3 per cent to 5 per cent per annum.