Opinion
Docket No. 7876.
1946-06-24
RHODE ISLAND HOSPITAL TRUST COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Harold B. Tanner, Esq., for the petitioner Carl A. Stutsman, Esq., for the respondent.
1. Prior to 1932 petitioner, a banking corporation, made mortgage loans on real estate located throughout the United States. With the advent of the real estate depression, a subsidiary corporation, R, was organized in 1932 for the purpose of acquiring, operating, leasing, and eventually disposing of the properties covered by petitioner's mortgages. Petitioner owned all the stock of R. In some instances petitioner foreclosed the mortgages and sold the properties to R for the face amount of the mortgages, plus foreclosure expenses. In other instances R bought the mortgages from petitioner for the face amount, without interest, and foreclosed upon them itself. From 1932 to 1944, R acquired, managed, and disposed of some 809 parcels of real property, and, because of operations in a falling real estate market, it suffered substantial operating losses. From time to time petitioner made additional contributions to the R corporation's capital to offset the losses. In 1941 R purchased, at book value, and retired 809 shares of its own stock held by petitioner. The purpose of the transaction was solely to reduce capital, and at that time there was no plan of complete liquidation of R. In 1942 further shares were purchased and retired. In December 1944 petitioner disposed of about 25 per cent of its remaining R corporation stock to an outside individual, and shortly thereafter R corporation was liquidated and dissolved. Held, that R corporation was no mere sham whose separate corporate entity may be ignored under the rationale of Higgins v. Smith, 308 U.S. 473; that petitioner's basis for gain or loss on the R corporation stock was its original cost as adjusted for subsequent capital contributions and losses availed of in prior-year consolidated returns; that section 112(b)(6) of the Internal Revenue Code is not applicable under the facts here present; and that petitioner is entitled to deduct the claimed long term capital loss sustained in 1941 upon the retirement of the 805 shares of R corporation stock.
2. Petitioner has failed to prove it is entitled to a refund of an alleged overpayment of taxes in 1941. Harold B. Tanner, Esq., for the petitioner Carl A. Stutsman, Esq., for the respondent.
In this proceeding we are concerned with an income tax deficiency of $35,864.13 determined by respondent against petitioner for the calendar year 1941. Petitioner claims an overpayment of $16.73. Respondent disallowed a loss of $464,637.95 claimed by petitioner as a long term capital loss in connection with the retirement of 805 shares of stock in its wholly owned subsidiary, and petitioner is here contesting the disallowance.
Some of the facts have been stipulated and others are found from the testimony and documentary evidence.
FINDINGS OF FACT.
Petitioner is a Rhode Island banking corporation, with its principal office in Providence. Its tax return was filed with the collector for the district of Rhode Island.
Prior to 1932 petitioner had at various times made loans on real estate in a number of states throughout the country, taking mortgages thereon as security. With the advent of the business depression immediately preceding and during 1932, many of the loans were in default, and petitioner was faced with the necessity of foreclosing its mortgages. Petitioner's officers and directors considered it impractical and undesirable for petitioner, as a banking institution, to hold title to, manage, and dispose of the widely scattered real estate. For that reason it was deemed advisable to organize a subsidiary corporation. Accordingly, Rimnik Corporation, hereinafter sometimes called ‘Rimnik,‘ was organized under the laws of Rhode Island on or about September 30, 1932, for the purpose of acquiring, operating, leasing, and eventually disposing of properties acquired by petitioner by virtue of its ownership of mortgages.
Rimnik had only one class of stock, no par common. Its originally authorized capital consisted of 1,000 shares, but the authorized capitalization was from time to time increased. All the issued and outstanding stock was held by petitioner, and petitioner paid in originally $1,000 per share.
At the time Rimnik was organized it was intended that the properties it acquired would eventually be disposed of and liquidated whenever in the judgment of its officers and directors each property could be disposed of most advantageously. However, no consideration was given at that time to the eventual liquidation of Rimnik itself, for it was not known how long it would take to accomplish the purposes for which the corporation was organized or whether, when the purposes had been accomplished, some other uses would be found for the corporation.
