Opinion
Docket Nos. 12203 12204 12205 12206 12207.
1948-09-28
ROSE KAUFMANN, PETITIONER, ET AL.,* v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Edward I. Goldberg, Esq., for the petitioners. Stanley L. Drexler, Esq., for the respondent.
Sale of apartment house to which petitioner held title during negotiations by its president, who was not a stockholder, held to have been made by petitioner, and not by its stockholders after liquidation, resulting in gain taxable to petitioner. Commissioner v. Court Holding Co., 324 U.S. 331; Fairfield Steamship Corporation, 5 T.C. 566, followed. Edward I. Goldberg, Esq., for the petitioners. Stanley L. Drexler, Esq., for the respondent.
These proceedings were brought for a redetermination of a deficiency of $18,274.06 in income tax of Columbia Holding Corporation, petitioner herein, for the period January 1 through March 31, 1944; and for the liability y of the other petitioners as transferees. The transferee liability is conceded, and the sole issue for decision is whether the corporation assets were sold by the Columbia Holding Corporation, or whether their sale was made by its former stockholders.
The facts were established by stipulation of the parties, by oral testimony, and by documentary evidence. Those facts hereinafter appearing which are not from the stipulation are otherwise found from the record.
FINDINGS OF FACT.
The stipulated facts are hereby found accordingly.
The returns of petitioners, were filed with the collector of internal revenue for the twenty-third district of Pennsylvania, at Pittsburgh.
Petitioner Columbia Holding Corporation, sometimes hereinafter referred to as Columbia, was organized under the laws of the Commonwealth of Pennsylvania on November 24, 1937. It was created in accordance with a plan of reorganization dated August 17, 1937, which was confirmed by an order of the District Court of the United States for the Western District of Pennsylvania on October 15, 1937. Columbia was formed for the purpose of taking over and operating an apartment building known as Center Court Apartments, located on Center Avenue in Pittsburgh. Its principal office was located in Pittsburgh. During 1944 the directors of the corporation were Minnie Hyman, Helen Frishman, and Yetta Elinoff, and the officers were Samuel Hyman, president, and Rose Kaufmann, secretary. Samuel and Minnie Hyman are husband and wife, and Helen, Yetta, and Rose are their daughters.
In 1944 the outstanding stock of Columbia, in the amount of $5,000. was owned as follows:
+----------------------------+ ¦Rose Kaufmann ¦1,250 shares¦ +---------------+------------¦ ¦Yetta Elinoff ¦1,250 shares¦ +---------------+------------¦ ¦Helen Frishman ¦1,250 shares¦ +---------------+------------¦ ¦Minnie Hyman ¦1,250 shares¦ +----------------------------+
This stock was acquired by the above named persons as a gift from Samuel Hyman.
Article 3 of the certificate of incorporation of Columbia provides as follows:
The purpose or purposes of the corporation are: to acquire by purchase, own, hold, deal in, mortgage, operate, manage, lease, sell, exchange transfer, or in any manner whatever to dispose of certain real property known as CENTER COURT APARTMENTS, located in the City of Pittsburgh, at Number 4716-4726 Center Avenue, and to do and perform all things necessary or incidental to or connected with or growing out of the aforesaid purposes.
In the plan of reorganization approved by the District Court certain prohibitions were placed upon the corporation. These prohibitions are contained in article 5 of the articles of incorporation as follows:
5th. The authorized capital stock of the corporation is Five Thousand ($5,000.00) Dollars, divided into Five Thousand (5,000) shares of common stock, each share having a par value of One ($1.00) Dollar, in accordance with a Plan of Reorganization, dated August 17, 1937, in the matter of CENTER COURT APARTMENTS, INC., Debtor, in Bankruptcy No. 19640, in the District Court of the United States for the Western District of Pennsylvania, which said Plan has been finally confirmed by the Order of said Court, dated October 15, 1937, in accordance with the provisions of Section 77B of the Bankruptcy Act.
Pursuant to Plan of reorganization, the provisions of the present mortgage as amended by the terms thereof, shall be assumed by the corporation; and so long as any of the New Bonds, as therein authorized, shall remain outstanding, the corporation:
(A) Will not purchase or otherwise retire any of its Capital Stock or reduce the amount of capital allocated to such Capital Stock;
(B) Will not borrow any monies except in the ordinary courses of its business, or guarantee any obligations of others;
(C) Will not directly or indirectly engaged in any business other than that incidental to the ownership or operation of the mortgaged property; * * *
In section 7 of the supplemental mortgage indenture assumed by the corporation pursuant to the plan of reorganization it is stated:
So long as any of the Bonds are outstanding, the corporation will not consolidate or merge with any other corporation and will not sell, lease, transfer, mortgage or convey its properties as a whole or substantially as a whole except after compliance with the provisions of the Amended Mortgage.
