Woodward v. Commissioner

49 T.C. 377, 1968 U.S. Tax Ct. LEXIS 189

• Court: United States Tax Court
• Decided: January 23, 1968
• Docket: Docket Nos. 4363-65, 4364-65
• Status: Published

Opinions

OPINION

Tietjens, Judge: These consolidated cases involve deficiencies determined by respondent for the calendar year 1963 as follows:

Docket No. Petitioners Deficiency

4363-65_ Fred W. Woodward and Elsie M. Woodward. _ $9, 433. 29

4364-65_ F. R. Woodward and M. Jeanne Woodward_ 3, 122. 59

The sole issue for decision is whether fees and costs paid in connection with litigation to determine the value of certain stock represented capital expenditures or deductible expenses. In docket No. 4363-65 petitioners claim an overpayment of $1,134.47. Certain concessions of the respondent may be given effect under Eule 50.

All the facts are stipulated and are so found.

Petitioners Fred W. Woodward and Elsie M. Woodward are husband and wife. Petitioners F. E. Woodward and M. Jeanne Woodward are husband and wife. F. E. Woodward is a son of Fred W. and Elsie M. Woodward. All of .the petitioners are residents of Dubuque, Iowa. Each couple filed a joint Federal income tax return for the calendar year 1963 with the district director of internal revenue at Des Moines, Iowa.

The Telegraph-Herald is a profit corporation organized under the laws of the State of Iowa, and is engaged in publishing a daily newspaper and operating a commercial printing plant and a radio station in Dubuque.

On June 9,1960, the Telegraph-Herald had 1,200 shares of common stock issued and outstanding. Ownership of such shares on that date was as follows:

Number Owner of shares

Fred W. Woodward_ 398

S'. R. Woodward_ 58

M. Jeanne Woodward_ 55

Elsie M. Woodward, F. Robert Woodward, M. Jeanne Woodward, and American Trust & Savings Bank of Dubuque, Iowa, as trustees of Fred W. Woodward Trust No. 1_ 200

Elsie M. Woodward, F. Robert Woodward, M. Jeanne Woodward, and American Trust & Savings Bank of Dubuque, Iowa, as trustees of Fred W. Woodward Trust No. 2- 100

Charles Murphy, executor of the Estate of Ellen Murphy, deceased_ 10

Margaret M. Quigley_ 379

Total- 1,200

The Telegraph-Herald was originally incorporated in 1901. Its corporate existence was renewed in 1921 and 1941. Under the 1941 renewal its corporate existence was extended 20 years to November 1, 1961. The common stockholders of the Telegraph-Herald held a special meeting on June 9,1960, for the purpose of renewing and extending its corporate existence and to consider placing certain restrictions on its common stock. This meeting was attended by all of the stockholders or their representatives, at which time a resolution was duly adopted by the holders of a majority of the stock extending the corporate existence of Telegraph-Herald perpetually.

A certificate for the renewal of the Telegraph-Herald’s corporate charter was issued by the secretary of state for the State of Iowa on or about June 10,1960.

The Telegraph-Herald’s 1,200 shares of common stock issued and outstanding were all voted in favor of the renewal of the corporate existence except the 379 shares owned by Margaret M. Quigley.

Section 491.25, Iowa Code Ann. (Supp. 1966), provides as follows:

491.25 Renewal — procedure

Corporations existing for a period of years may be renewed from time to time for tbe same or shorter periods, or may be renewed to exist perpetually, upon compliance with the provisions of this section and other applicable statutes.

The right of renewal is vested in the stockholders and shall be exercised by a resolution thereof adopted at any regular meeting or at any special meeting called for that purpose. 'Such resolution must be adopted 'by a majority of all the votes cast at such meeting, or 'by such other vote as is authorized or required in the company’s existing articles of incorporation.

If the renewal instrument in proper form and the necessary fees are tendered to the secretary of state for filing three months or less either prior or subsequent to the corporation’s expiration date, such renewal shall take effect immediately upon the expiration of the corporation’s previous period of existence, and in such ease, the corporate existence shall be considered as having been extended without interruption. If the renewal is filed more than three months before or after the expiration date, such renewal shall take effect upon the date such renewal with necessary fees is accepted and filed 'by the secretary of state; and in cases where filed more than three months after the expiration date, shall not be in legal effect a renewal unless the procedure provided for and the additional fees provided for in section 491.28 are fully complied with and paid.