In some instances Rimnik purchased the mortgage from petitioner and foreclosed upon it. In other instances petitioner foreclosed the mortgage and Rimnik purchased the property. In the latter cases Rimnik paid the face amount of the mortgage plus expenses of foreclosure; in the former, it paid petitioner the face amount of the mortgage, without interest. The properties so acquired were held by Rimnik for varying lengths of time. Because of operations in a falling or ‘buyer's‘ market, Rimnik sustained losses upon the disposition of most of these properties, and it had operating losses rather consistently throughout its existence, aggregating approximately $1,200,000. Petitioner from time to time made additional contributions to the capital of Rimnik to offset these operating losses.
Rimnik had its own officers and board of directors and kept its own corporate records and books. While the officers and directors of Rimnik were also officers and directors of petitioner, their capacities were different in the two corporations, and not all of the officers and directors of petitioner were connected with Rimnik. Rimnik always acted pursuant to vote of its own board of directors, and no officers or committees of petitioner, as such, ever had or exercised any authority over Rimnik.
During the course of its operations Rimnik held 321 directors' meetings and 18 stockholders' meetings. It had a total of 809 transactions of purchase of real estate and as many additional transactions of sale as were necessary to dispose of these properties. It had its own bank account. Its activities consisted of buying properties at foreclosure sales; the purchase of mortgages, of government securities, and of stock of other corporations; the management and operation, including leasing, operating, repairing and selling of sundry properties; and the ultimate sale of all properties acquired. It handled or managed a number of properties held in petitioner's trust accounts, acting as cotrustee with petitioner. Its aggregate cash receipts and disbursements amounted to approximately 29 millions of dollars.
Pursuant to a vote of its stockholders on November 10, 1941, Rimnik purchased for retirement, and forthwith retired, 805 shares of its capital stock held by petitioner, the consideration paid being $775 per share, the then book value of Rimnik stock, or a total of $623,875. The outstanding stock of Rimnik at that time consisted of 3,900 shares, all held by petitioner. The 805 shares purchased were a part of 1,441 shares issued prior to and outstanding on October 31, 1933. Petitioner's cost on these shares was $1,373.66 per share, consisting of an original cost of $1,000, plus a pro rata allocation of subsequent contributions to capital.
At the time of retirement of the 805 shares in 1941, Rimnik had disposed of a considerable portion of its real estate holdings and had more liquid assets than were required in its business. The purpose of the retirement was to reduce capitalization and remove the unneeded capital from the business. No plan of complete liquidation of Rimnik had then been adopted, and its officers did not then know when its purposes would be accomplished or whether it would be liquidated at any particular time.
In 1942 Rimnik disposed of a number of its real properties and again found itself in possession of more capital than was needed in the business. Accordingly, pursuant to stockholders' vote on December 9, 1942, it purchased from petitioner for retirement, and forthwith retired, 394 shares of its capital stock at the then book value of $725 per share, a total of $285,650.
After 1941 Rimnik continued to purchase mortgages and properties on which mortgages had been foreclosed. From the beginning of 1942 through 1944, it acquired 22 additional items of realty. Its cash disbursements in the same period aggregated, roughly, $11,000,000.
By the fall of 1944 Rimnik had disposed of the great bulk of its real estate holdings, and some thought was then given to the liquidation of Rimnik. Petitioner had a prospective purchaser for all its Rimnik stock. The purchaser was interested in acquiring the Rimnik Corporation and was at first offering petitioner a premium for its Rimnik stock, but was not desirous of buying the corporation while it had real estate among its assets. Rimnik then had five pieces of realty, all subject to contract of sale. In December 1944 Rimnik began negotiations with John B. Carpenter, a real estate dealer, looking toward the sale of these properties to him. Before these negotiations were completed, the prospective purchaser of petitioner's stock in Rimnik sought to withdraw from the transaction and upon the payment of a penalty was allowed by petitioner to do so.
