Opinion
No. 44018.
February 3, 1941.
Action by the estate of Isaac G. Johnson, a corporation, against the United States for the recovery back of capital stock taxes paid for the fiscal years ending June 30, 1934, June 30, 1935, and June 30, 1936.
Judgment for plaintiff.
This case having been heard by the Court of Claims, the court, upon the evidence adduced, makes the following special findings of fact:
1. Plaintiff, the Estate of Isaac G. Johnson, is a New York corporation with its principal office at Spuyten Duyvil, New York City. It was incorporated in 1904 under circumstances which will hereinafter appear.
2. Isaac G. Johnson, whose name appears in the name of plaintiff, died in 1899 at an advanced age. During his lifetime he had built up a large steel-casting foundry at Spuyten Duyvil, and at his death the foundry was being operated as a partnership in which he and his five sons were the partners.
In addition to the real estate on which the steel plant was located, Isaac G. Johnson had accumulated over a period of nearly fifty years substantial real-estate holdings, a part of which was used for the steel business and the housing of his employees and a part was acquired by him for the purpose of dealing therein at a profit. All of the real estate, including the buildings connected with the steel plant, was owned by Isaac G. Johnson in his individual capacity.
3. Isaac G. Johnson left a will under which, except for two cash bequests to a brother and sister, all of his property passed to his five children subject to a life interest of his widow, Jane E. Johnson. Jane E. Johnson and his eldest son, Elias M. Johnson, were named as executors and trustees.
Shortly after the death of Isaac G. Johnson a plan was submitted by an attorney for the estate under which the business interests of the decedent could be continued and a convenient means provided for the distribution of the estate upon its final liquidation to the various parties interested therein. Under that plan two corporations were to be organized, one to carry on the steel business and the other the real estate business.
4. December 31, 1902, the steel business was incorporated under the name of Isaac G. Johnson Company, which was the same name under which it had been carried on as a partnership. Upon organization the corporation acquired from the partnership the personal property, equipment, and good will of the steel business, giving in exchange therefor its capital stock, and similarly it purchased from the executors and trustees of Isaac G. Johnson's estate the land and buildings which were connected with the steel business and which had been owned by Isaac G. Johnson individually, by giving in exchange therefor first mortgage bonds of the corporation.
Isaac G. Johnson Company continued in active existence until about 1923, when condemnation proceedings were started by the State of New York for the acquisition of its properties, which finally resulted in such acquisition. In 1933 the only assets held by Isaac G. Johnson Company were certain income-producing securities and these securities were taken over in 1933 by plaintiff for reasons of economy in handling the affairs of the two corporations.
5. In the early part of 1904 plaintiff was incorporated under the name of "Estate of Isaac G. Johnson," with an authorized capital stock of $10,000, consisting of 100 shares of the par value of $100 each, and acquired from the executors and trustees of Isaac G. Johnson's estate the real estate which had been held by him individually, except that which had been sold to the corporation Isaac G. Johnson Company. The real estate so acquired consisted of approximately 20 acres, and as consideration for the transfer the capital stock of plaintiff was issued to the executors and trustees of Isaac G. Johnson's estate. The purposes of plaintiff were stated in the certificate of incorporation as follows: "The acquiring, buying, selling, renting, exchanging and otherwise dealing in real property, improved and unimproved; the building, construction, and alteration of houses and other structures thereon and the management and development of real property generally. The purchase and manufacture, acquiring, holding, owning, mortgaging, pledging, leasing, selling, assigning, and transferring and otherwise dealing in goods, wares, merchandise, and property of every kind and description. The acquiring, holding, owning, and dealing in stocks, bonds, debentures, notes, and other corporate and individual securities. The loaning of money secured by mortgages on real or personal property. The buying, selling, and dealing in bonds, notes, loans secured by mortgages or other liens on personal or real estate. The supervising, managing, and protecting of real and personal property and all interests in and claims affecting the same and the transacting of any or all other business which may be necessary or incidental or proper to the exercise of any or all of the aforesaid purposes of the corporation, wherever the same may be permitted by law either manufacturing or otherwise, and to the same extent as the laws of this State will permit and as fully and with all the powers that the laws of this State confer upon corporations under this Act, with full power to borrow such moneys as it may require for the purposes of its business."