In section 12 of that instrument the following is stated:
* * * So long as any of the bOnds are outstanding the Corporation (A) will not purchase or otherwise retire any of its capital stock or reduce the amount of capital allocated to such capital stock; (B) will not borrow any moneys except in the ordinary course of its business or guarantee any obligations of any person, firm or corporation; and (C) will not, directly or indirectly, engage in any business other than that arising out of the ownership of the property acquired by it pursuant to the Plan and such other business as may be incidental thereto.
From the time of its organization in 1937 Columbia operated the Center Court Apartments in accordance with the plan of reorganization above mentioned. In the latter part of December 1943 Ben H. Harvey, on behalf of Louben, Inc., approached Samuel Hyman and discussed with him the possibility of purchasing the Center Court Apartments. Negotiations between Samuel Hyman and Louben, Inc., continued until January 22, 1944, when an agreement between the stockholders of Columbia and Louben, Inc., to sell the apartment property was executed. Samuel Hyman was the motivating power behind the negotiations and signed the contract on behalf of the respective stockholders. This contract provided that the sellers (the stockholders) agreed that they would cause the outstanding mortgage bonds to be paid a d the trust indenture to be satisfied. The contract stated that Louben, Inc., was willing to assist the sellers in obtaining a new mortgage in order that the bonds could be paid. The agreement provided:
Within a period of sixty (60) days from the date hereof, the Buyer shall have the exclusive right and agrees to use its best efforts to obtain a new mortgage on the said apartment property of the corporation in a minimum amount of $150,000.00 providing for a minimum fifteen (15) year amortization and with a maximum rate of interest of 4 1/2% per annum, and should the Buyer be successful in obtaining a commitment from responsible party or parties for such a mortgage, the Sellers agree that they will cause the corporation to accept the same, and the Buyer agrees to pay for all of the usual costs of the placing of said mortgage, but said costs shall not include any bonus or brokerage fee. Further, the Sellers covenant and agree that they will cause such steps to be taken so as to cause the outstanding mortgage bonds to be paid and the trust indenture to be satisfied, and further, to cause the corporation to execute such bonds, mortgages, contracts, and agreements as may be necessary or required to terminate the presently outstanding bond and mortgage liability and to create the new mortgage a first lien on the property of the corporation.
The sellers further agreed that upon the payment of the outstanding bonds of the corporation and the satisfaction of the trust indenture:
* * * they will then cause the corporation to transfer to themselves, in total or partial liquidation of the corporation, the apartment property of the said corporation, which said apartment property, together with all its physical assets, * * * they covenant and agree to sell to the Buyer (Louben, Inc.). and the Buyer covenants and agrees to purchase the same for a total consideration of $108,500, less such amount as shall represent the difference between the face amount of the new mortgage to be obtained as aforesaid and the amount required to pay the outstanding mortgage bonds of the corporation.
This agreement also provided that the sellers ‘hereby appoint SAMUEL HYMAN, of the City of Pittsburgh, * * * as their agent to accept all payments to be made by the Buyer hereunder for and in their behalf * * * .‘
During the above negotiations and during subsequent transactions with Louben, Inc., Samuel Hyman was president of, and as such was authorized to institute negotiations for, petitioner. He was also authorized to act for his wife and daughters.
On January 22, 1944, an escrow agreement was executed between the stockholders of Columbia and Louben, Inc., whereby two escrow agents were appointed to receive and hold in escrow the respective sums of $2,000 and $23,000 paid by Louben, Inc., and which provided that if the terms were not met by Louben the sum of $25,000 was to be paid to the sellers as liquidated damages.