Petitioner, as the sole stockholder of Rimnik, determined in December of 1944 to bring about the liquidation of Rimnik. It carried its Rimnik investment on its books at a figure of approximately $1,800,000, and by the middle of December Rimnik had only about $240,000 in real estate holdings. Petitioner was desirous of removing a nonearning asset from its books. It was determined therefore to liquidate Rimnik, regardless of tax consequences, but petitioner's comptroller was interested in the liquidation being carried out in such a way that a proper tax result would be accomplished and therefore sought advice of counsel. Petitioner's counsel suggested that, in view of the unsettled construction of section 112(b)(6) of the code, it would be advisable for petitioner to dispose of a part of its Rimnik stock to outside interests before liquidation.
Thereafter petitioner entered into negotiations with Carpenter for the purchase of about 25 per cent of its Rimnik stock. On December 26, 1944, Rimnik's directors voted to sell Carpenter its five remaining parcels of real estate, subject to the contracts of sale, at a discount of 1 1/2 per cent. The cash payment, amounting to $162,897.28, was financed entirely by Carpenter out of his own funds. The conveyances were made, and Rimnik's assets were thus reduced to cash and government bonds. Its liabilities were paid, and the exact value per share of its stock was then ascertained to be $694.24.
On the same date, December 26, 1944, petitioner's executive committee voted to sell 681 shares of the then outstanding 2,701 shares of Rimnik stock to Carpenter at $694.24 per share. In making the offer, petitioner informed Carpenter that it intended to vote its remaining stock in the near future in favor of the dissolution and liquidation of Rimnik. Carpenter accepted the offer and, in order to pay the purchase price, borrowed money from the Second National Bank of Boston on the security of his own note, with the stock as collateral. In the afternoon of December 26 the stock was transferred to Carpenter upon the books of Rimnik, and a new certificate therefor was issued to him. Thereafter, on the same day, a meeting of the stockholders of Rimnik was held and it was voted to distribute all the assets of the corporation and wind up its affairs and dissolve.
On December 27 the assets of Rimnik were distributed pro rata among the stockholders, petitioner and Carpenter, and all the stock was surrendered and canceled. The stockholders received $694.24 per share. In court proceedings held on December 29 a decree was entered dissolving Rimnik.
Carpenter, as an independent real estate man, had had business dealings with both petitioner and Rimnik for a number of years. He was not, however, a stockholder or employee of either. He was primarily interested in obtaining the real estate from Rimnik with a chance to make a small profit thereon, but he considered that he could not have secured it without, at the same time, purchasing a part of petitioner's stock in Rimnik. He thought that in all probability Rimnik would be shortly liquidated and that he took no very great risk in buying the Rimnik stock, but that if there had been any delay the interest he was required to pay on the borrowed money would have mounted up. He did pay the lending bank $500 for the use of the borrowed money and was not reimbursed therefor in any manner by petitioner. Petitioner did not agree to indemnify him. On the entire transaction Carpenter realized a profit of something less than $2,000.
There was no connection between the 1941 stock purchase and retirement transaction and the liquidation and dissolution in 1944. Neither petitioner nor Rimnik was a personal holding company or foreign personal holding company at any time material here.
OPINION.
ARUNDELL, Judge:
Petitioner contends that the purchase and retirement by Rimnik of 805 shares of its own capital stock in 1941 resulted in a long term capital loss to petitioner which it is entitled to deduct in full, since in that year the statute placed no limit on the deductibility of long term capital losses.
The reason set out in the deficiency notice for disallowing the claimed loss was the following:
SEC. 117 (I.R.C.). CAPITAL GAINS AND LOSSES.(d) LIMITATION ON CAPITAL LOSSES.— Long-term capital losses shall be allowed, but short-term capital losses shall be allowed only to the extent of short-term capital gains.
The deduction claimed in the amount of $464,637.95 on account of an alleged long term capital loss in connection with the surrender by your corporation of 805 shares of capital stock of Rimnik Corporation, under the facts and circumstances of the case which disclose domination and control of the said corporation by your corporation, requires the non-recognition of the separate corporate entities and consequently the claimed loss does not come within the provisions of section 115(c) of the Internal Revenue Code and is not a loss recognizable under the provisions of section 112.