Upon incorporation plaintiff proceeded to engage in the business for which it was organized and, as expressed in the "purposes" clause of the certificate of incorporation, making purchases, sales, and otherwise carrying on business, as will more fully hereinafter appear.
6. Jane E. Johnson, widow of Isaac G. Johnson, died in November 1906, which terminated her life interest in Isaac G. Johnson's estate. Final accounting, settlement, and distribution of the assets of Isaac G. Johnson's estate were made by the surviving executor and trustee, and on November 30, 1906, the executor and trustee was finally discharged by decree of the surrogate court, thus ending the liquidation of Isaac G. Johnson's estate. At that time the stocks and bonds which had been received by the executors and trustees in the transfer of the assets of Isaac G. Johnson's estate to plaintiff and to Isaac G. Johnson Company were distributed to the beneficiaries of the estate.
7. As heretofore shown, plaintiff acquired from Isaac G. Johnson's estate approximately 20 acres of land at the time of its incorporation in 1904, for which it issued capital stock. Thereafter plaintiff made further acquisitions as follows:
(a) At the time of Isaac G. Johnson's death the decedent held an undivided one-third interest in 15 acres of unimproved land in which his sister and his brother had a like interest. April 2, 1906, the 15 acres were acquired by plaintiff for a cash consideration and short-term notes.
(b) On various dates between 1906 and 1908 four parcels of land of approximately 8 acres were acquired by plaintiff in the neighborhood of parcels previously purchased.
(c) In 1906 and 1907, as a result of a partition suit with respect to property in which Isaac G. Johnson had an interest at the time of his death and a subsequent auction sale of the other portions of the property, plaintiff acquired approximately 20 acres of unimproved land.
(d) In 1906 plaintiff made a purchase for cash or its equivalent of approximately 7 acres of land.
(e) In 1907 plaintiff acquired an irregular piece of land from the New York Central Railroad Company and in 1909 acquired 1/2 acre from one party and 2 1/2 acres from another party.
(f) In 1914 plaintiff acquired a house and lot and in 1918 a small apartment house. In addition plaintiff made miscellaneous purchases from time to time to fill out existing plots owned by it.
8. Plaintiff proceeded in various ways to develop, improve, sell, and otherwise deal with the original property acquired as well as with later acquisitions. In addition to the purchases heretofore referred to, these activities included the selling, renting, exchanging of, and otherwise dealing in, real property, both improved and unimproved; the building, construction, and alteration of houses and other structures; the management and development of real property owned or controlled by it; the laying out and construction of streets, curbings, sidewalks, sewers, water and gas mains, and electric conduits, and the financing of improvements on properties owned by it. In all of its transactions plaintiff dealt in property to which it held title, and was in no sense a broker for other properties.
9. One of the means employed by plaintiff for the development and disposition of its properties was to form in 1908 a subsidiary known as the Edgehill Terraces Company, which was held, controlled, and financed by plaintiff, and its operations were under the direct charge of plaintiff. That corporation proceeded with the development of approximately 30 acres of the land theretofore owned by plaintiff. It improved the land with streets, sewers, gas and water mains, underground and electric conduits, and other types of improvement for a development of that character. It constructed houses, which were offered for sale and sold, and otherwise dealt in properties as a real estate concern. Its period of greatest activity was during the years 1909 to 1920. Funds for its development work were furnished by plaintiff from time to time as required to the extent of some $830,000.
The Edgehill Terraces Company continued in existence until 1925, when it was dissolved and its remaining assets, including about 12 acres of the land previously acquired from plaintiff, were transferred to plaintiff, which owned its entire capital stock.