At the time the agreement to sell was executed there were bonds in the amount of $120,000 outstanding which had been issued by Columbia in 1937. Louben, Inc., was not successful in negotiating for a new mortgage. Sometime during the early part of March the board of directors of Columbia resolved that the individuals should loan to it funds with which to redeem the outstanding bonds. Such loan was to be repaid when Columbia transferred its apartment property to the stockholders. Negotiations were then begun through Samuel Hyman to borrow sufficient funds for the purpose of liquidating the bonds. On March 28, 1944, the stockholders of Columbia, acting through a partnership known as the West Penn Realty Co., borrowed $120,000 from the William Penn Trust Co., a Pittsburgh bank. These stockholders then loaned the $120,000 to Columbia for the purpose of satisfying the outstanding bonds. Columbia liquidated its outstanding bonds on March 28, 1944.
On March 31, 1944, there was a special meeting of the board of directors of Columbia for the purpose of liquidating the assets of the corporation to the four stockholders of record. At this meeting it was unanimously agreed:
* * * that Columbia Holding Corporation by way of distribution in complete liquidation and in complete cancellation or redemption of all the shares of the company's capital stock, transfer, set over and deliver unto Minnie Hyman, Rose Kaufmann, Helen Frishmen and Yetta Elinoff all of the assets of whatever kind and nature, including real estate, accounts receivable and all existing leases and contracts, as well as any and all moneys due or to become due to the corporation under and by virtue of the terms of a certain supplemental indenture dated as of October 1, 1937 between Columbia Holding Corporation and Commonwealth Trust Company of Pittsburgh, as Trustee, subject to all obligations and liabilities of Columbia Holding Corporation * * * .
It was further unanimously resolved that upon the transfer of its assets Columbia would cease active operations and discontinue doing business. In addition it was resolved that there should be a meeting of the stockholders on March 31, 1944, for the purpose of approving the action taken by the board of directors. At the stockholders' meeting, as above provided for, Samuel Hyman, as president of Columbia, presided. He also acted as attorney in fact for Rose Kaufmann, who was absent from the city. The minutes of that meeting contained the following:
The President stated that on March 1, 1944 we had caused notice to be given to the Commonwealth Trust Company as Trustee under the Supplemental Indenture dated as of October 1, 1937 between Columbia Holding Corporation and Commonwealth Trust Company of Pittsburgh as Trustee, to give the notice as required in said Indenture that all outstanding bonds would be paid April 1, 1944. The President stated that the Trustee, in compliance with such notice, had caused the necessary notices to be sent to the Bondholders. The President further advised that on March 28, 1944 a certified check of the West Penn Realty Company in the sum of One Hundred Twenty Thousand ($120,000) Dollars was given to the Commonwealth Trust Company, as Trustee, which said amount was to be employed for the purpose of paying off the outstanding bonds and which amount was loaned by West Penn Realty Company to the corporation. The President further stated that arrangements had been made for the satisfying of record of the said trust mortgage and that he had been advised by counsel that said mortgage had been satisfied of record this very morning.
On motion duly made, seconded and unanimously carried, the action of the President in causing the aforesaid Notice to be given, borrowing the sum of One Hundred Twenty Thousand ($120,000) Dollars for and on behalf of the corporation from the West Penn Realty Company, and causing the said trustee mortgage to be satisfied through the proceeds of said loan was duly ratified and approved.
The stockholders passed identical resolutions to those passed at the board of directors' meeting.
On March 31, 1944, the stockholders turned in their stock to Columbia. On that same day, in consideration for the cancellation of the shares of stock and the loan of $120,000 made by the stockholders, Columbia transferred its property to them. The deed of transfer was recorded on that date in the office of the Recorder of Deeds of Allegheny County.
On April 1, 1944, the stockholders conveyed the property formerly held by Columbia to Louben, Inc.
Upon the consummation of the transactions, the individuals used part of the money received by them to repay the bank loan of $120,000.
A firm of attorneys was retained in connection with drafting the contract to sell the Center Court Apartments to Louben, Inc. Their charge for this was $1,500. Columbia's return for 1944 showed a deduction in the amount of $1,500 for ‘legal expenses.‘
In his explanation of adjustments contained in the statement attached to the notice of deficiency sent to petitioner Columbia, respondent:
* * * determined that you realized a profit of $73,096.25 in the period from January 1 to March 31, 1944, on the sale of the Center Court Apartments, which was not included in your return for that period; accordingly, your gross income has been increased by $73,096.25.
The executed sale of the Center Court Apartments was in substance the sale of petitioner.
OPINION.
OPPER, Judge:
That this proceeding comes within the purview, and is governed by the principle, of Commissioner v. Court Holding Co., 324 U.S. 331, seems to us demonstrated by Fairfield Steamship Corporation, 5 T.C. 566. Not only the prevailing opinion, but that of the dissent, makes this clear.