In all cases of renewal, those stockholders voting for such renewal must purchase at its real value" the stock voted against -such renewal, and shall have three years from the date such action for renewal was taken in which to purchase and pay for the stock voting against such renewal, which purchase price shall bear interest at the rate of five percent per annum from the date of such renewal action until paid. As "amended Acts 1955 (56 G-.A.) ch.229,'§l.

The majority stockholders voting to extend the corporate existence of the Telegraph-Herald, and Margaret M. Quigley were unable to agree upon the real value of the latter’s stock. The majority stockholders, with the exception of Charles Murphy, executor of the Estate of Ellen Murphy, deceased, oh February 9, 1962, filed a “Petition in Equity” in the District Court of Iowa, in and for Dubuque County, asking the court to determine and fix the real value of Margaret M. Quigley’s stock. A decision was entered by the District Court on May 18, 1963, establishing a value of $1,750 per share. The District Court ordered that the costs be taxed 68 percent to. the plaintiffs and 32 percent to the defendent. This decision was appealed by all parties to the Supreme Court of Iowa.

In the case of Woodward v. Quigley, 257 Iowa 1077, 133 N.W. 2d 38 (1965), the Supreme Court of Iowa determined the real value of Margaret M. Quigley’s shares to be $1,650 per share. On rehearing the Supreme Court of Iowa, in Woodward v. Quigley, 257 Iowa 1077, 136 N.W. 2d 280 (1965), determined the real value to be $1,620 per share. The Supreme Court ordered that the costs be taxed one-half to the defendant and one-half to the plaintiffs.

Subsequent to the entry of final judgment in Woodward v. Quigley, supra, the 379 shares of Telegraph-Herald stock owned by Margaret M. Quigley were purchased on July 16, 1965, by the majority stockholders voting to extend the corporate existence of the Telegraph-Herald, as follows:

Number of shares Purchaser purchased

F. W. Woodward_184

F. R. Woodward_ 27

M. Jeanne Woodward_ 25

Trust No. 1_ 92

Trust No. 2_ 46

Estate of Ellen Murpby_ 5

Total_379

’ During the taxable year 1963 the majority stockholders voting to extend the corporate existence of the Telegraph-Herald, with the exception of Charles Murphy, executor of the Estate of Ellen Murphy, deceased, paid attorneys’, accountants’, and appraisers’ fees, costs, and disbursements in tbe total amount of $37,890.75 for services rendered in connection with the determination of the real value of Margaret M. Quigley’s stock as follows:

Amount of Description of expense ', payment

Clewell, Cooney & Euerste (attorneys’ fees)-$17, 224.-14

American Appraisal Co_ 8, 684.40

Ernst & Ernst (accounting fees)- 5,485. 00

Reporting services_ 4, 635. 76

Miscellaneous'_ 1,861.45

Total_ 37,890.75

The proportionate share of the fees, costs, and disbursements paid by Fred W. Woodward, during the taxable year 1963 was $20,072.23.

The proportionate share of the fees, costs, and disbursements paid by F. E. Woodward and M. Jeanne Woodward during the taxable year 1963 was $5,931.51.

The respective petitioners claimed the above amounts as itemized deductions described as “professional fees incurred in relation to income-producing property” on their returns for 1963.

The fees, costs, and disbursements set forth above were reasonable in amount and were incurred in connection with the determination of the value of the Quigley stock, except for the amounts of $185 in .the case of Fred W. and Elsie M. Woodward, and $85 in the .case of F. K. and M. Jeanne Woodward, which amounts were paid for professional services in the preparation of various tax returns and are conceded to be deductible.

Eespondent disallowed the deductions with the explanation that the amounts claimed “for ‘Professional fees incurred in relation to income producing property’ is not allowable because the fees represent capital expenditures incurred in connection with the acquisition of capital stock of a corporation, Telegraph Herald, instead of deductible expenditures.”

We think respondent was clearly correct in his disallowance.

Petitioners contend that the expenses of the litigation are deductible under section 212 of the Internal Eevenue Code of 1954¹, (formerly sec. 23(a) (2), 1939 Code), as ordinary and necessary expenses paid for the production of income, or for the management, conservation, or maintenance of property held for the production of income.