10. Shortly prior to the incorporation of the Edgehill Terraces Company plaintiff joined with three other parties in 1906 in the incorporation of a real estate development company known as "Along the Hudson Company" to develop lands purchased for that purpose in the vicinity of plaintiff's other holdings. That company acquired all of its properties from owners other than plaintiff, its total acreage amounting to approximately 26 acres. The corporation operated actively as a real estate company from its organization in 1906 until, 1919, when the corporation was dissolved and the property remaining unsold was partitioned among the four interests, plaintiff taking title to the part set off to it, which consisted of about 5 acres.
11. At or about the time of the dissolution of the "Along the Hudson Company" in 1919, William F. Russell acquired 400 shares of the stock of plaintiff and became its managing director. Prior to that time all of plaintiff's stock had been held by the heirs of Isaac G. Johnson. At that time plaintiff's capital stock was increased from 100 shares to 10,000 shares of the par value of $100 per share. Russell continued as a stockholder until his death when his estate became a stockholder. In 1923 plaintiff changed its capital stock from 10,000 shares of a par value of $100 each to 10,000 shares of no par value.
12. By about 1925 plaintiff had practically ceased purchases of additional properties. Some sales were made during the period from 1926 to 1929, and other general real estate activities were engaged in but to a smaller extent than in prior years. By 1929 the total of approximately 95 acres which had been acquired by plaintiff in the various ways heretofore mentioned had been reduced to about 47 acres through sales by itself and the Edgehill Terraces Company.
13. November 4, 1929, plaintiff adopted the following resolution: "Whereas it is the policy of this corporation gradually to liquidate its affairs as its property can be advantageously disposed of and distribute its assets among its stockholders, and
"Whereas cash has now accumulated from the sale of certain properties in excess of any possible requirements in connection with the future liquidation of the corporation's affairs and of any obligations which it has, and
"Whereas a paid-in surplus stands upon the books of the corporation, said surplus relating to matters existing prior to March 1, 1913, and it is deemed to be desirable to distribute to such extent as the cash in hand will justify, such surplus as a liquidating dividend to the stockholders of the corporation, now
"Be it resolved that the sum of $150,000 out of the funds in the treasury be distributed pro rata among the holders of the stock of this corporation, being at the rate of $20 per share of stock held, as liquidating dividend No. 1 thereon, same to be paid from the paid-in surplus to the stockholders of record as of November 4, 1929, and the officers of the corporation are hereby authorized and directed to make payment to the stockholders in accordance with the terms of this resolution."
The liquidating dividend provided by the above resolution was the first liquidating dividend paid by plaintiff and no subsequent liquidating dividend was paid until after the period here involved, namely, November 1938, when a dividend of $5.25 per share was paid.
14. In about 1929 plaintiff discontinued many of the activities previously engaged in and generally reduced its operation to the maintenance and management of its remaining properties and the making of such sales as were deemed advantageous. It continued in that manner to and including the year 1936 as well as for some time thereafter, maintaining an office with an accountant, two stenographers, and one or two outside ground keepers, receiving rents, making repairs, seeking legal advice, negotiating with promoters and architects, and considering and undertaking agency contracts and projects for the favorable marketing of its holdings. During that period it was generally engaged in activities which had for their purpose the ultimate disposition of its existing holdings at a profit without the undertaking of any new activities which would interfere with or unduly retard an early advantageous disposition of its properties, and throughout that period it indicated a willingness to dispose of its property only under what it considered advantageous terms.
The real-estate market was adversely affected subsequent to 1929 and thereafter continued unsettled at least until about 1936. Various developments of projects in the way of streets, parkways, and a memorial bridge, were undertaken by state and municipal authorities on or near plaintiff's holdings during the period 1929 to 1936, which influenced the character of plaintiff's property. Plaintiff's aim and effort have been directed towards the maintenance of a certain type of development in the area of its holdings which it considered for its best interest in the ultimate disposition thereof.