The rationale of that case was that ‘the sale effected was in substance that which had been arranged while (petitioner) * * * held title‘ to the property (page 573). The record here shows that Hyman, who carried on all negotiations for the seller,
was president of the corporation; he was not a stockholder. He was negotiating for the sale of property of which the corporation, not the stockholders, was the owner. Whatever their final outcome, all of the negotiations were carried on, right down to the formulation and execution of the escrow agreement, while the corporate petitioner continued to hold title to the property. Petitioners do not, in fact, deny this, but insist in their brief merely that ‘the stockholders had legally obligated themselves to convey title to this property when they acquired the same in the future * * * . In our case * * * there were no negotiations for the sale of the property by the corporation with the final vendees whatsoever.‘
Decisions will be entered for the respondent. Proceedings of the following petitioners are consolidated herewith: Minnie Hyman; Helen Frishman; Yetta Elinoff; and Columbia Holding Corporation.
It does not assist the petitioner in the decision of doubtful issues of fact that he was not produced as a witness and that his absence was unexplained. See Wichita Terminal Elevator Co., 6 T.C . 1158; affd. (C.C.A., 10th Cir.), 162 Fed.(2d) 513.
Even under the theory of the dissenting judges, these are stronger facts for respondent than those in the Fairfield case. There the dissent points out that before any negotiations were started, ‘The evidence is clear that the parties had decided to transfer the assets of (the corporation) * * *including ‘ the property in question, ‘to Atlantic (the stockholder) in exchange for all of‘ the corporation's outstanding stock. ‘ * * * it was only on September 19, after the transfer * * * that Lewis, as president of Atlantic (the stockholder), was authorized to conclude a contract * * * .‘
Here, the facts show, and are so construed by petitioners, that no steps whatsoever were taken toward liquidation until the deal for sale of the property had been conclusively agreed to. As the court said in Trippett v. Commissioner (C.C.A., 5th Cir.), 118 Fed.(2d) 764, affirming 41 B.T.A. 1254, Trippett and Meadows, the two sole stockholders there, ‘had no right to deal with the corporate property as their own. Texota Corporation had not been dissolved or liquidated and they could only act as its agents.‘
George T. Williams, 3 T.C. 1002, and Acampo Winery & Distilleries, Inc., 7 T.C. 629, may be thus distinguished. Perhaps the view of the Fifth Circuit in Howell Turpentine Co. v. Commissioner, 162 Fed.(2d) 319, reversing 6 T.C. 364, was that the facts there were likewise reconcilable.
We have found as a fact that petitioner's president had authority to institute negotiations for the sale of the corporate property. There being no evidence to the contrary, we have no basis for departing from ‘the presumption as to the authority of the president of a corporation‘ that he ‘represented the corporation, and prima facie he had power to do any act which the directors could authorize or ratify. ‘ Hardin v. Morgan Lithograph Co. (N.Y.), 247 N.Y. 332; 160 N.E. 388. Even though an ultimately articulated contract of sale could not be executed by the president without, or probably even with, the authority of the directors alone, it is inconceivable that the negotiation of such a contract should be outside of the authority of the president. See 2 Fletcher, Cyclopedia Corporations, p. 462. ‘ * * * some corporations can only be reached through their agents * * * In no other way can knowledge be conveyed to the fictitious entity or negotiations be had with it. It is not usual for parties dealing with a corporation to be brought before the directors to negotiate their contracts.‘ Balfour v. Fresno Canal Co., 123 Cal. 395; 55 Pac. 1062, for the sale of corporate property could ever be arrived at for submission to the stockholders, and without that, of course, the functioning of a corporation and the transaction of its business would be fatally restricted.
If not, we are, for the sake of uniformity, respectfully constrained to follow the contrary conclusions reached by us in the Howell and Fairfield cases.
The opinion refers to ‘The contract of sale * * * reciting the impending liquidation, which had in fact been formally ordered before the contract was signed.‘
The affirmance of the Fairfield case (C.C.A., 2d Cir.), 157 Fed.(2d) 321; certiorari denied, 329 U.S. 774, was, it is true, not placed upon the same grounds as those employed below. Regardless, however, of the reasons given, the cases are, in our view, identical, unless, as we have suggested, the present facts are more favorable to respondent.