Respondent's theory of the case, as elaborated at the hearing and in his brief, is that Rimnik was so dominated and controlled by petitioner that for tax purposes it should not be recognized as a separate corporate entity, under the rationale of Higgins v. Smith, 308 U.S. 473. That case involved sales of securities between an individual and his wholly owned corporation— a corporation which, as the Supreme Court said, ‘was his corporate self.‘ It established the proposition that if a taxpayer elects to do business as a corporation he must accept the tax disadvantages, whereas the Government is not bound to acquiesce in the taxpayer's election, but may look at actualities and, upon determining that the form used for doing business ‘is unreal or a sham, may sustain or disregard the effect of the fiction as best serves the purpose of the tax statute.‘ That decision, however, did not give the Treasury Department a free rein to recognize or not to recognize corporate entities at will. See National Investors Corporations v. Hoey, 144 Fed.(2d) 466. Disregard of a corporate entity under Higgins v. Smith, supra, is dependent upon a finding that it is but a fiction or a sham.
There can be no doubt that there were legitimate business reasons for the organization and operation of Rimnik. It was impractical for petitioner, as a banking institution, to engage in the real estate business and to hold, manage, and dispose of the real properties located in a number of states. Rimnik acquired, managed and disposed of more than 800 separate parcels of realty during the course of its existence, and its cash receipts and disbursements totaled more than $29,000,000. It had its own board of directors and officers, through whom it acted; it had its own books and records and was never subject to the control of any officers or committees of petitioner, as such. In view of the extensive business operations of Rimnik and of all these other factors, to conclude that it was but a pure fiction and a sham would stretch even the most elastic imagination beyond its limits. There is, of course, always a certain measure of control exercised by a parent corporation over its subsidiary, but we are unable to find here that kind of domination and control which would warrant a disregard of the separate corporate existence of Rimnik.
Respondent next contends that the cost of petitioner's investment in the Rimnik stock is not the proper basis for determining gain or loss upon the disposition thereof. This argument stems at least in part from his assumption that Rimnik was lacking in substance and that transactions between petitioner and Rimnik were unreal. His position is that Rimnik paid inflated prices for the properties it acquired from petitioner; and he states that, were it not for this, he would not challenge petitioner's use of its cost as its basis under section 113.
The cost of petitioner's investment in the shares retired in 1941 was $1,373.66 per share.
Respondent's contention that the cost is not the proper basis, for purposes of this case, appears to proceed upon the inferences he draws from the fact that Rimnik sustained large operating losses. From this he deduces, and contends, that Rimnik consistently paid in excess of the fair market value for the properties it acquired from petitioner, and that petitioner, in some undetermined amount, obtained an immediate return of a part of its capital investment. As opposed to these inferences, the record contains the positive testimony of petitioner's expert witness, the president of Rimnik, who had had years of experience in valuing real estate and who made many trips to and personal inspection of the properties acquired by Rimnik, that at no time did Rimnik pay more than the then market value of the properties. Respondent produced no witnesses, expert or otherwise, and repeated attempts upon cross-examination were not successful in weakening this testimony. The operating losses of Rimnik were satisfactorily explained by the fact that Rimnik operated in a falling real estate market. We think that petitioner used the proper basis in computing its loss.
This figure multiplied by 805 shares gives a total cost of $1,105,796.30, which, less the amount of $623,875 received by petitioner, indicates a loss of $481,921.30. The loss claimed by petitioner in its return was $464,637.95. The return is not in evidence, but respondent on brief explained that because certain losses sustained by Rimnik in 1933 and 1934, aggregating $41,962.04, were availed of by petitioner in consolidated tax returns, petitioner had reduced its basis by the $17,283.35 thereof allocable to the 805 shares; and accordingly the loss claimed on the return was computed on an adjusted cost basis of $1,088,512.95.