For the years 1934, 1935, and 1936 plaintiff received rents and other income of approximately $30,000 to $60,000 per year and had expenses, including taxes, repairs, office salaries, and other expenses of about the same amount. It filed income tax returns for those years.
15. In December 1935 plaintiff's directors took the following action: "The meeting was preceded by a general discussion at length of the conditions bearing on the liquidation of the corporation's real estate holdings, in which the representatives of the several stock-holding interests participated. As a result of the exchange of ideas among those present and the discussion had, it was the consensus of opinion that a study should be made of the entire situation with a view to the corporation being in a position to liquidate its holdings in the market or through some special plan, as soon as the general conditions of the real estate market should make it practicable to do so with advantage; that in order to be in readiness to act at an opportune time, the advice and co-operation of a competent real estate broker or agent should be arranged for."
Following the meeting referred to above, plaintiff entered into a contract with a broker in New York City by which plaintiff gave the broker a two-year period in which he was to have the exclusive right to sell or otherwise dispose of plaintiff's property as its agent, subject, however, to plaintiff's general direction and approval. During the term of the contract with the broker, a contract was entered into by plaintiff with a corporation to purchase a part of plaintiff's holdings for development and with an option for the purchase by the corporation of the other holdings of plaintiff for future development. Plaintiff had no financial interest in the development except as a seller of the unimproved property. After the contract had been executed the development corporation discovered that it could not proceed with its improvements because of lack of satisfactory sewers in that area, and the contract was cancelled by mutual consent. Following the failure to have the foregoing contract carried out because of the lack of sewers, plaintiff's officers induced the municipal authorities to proceed with the construction of sewers and thereby remove that obstacle in a future sale of the property.
16. In 1912 the estimated value of the holdings of plaintiff was $727,877.27 and in 1920, $1,583,766.15. Such increase was largely attributable to purchases and other real estate activities during that period, which was an active period of its existence. In 1929 the value of plaintiff's holdings was greater than in 1920, at least some of which increase was due to the acquisition in 1925 of the remaining assets of the Edgehill Terraces Company when it was dissolved, as heretofore shown. In 1937 an estimated value of plaintiff's holdings was $2,300,000.
17. August 24, 1934, plaintiff filed its capital stock tax return for the year ended June 30, 1934, declaring a value of $1,500,000 for its capital stock. On such return plaintiff stated that it was in liquidation and made claim for exemption on the ground that it was not doing business within the meaning of the capital stock tax act, attaching to such return a claim for exemption in the form of an affidavit, sworn to by its president and treasurer, which read in part as follows:
"(2) The corporation was organized for the purpose of taking title to the real estate formerly belonging to Isaac G. Johnson, deceased, in which a number of heirs and devisees were interested and thus providing through the medium of the stock of the corporation for a distribution among said heirs and devisees and at the same time providing a more convenient means for the liquidation of the said assets and for the handling of same pending such liquidation.
"(3) The certificate of incorporation provided the usual broad powers permitted to a corporation of general character, but such powers have been exercised only to the extent required in the conservation and liquidation of the assets of the corporation, and not in the conduct of a general real estate brokerage or other business.
"(4) The corporation has definitely abandoned the business purposes authorized by its charter and maintains its corporate organization only for the purpose of liquidation of its assets and distribution by way of liquidating dividends to its stockholders.
"(5) The corporation abandoned the purposes listed in its charter with respect to operating as an active real estate corporation in the purchase, sale, and management of real estate and the improvement thereof, the construction of buildings and the carrying on generally of a real estate or other related business for the reason that its stockholders, as fully explained above, consisted only of the heirs, devisees, and persons interested in the property left by Isaac G. Johnson, deceased, and the said stockholders desire the liquidation and distribution of the value represented by such assets as soon as same can be disposed of to advantage and turned into cash or distributable securities."