There remains for consideration the point, insistently urged by petitioners, that the corporate petitioner was effectively disabled from making any sale of its property, and hence that the stockholders, and not the corporation, must have done so. Rejection of the proposition is required by the facts themselves. The corporation was no more bound not to sell than it was not to distribute its assets. Neither was a categorical prohibition; both depended upon paying off the corporation's bonds. This was actually done, in the ultimate outcome, out of the proceeds of the sale and new mortgage, which were obviously greatly in excess of what was needed to liquidate the bonds in cash.
It was actually testified by petitioner's secretary that ‘the corporation (petitioner) repaid us (the stockholders) by giving the individuals the title. The $120,000.00 was part of the consideration of the corporation giving the individuals title.‘ On that theory, a sale by the corporation— and a capital gain— must have taken place irrespective of the second transfer of title. See Fairfield Steamship Corporation v. Commissioner, supra.
A contract to sell the property upon the simultaneous discharge of the bond indenture is nowhere shown to have been impossible, nor indeed, even difficult. We may take notice that such transactions are of common occurrence. And a contract with two prior conditions instead of one— release of the old mortgage and liquidation of the corporation— was in fact found to be entirely feasible. If it was lawful for the stockholders to contract to sell property which was not only covered by a mortgage and a court decree, but which they did not own, it must have been at least as lawful for the corporation which owned it to do the same.
There are no disputed evidentiary facts in the case. All of the witnesses who testified can be implicitly believed, and the ultimate fact remains, in our judgment, that the actual transaction started out and ended up by being a sale of the corporation's property negotiated through its chief officer, consented to, as it had to be, by its stockholders, and cast in a more complicated and indirect form from motives concerning which we find it unnecessary to speculate. The resulting gain was that of the corporate petitioner, and the tax must be determined accordingly.
Reviewed by the Court.
KERN, J., concurring: A rule of law might be inferred from the majority opinion to the effect that if any negotiations for the purchase of a corporation's property are begun while the corporation holds title to the property, then any sale of the property later made by the stockholders after the corporation's liquidation to a purchaser who had participated in such negotiations in any way and to any extent, must be considered the sale of the corporation under the doctrine of Commissioner v. Court Holding Co., 324 U.S. 331.
Because of my doubt that such a rule of law is correct, and my view that, under the facts found, the decision reached by the majority is correct without resort to it, I am stating the grounds for my concurrence in this opinion.
The Court Holding Co. case was one of a series of cases decided by the Supreme Court which emphasized the importance of the ‘substance of a transaction,‘ which should not ‘be disguised by mere formalities.‘ In that case the Court held that ‘a sale by one person, can not be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title.‘ This rule is applicable to those cases in which there have been negotiations between the corporation and the prospective purchaser of the corporate property resulting in a substantial agreement between the corporation and the purchaser as to the sale of the property. If such a substantial agreement has been reached as a result of negotiations between the prospective purchaser and the officers of the corporation, then the later use of the stockholders of the corporation (by liquidation of the corporation) as ‘a conduit through which to pass title‘ will not change what is, in substance, a sale by the corporation to a sale by the stockholders. See Fairfield Steamship Corporation v. Commissioner, 157 Fed.(2d) 321, 322.
In the instant case, taking the facts as found, I am of the opinion that the negotiations between Louben, Inc., and the president of petitioner resulted in a substantial agreement for the sale of the property of the corporation, and the later agreement of the stockholders of petitioner was intended to give effect to the prior agreement of the corporation.
Samuel Hyman was president of petitioner corporation. As such, he was an agent for petitioner and was under obligation to act for the best interests of his corporation. With regard to any proposal to buy the property of the corporation, it is to be at least presumed that he would represent the corporation in conformity with that obligation in any negotiations instituted by Louben, Inc. It is certainly not to be presumed that his actions on behalf of his wife and daughter would affect his fiduciary obligation to the corporation. In any event, petitioner, although having the burden of proof, did not attempt to prove by the witness who was best qualified to testify on this point (Hyman, himself), that Hyman did not represent petitioner in the preliminary negotiations with Louben, Inc.
I would construe the facts found as follows: Hyman, as president of petitioner corporation, negotiated with Louben, Inc., with regard to the sale of the corporation's property on behalf of the corporation. When a substantial agreement had been reached as a result of these negotiations, Hyman then negotiated the method of carrying out the sale, and the method followed was the purported sale by the stockholders after liquidation of the corporation.