Respondent’s position based on the deficiency notice is that the litigation expenses in question were capital expenditures incurred in connection with the acquisition of capital stock and are therefore nondeductible under the provisions of section 263 of the Internal Revenue Code of 1954² and section 1.263(a)-2(c) and (e)³ of the regulations promulgated thereunder, as well as section 1.212-I(k) and (n)⁴ of the regulations.

Petitioners wanted to renew and extend the corporate existence of Telegraph-Herald. To reach this end they had to comply with the sections of the Iowa Code governing such a transaction. Those sections required petitioners in precise language to “purchase at its real value the stock voted against such renewal.” (Emphasis supplied.) That is what they did; petitioners purchased the stock; but since they were unable to agree on its “real value” with the nonvoting stockholders, they litigated that question and incurred the expenditures which they seek to deduct. The value-setting litigation and its attendant expenses were directly tied to the stock purchase and the expenses were part of the cost of the stock. As such, the expenses were clearly capital expenditures. The fact that the purchase was motivated by a desire to extend the corporate life is immaterial. Atzingen-Whitehouse Dairy, Inc., 36 T.C. 173, 183 (1961).

Both parties argue extensively that the expenditures here involved were or were not made in defense or perfection of title to the stock and so were or were not capital expenditures. Petitioners also argue that the “primary purpose” of the litigation was to determine the real value of the shares of the dissenting stockholder and that title to such shares was not at issue or in dispute. These contentions are beside tbe point and simply cloud the real issue.

To summarize, petitioners found themselves in the position of having to buy the stock of a fellow shareholder. Litigation was necessary to settle the price of the stock. The expenses in question were incurred in that litigation and no other. The result was the purchase of shares of stock by a group of shareholders from another shareholder at the litigated price. For all the record shows, petitioners still own the shares they purchased. Acquisition costs of property are not deductible. Lucas v. Commissioner, 388 F. 2d 472 (C.A. 1, 1967), affirming a Memorandum Opinion of this Court. The expenditures were capital in nature to be added to the cost of the shares and are not deductible. Atzingen-Whitehouse Dairy, Inc., supra.⁵

Reviewed by the Court.

Decisions will he entered wider Bule 50.

1 SEC. 212. EXPENSES POR PRODUCTION OF INCOME.

In the ease of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year—

(1) for the production or collection of income;

(.2) for the management, conservation, or maintenance of property held for the production of income : or

2 SEC. 263. CAPITAL EXPENDITURES.

(a) General Rule. — No deduction shall be allowed for—

****** *

3 Sec. 1.263-(a)-2 Examples of capital expenditures.

The following paragraphs of this section include examples of capital expenditures:

(c) The cost of defending or perfecting title to property.

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(e) Commissions paid in purchasing securities. * * *

4 Sec. 1.212-1 Nontrade or nonbusiness expenses.

(k) Expenses paid or incurred in defending or perfecting title to property, in recovering property (other than investment property and amounts of income which, if and when recovered, must he included in gross income), or in developing or improving property, constitute a part of the cost of the property and are not deductible expenses. * * •

*******

(n) Capital expenditures are not allowable as nontrade or nonbusiness expenses. The deduction of an item otherwise allowable under section 2X2 will not be disallowed simply because the taxpayer was entitled under subtitle A of the Code to treat such item as a capital expenditure, rather than to deduct it as an expense. For example, see section 266. Where, however, the item may properly be treated only as a capital expenditure or where it was properly so treated under an option granted in subtitle A of the Code, no deduction is allowable under section 212; and this is true regardless of whether any basis adjustment is allowed under any other provision of the Code.

5 Petitioners rely heavily on Walter S. Heller, 2 T.C. 371, affd. 147 F. 2d 376,, on this Issue, under the so-called Dobson rule. That case involved the other side of the coin, i.e., sellers’ expenses rather than purchasers’ outlays. We do not think it is necessarily applicable here. If further reading is desirable see William. T. Plumb, Jr., " ‘Non-Business’ Expenses Relating to Property,” 2 Am. U. Tax Inst. Lectures 357-360, and 4A Mertens, Law of Federal Income Taxation, sec. 25A.14, p. 40.