18. July 18, 1935, plaintiff filed its capital stock tax return for the year ended June 30, 1935, declaring a value for its capital stock of $1,467,065.76. A claim for exemption from the provisions of the capital stock tax act was made on the same ground as in the return for 1934.
19. August 13, 1936, the Commissioner advised plaintiff that its claims for exemption for the years 1934 and 1935 were rejected. Assessment was accordingly made by the Commissioner of capital stock tax for 1934 of $1,500, with interest of $267, and of capital stock tax of $1,467 and interest of $99.79 for 1935.
20. October 10, 1936, plaintiff filed a claim for abatement of $3,517.16, capital stock tax and interest assessed for the years 1934 and 1935, on the ground that no activities had been carried on during those years for profit, "but all activities have related solely and primarily to the disposition of assets held, and the proceeds of sales have been distributed so far as conditions would permit as liquidating dividends to the stockholders." The Commissioner rejected that claim February 9, 1937.
21. July 18, 1936, plaintiff filed a capital stock tax return for the year ended June 30, 1936, declaring a value for its capital stock of $3,000,000 and making a similar claim for exemption from taxation as in the returns for 1934 and 1935. June 4, 1937, the Commissioner rejected the claim for exemption.
The increase in the declared value of the capital stock for 1936 over that shown in the two preceding years was for the purpose of showing a value more nearly corresponding to the sale value of the property under reviving normal real estate conditions, and with the thought that while such an increase would require a larger payment of capital stock tax, it should reasonably be expected to effect a greater saving in excess profits tax on profits realized from sales than the increase in capital stock tax from the increased declared value.
22. By arrangement made between plaintiff and the collector plaintiff's capital stock tax for 1934, 1935, and 1936, with penalties and interest, was paid as follows:
February 26, 1937 $500.00 March 17, 1937 500.00 April 27, 1937 500.00 May 27, 1937 500.00 June 23, 1937 500.00 July 16, 1937 500.00 August 27, 1937 500.00 September 28, 1937 500.00 October 30, 1937 500.00 November 20, 1937 2,313.54 December 31, 1937 234.04 --------- Total $7,047.58
23. January 12, 1938, plaintiff filed a claim for refund of capital stock tax and interest paid for the years 1934, 1935, and 1936 in the amount of $7,047.58. The claim was based upon the same contention as previously made, namely, that plaintiff was in process of liquidation and therefore exempt from taxation, as it was not doing business.
January 21, 1938, the Commissioner advised plaintiff that its claim for refund was rejected in full.
24. From all the evidence it is found that during the period involved the plaintiff has confined its activities to the owning, holding, and preservation of its property with intent to dispose of the same and distribute its avails in liquidation, and did only the acts necessary to continue that status.
John Jay McKelvey, of New York City, for plaintiff.
Fred K. Dyar, of Washington, D.C. and Samuel O. Clark, Jr., Asst. Atty. Gen. (Robert N. Anderson, of Washington, D.C., on the brief), for defendant.
Before WHALEY, Chief Justice, and WHITAKER, LITTLETON, JONES, and GREEN, Judges.
This is a suit for the recovery of capital stock taxes paid for the fiscal years ending June 30, 1934, June 30, 1935, and June 30, 1936, imposed under the revenue acts then in force. Proper refund claims were filed and rejected.
The sole question presented by the case is whether the plaintiff was, during the years involved, "carrying on or doing business" within the meaning of the applicable laws.
The plaintiff is a corporation operating in New York City. Isaac G. Johnson, whose name appears in the corporate designation of plaintiff, died in 1899. He operated in partnership with his five sons a large steel-casting foundry, and in addition had some large real estate holdings. By his will Mr. Johnson left, with minor exceptions, all his property to his five sons, subject to a life interest of his widow. In the disposition of the estate two corporations were organized, one of which acquired from the executors the steel-casting business, with the real estate occupied by it, under the name of "Isaac G. Johnson Company," the other, called "Estate of Isaac G. Johnson," is the plaintiff herein and was incorporated in 1904. This corporation bought from the executors all the other real estate held by Isaac G. Johnson, giving therefor its stock. The first-named corporation continued until 1933, when upon final liquidation its remaining assets passed to plaintiff.