Under this construction of the facts, the rule of the Court Holding Co. case would be clearly applicable.
LEECH and ARNOLD, JJ., agree with the above.
HILL, J., dissenting: The deficiency herein is based on the respondent's determination that petitioner realized unreported gain on the sale by petitioner of the apartment house property to Louben, Inc. If such sale was made by petitioner, unreported gain thereon was realized as determined by respondent. The sole issue presented is whether petitioner made the sale in question or whether it was made by the individuals who were the stockholders of petitioner. Respondent contends that petitioner made the sale. Petitioner contends contra. Most of the facts warranted by the evidence and some that are not are set forth in the majority report. I will point out and discuss below what I deem to be erroneous findings of fact in the majority report.
In support of the conclusion reached by the majority that petitioner made the sale in question, reliance is placed principally upon the holding in Commissioner v. Court Holding Co., 324 U.S. 331, affirming 2 T.C. 531, and Fairfield Steamship Corporation, 5 T.C. 566. The Fairfield case was affirmed (CCA-2), 157 Fed.(2d) 321, but reference thereto is made in the majority report only in an incidental way. It is apparent that the reason for the slight attention paid to the Circuit Court's opinion rests in the fact that the Circuit Court affirmatively rejected as untenable the ground (here relied upon by the majority) on which this Court based its holding and affirmed this Court's decision on a ground which is not present under the facts in the instant case.
Unquestionably, all the evidence in the instant case supports the fact that the sale here in question was intended to be made, and was made, not by petitioner, but by the individuals who were the stockholders of petitioner. Moreover, the evidence in the instant case conclusively establishes that there was a complete liquidation of petitioner before the sale in question to Louben, Inc., was effected.
A similar state of facts was established in the Fairfield case, except in that case the Circuit Court held that there was not a liquidation. The Circuit Court, in its opinion in the Fairfield case, said:
A majority of the Tax Court thought, because the negotiations had been concluded by a satisfactory offer before the Fairfield Company transferred the ship, that the sale was to be imputed to that company. They did not hold, and indeed they could not properly have held, that as matter of fact the shareholders of the Atlantic Company ever meant the Fairfield Company to sell the ship; on the contrary the shareholders had most carefully provided the contrary. Thus, so far as the transaction depended upon the actual intent of the only parties who could have any intent, it is impossible to find support in the record for a finding that the Fairfield Company made the sale; and if that was the legal result of what they did, it was imposed upon the transaction in spite of their intent. The case is further complicated by the fact that the majority relied for their decision upon an interpretation of Commissioner v. Court Holding Co., 324 U.S. 331, to which we cannot agree. On the contrary we think that the minority were right in believing that that case turned upon the fact that all the preliminary negotiations had been made expressly with the corporation; and that it was only after the bargain had been struck, that the service of a liquidation was brought in as deus ex machina. The contrary was true here.
The Circuit Court's statement above quoted carries its own proof of correctness and slips from under the majority opinion in the instant case the ground upon which the conclusion therein is based.
The Court Holding Co. case is not comparable in its facts either to the instant case or the Fairfield case. The Court Holding Co. owned as its sole asset an apartment house. Negotiation between it and its lessees of the property for sale to the lessees was entered into and the terms of sale were agreed upon. A certain amount of the purchase price was paid to the corporation. To avoid heavy taxes the property in question was transferred in the form of a liquidating dividend to the corporation's stockholders, who in turn completed the sale by conveying the property to the vendees on substantially the same terms agreed upon between the latter and the corporation. Also, in that transaction credit of the purchase price for the amount paid the corporation was given.
It is apparent, therefore, that the Court Holding Co. case can not properly be deemed authority for the holding of the majority in the instant case.
The evidence and the facts found by the majority show conclusively that on March 31, 1944, the stockholders surrendered for cancellation all of the outstanding shares of petitioner's stock and on that day received as a liquidating dividend all of petitioner's assets, including the apartment house property. This constituted a complete liquidation of petitioner and effected its dissolution. Fairfield Steamship Corporation (CCA), supra. The Circuit Court affirmed this Court in the Fairfield case on the ground that there had not been a liquidation of the Fairfield Steamship Corporation and hence no dissolution thereof at the time of the sale of the property there involved. Hence, the ground upon which the Circuit Court affirmed this Court in the Fairfield case does not exist in the instant case. It follows that on the basis of the facts here the Circuit Court's opinion is in direct opposition to the holding of the majority in the instant case.