Finally, respondent contends that section 112(b)(6) of the code
operates to prevent recognition of the loss. That section provides, in substance, that no gain or loss is to be recognized upon the receipt by a corporation of property distributed in complete liquidation of a subsidiary corporation. It is applicable to a distribution which is one of a series of distributions by the liquidating corporation in complete cancellation or redemption of all its stock in accordance with a plan of liquidation carried out within three years, if the parent corporation owns at least 80 per cent of the stock continuously from the adoption of the plan until completion of the liquidation. Respondent argues that there was a plan of liquidation at the time of the 1941 stock retirement; that the 1941, 1942, and 1944 stock transactions were all but steps in the series of distributions under the plan; that the sale of 25 per cent of stock in 1944 to Carpenter was for the sole purpose of breaking the affiliation between petitioner and Rimnik and was lacking in bona fides; and that therefore petitioner at all times owned more than 80 per cent of the stock in Rimnik.
SEC. 112. RECOGNITION OF GAIN OR LOSS.(b) EXCHANGES SOLELY IN KIND.—(6) PROPERTY RECEIVED BY CORPORATION ON COMPLETE LIQUIDATION OF ANOTHER.—No gain or loss shall be recognized upon the receipt by a corporation of property distributed in complete liquidation of another corporation. For the purposes of this paragraph a distribution shall be considered to be in complete liquidation only if—(A) the corporation receiving such property was, on the date of the adoption of the plan of liquidation, and has continued to be at all times until the receipt of the property, the owner of stock (in such other corporation) possessing at least 80 per centum of the total combined voting power of all classes of stock entitled to vote and the owner of at least 80 per centum of the total number of shares of all other classes of stock (except non-voting stock which is limited and preferred as to dividends), and was at no time on or after the date of the adoption of the plan of liquidation and until the receipt of the property the owner of a greater percentage of any class of stock than the percentage of such class owned at the time of the receipt of the property; and(D) such distribution is one of a series of distributions by such other corporation in complete cancellation or redemption of all its stock in accordance with a plan of liquidation under which the transfer of all the property under the liquidation is to be completed within three years from the close of the taxable year during which is made the first of the series of distributions under the plan, except that if such transfer is not completed within such period, or if the taxpayer does not continue qualified under subparagraph (A) until the completion of such transfer, no distribution under the plan shall be considered a distribution in complete liquidation.
It is unnecessary that we pass upon all these contentions, for if any element is lacking it is sufficient to render the statute inapplicable. We are not here directly concerned with whether petitioner suffered any recognizable or deductible loss in 1942 and 1944, for those years are not before us. Only the loss upon the 1941 transaction is directly in issue. Officers of Rimnik, as well as an officer of petitioner, testified that there was no connection whatever between the 1941 stock retirement transaction and the final liquidation in 1944; that there was no plan of liquidation in 1941; and that it was not then known when or definitely whether Rimnik would be finally liquidated. We see no reason to disregard their testimony, and we have found as a fact that there was no plan of liquidation in 1941 and no connection between the 1941 transaction and the final liquidation in 1944. Therefore, section 112(b)(6) is not applicable.
It follows that respondent erred in disallowing the loss claimed by petitioner, and petitioner is accordingly sustained as to this issue.
Petitioner's claimed overpayment of $16.73 is predicated upon the fact that in determining the deficiency respondent allowed an increased deduction for capital stock tax, which had been understated in petitioner's return. Petitioner's computation of the amount of the claimed overpayment is not shown. It is alleged in the petition that the return for the year 1941 was filed and the tax paid on March 11, 1942. Respondent, in his answer, denied the allegation and avers that the date was March 16, 1942. Petitioner produced no evidence as to the time the return was filed and the date the tax was paid. The return was not offered in evidence. The petition herein was filed May 2, 1945. Petitioner has failed to demonstrate that it comes within the provisions of section 322(d) of the code, and accordingly as to this issue the respondent is sustained.
Decision will be entered that there is no deficiency and no overpayment.