The "purpose" clause of plaintiff's certificate of incorporation granted broad powers usual to real estate companies, and from its incorporation down to 1929 the plaintiff engaged in the general activities permitted. In 1929, by a resolution, the plaintiff declared that "* * * it is the policy of this corporation gradually to liquidate its affairs as its property can be advantageously disposed of and distribute its assets among its stockholders, * * *" and distributed a liquidating dividend among its stockholders. Thereafter, the plaintiff discontinued many of the activities previously engaged in and generally reduced its operation to the maintenance and management of its remaining properties and the making of such sales as were deemed advantageous. It continued in that manner to and including the year 1936, and for some time later, but maintained an office with an accountant, two stenographers, and one or two ground keepers; receiving rents, making repairs, considering and undertaking agency contracts and projects for the favorable marketing of its holdings. During this period it was generally engaged in transactions which had for their purpose the ultimate disposition of existing holdings at a profit. At no time within this period did plaintiff purchase or otherwise acquire any new property, or engage in any activities not necessary for the preservation and care of the property which it then held, and the revenues which might be derived therefrom.
In determining the issue presented by the case before us, no very definite line can be drawn. As was said in Von Baumbach v. Sargent Land Co., 242 U.S. 503, 516, 37 S. Ct. 201, 204, 61 L.Ed. 460, "the decision in each instance must depend upon the particular facts before the court," and expressions can be found in the various decisions on the subject which do not seem to be entirely in harmony. It is contended by defendant that any concern operating in however slight degree to the end of profit or gain is "doing business" within the intent of the taxing act. We do not so read the law or interpret the decisions which so far as the Supreme Court is concerned were made under the statute taxing corporations as it then stood, upon the question of what constituted being engaged in business. The defendant relies largely upon certain statements made in the opinion rendered in Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas. 1912B, 1312, in which it was held that the several plaintiffs were engaged in business. We think it is unnecessary to review this case as it has been fully considered by the Supreme Court in later decisions in which its meaning was defined and its application determined. To these decisions reference will be made hereinafter.
In the case of McCoach v. Minehill S. H. Railway Co., 228 U.S. 295, 33 S.Ct. 419, 424, 57 L.Ed. 842, it was said that, "The distinction is between (a) the receipt of income from outside property or investments by a company that is otherwise engaged in business; in which event the investment income may be added to the business income in order to arrive at the measure of the tax; and (b) the receipt of income from property or investments by a company that is not engaged in business except the business of owning the property, maintaining the investments, collecting the income, and dividing it among its stockholders. In the former case the tax is payable; in the latter not."
If we apply the rule laid down above, it is clear that the plaintiff was not doing business in the period involved as it made no investments and was not in receipt of income from what might be called outside property. Its only operations were in owning the property, maintaining the investments, collecting the income and dividing it among the stockholders.
It is true that there was in this case a dissenting opinion, but this dissenting opinion appears to have been based largely on the fact that the taxpayer maintained a considerable force in active employment and entirely apart from the lease of its property, and especially that it so deposited and invested its funds to create an annual income which depended largely on the efficiency of management. The dissenting opinion, as we view it, is not in conflict with that portion of the majority opinion which we have cited.
In the instant case the plaintiff corporation as originally constituted had broad powers and it engaged in the usual activities of a corporation created for the purpose of dealing in real estate for a profit. It carried on this business for a number of years during which it made outside investments and engaged in various transactions which were not necessary to preserve the interest which the plaintiff had in property already owned but for the purpose of making a profit otherwise. Twenty-five years after its original incorporation it declared that its activities would henceforth be confined to liquidation of its assets and the preservation of its property. As a matter of course it endeavored in closing out this property to make a profit and the condition of the real estate market at the time rendered the process of liquidation rather slow, but this court has held that the fact that a profit is sought in the liquidating process is not sufficient to make the corporation subject to the tax.