The fact that petitioner's stockholders did not have title to the apartment house property during the negotiations for its sale by them was no legal deterrent to such negotiations and contract of sale. The stockholders were in control of petitioner. They knew that they could cause petitioner to carry out the liquidation plan whereby they would acquire title to the property through a liquidation distribution. They knew by reason of such circumstances that they would be in a position to effect a sale of the property in accordance with their contract so to do. In Howell Turpentine Co. v. Commissioner (CCA-5), 162 Fed.(2d) 319, the Circuit Court said:
But he may validly contract to sell it before any steps are taken towards liquidation, if he has a reasonable prospect of obtaining title to it within the time fixed by the contract for the conveyance. This is true of stockholders as it is of people in general who have a prospect of obtaining title and are willing to assume a personal liability if they should fail. ‘It is not unusual for persons to agree to convey by a certain time notwithstanding they have no title to the land at the time of the contract, and the validity of such agreements is upheld. In such cases the vendor assumes the risk of acquiring the title and making the conveyance, or responding in damages for the vendee's loss of his bargain. * * * Whenever one is so situated with reference to a tract of land that he can acquire the title thereto, either by the voluntary act of the parties holding the title, or by proceedings at law or in equity, he is in position to make a valid agreement for the sale thereof, without disclosing the nature of his title.‘
It may be appropriately noted at this point that the majority opinion goes contra to the Circuit Court's holding in the Howell Turpentine case, which case I here cite as authority in support of my individual views herein expressed.
The majority report recites as one of its findings of fact that:
A firm of attorneys was retained in connection with drafting the contract to sell the Center Court Apartments to Louben, Inc. Their charge for this was $1,500. Columbia's return for 1944 showed a deduction in the amount of $1,500 for ‘legal expenses.‘
It is obviously intended from this finding to convey the meaning that petitioner paid for attorneys' services in connection with the transaction of sale of the apartment house property to Louben, Inc. The evidence is positive and uncontradicted that the $1,500 for legal expenses referred to in the quoted finding of fact had no connection with the apartment house sale transaction. The uncontradicted evidence is that $1,500 for legal services was paid by the West Penn Realty Co., a partnership composed of petitioner's stockholders, and was paid for and on their behalf.
Among the findings of fact in the majority report is the following:
During the above negotiations and during subsequent transactions with Louben, Inc., Samuel Hyman was president of, and as such was authorized to negotiate for, petitioner. He was also authorized to act for his wife and daughters.
I respectfully submit that there is no evidence in the record to support the statement in such finding that Samuel Hyman was authorized to negotiate the sale in question for petitioner. The uncontradicted evidence on this point is to the effect that Hyman was authorized to negotiate the sale for the stockholders of petitioner, and that the negotiations and sale were accordingly made. Samuel Hyman was neither a stockholder nor a director of petitioner. To authorize him to negotiate the sale for petitioner, action therefor by the board of directors, ratified by the stockholders, would have been necessary. No such action either by the board of directors or by the stockholders is in evidence or was had. Certainly, Hyman had no such authority merely by virtue of the fact that he was president of petitioner.
Finally, the majority makes the following finding of fact as the capstone of its fact edifice herein: ‘The executed sale of the Center Court Apartments was in substance the sale of petitioner.‘ This alleged finding is a mere conclusion, but whether it is one of fact or of law appears debatable. If it is a finding of fact, it is without basis in the evidence, and, lacking such basis, it is incorrect as a conclusion of law. Therefore, in the light of the evidence it is unwarranted either as a conclusion of fact or of law. It is a conclusion which in effect holds that, since petitioner, if it had so chosen, might have sold the property to Louben, Inc., it will be held to have done so even though the evidence is positive and uncontradicted that petitioner never intended to make the sale, conducted no negotiations for the sale, made no conveyance of the property to Louben, Inc., received none of the purchase price therefor and, in short, did not in fact make the sale. In other words, such conclusion of the majority is based solely on speculative potentialities which had no factual fruition. Imaginary concepts based on mere potentialities may be formulated in many entertaining ways, but never properly as the basis of judicial inference.
For the reasons above indicated, I respectfully dissent.
ARUNDELL, VAN FOSSAN, MURDOCK, BLACK, and TYSON, JJ., agree with dissent.