It is urged by defendant that the tax is upon the privilege of doing business in a corporate capacity. This is true, but all the transactions of a corporation must be done in its corporate form and if this alone were sufficient then a corporation which exercised any activity whatever would be liable to the tax. That this is not the rule is too well established to require the citation of any decisions. Two elements must appear to make the capital stock tax applicable: (1) transactions in corporate form; and (2) these transactions must be of such a nature as to constitute doing business. If the property had been left in the hands of the executor and he had proceeded to do the same things which were done by the corporation in the liquidating process, no one would contend that the executor was carrying on a business. The operations and transactions of the corporation were carried on merely for the purpose of reducing the property of the estate to a form in which it could be readily distributed among the heirs and such activities, we think, do not constitute a business.
In support of defendant's argument Edwards v. Chile Copper Co., 270 U.S. 452, 46 S.Ct. 345, 346, 70 L.Ed. 678, is quoted, but the quotation shows that the corporation held taxable was doing what it "principally was organized to do [which was to carry on a complicated set of transactions] in order to realize profit". In the instant case, an examination of the purpose clause in the certificate of plaintiff's incorporation (as set out in Finding 5) shows a long list of activities nearly all of which had been abandoned. In fact only the holding, owning, and selling of real estate remained and the principal purpose was not profit but to liquidate the estate.
The case of Edgar Estates Corp. v. United States, 65 Ct.Cl. 415, is cited in support of defendant's contention. But in that case it appeared that the plaintiff purchased and sold stock at a profit and it was held that considering all the activities of the corporation a degree of business activity was maintained within the meaning of the revenue law although the amount of business done was small.
The case of the Union Land Timber Co. v. United States, 65 Ct.Cl. 129, presents facts quite similar to those which appear in the case at bar. Like the corporation in the case before us, the Union Land Timber Co. was granted and exercised broad powers under its original charter of incorporation but eventually the plaintiff corporation resolved to liquidate and in pursuance of this resolution its activities were reduced to the necessities of liquidation. From that time on its efforts were to realize the best possible price for its lands and other property but the progress of disposition was delayed and required many years. This court in its opinion quoted from the case of Von Baumbach v. Sargent Land Co., supra, as follows: "The fair test to be derived from a consideration of all of them is between a corporation which has reduced its activities to the owning and holding of property and the distribution of its avails, and doing only the acts necessary to continue that status, and one which is still active and is maintaining its organization for the purpose of continued efforts in the pursuit of profit and gain and such activities as are essential to those purposes."
Applying this rule, which we think is also applicable to the case at bar, the court held that the Union Land Timber Co. was not subject to the tax.
This court further held in the same opinion that the fact that a liquidating corporation put forth its best efforts to realize the greatest possible sum for its assets and that profits might at times be realized does not show it was "doing business" within the intent of the taxing act.
The plaintiff, during the period involved in the case, confined its activities to the owning, holding, and preservation of its property with intent to dispose of the same and distribute its avails in liquidation, and did only the acts necessary to continue that status. Applying the rules laid down in the Union Land Timber Co. case, supra, to the facts before us, we are clear that the plaintiff was not subject to the tax.
The cases of Clallam Lumber Co. v. United States, D.C., 34 F.2d 947; Clallam Lumber Co. v. United States, 37 F. Supp. 542, decided July 29, 1940, and other decisions might be cited in support of the conclusion which we have reached.
It follows that plaintiff is entitled to recover the taxes paid for the years in controversy with interest as provided by law. Judgment will be rendered accordingly.
JONES, J., took no part in the decision of this case.