Opinion
Docket No. 2798-74.
1975-12-24
S. REX LEWIS AND JOAN T. LEWIS, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Jackson B. Howard, appearing specially for the petitioners.
To finance the development of a piece of real property, HLI and its corporate associate obtained a $900,000 construction loan on Dec. 28, 1970. On that date HLI paid a nonrefundable loan fee of $36,000, and $44,000 to be applied against interest to accrue on the loan in 1971. Held, on its 1970 return, HLI was entitled to deduct the $36,000 loan fee in full, and to deduct the interest prepaid with respect to 1971 to the extent of a penalty which would have been incurred had the borrowers prepaid the principal of the construction loan in full prior to 1971. Secs. 163 and 446(b), I.R.C. 1954. Jackson B. Howard, appearing specially for the petitioners.
, Judge:
Respondent determined a deficiency of $13,267.50 in the Federal income tax of petitioners for 1970. We are to decide if respondent properly disallowed an interest expense deduction claimed on the return filed for the year in issue by a partnership of which S. Rex Lewis was a member.
FINDINGS OF FACT
Certain facts have been stipulated and are so found.
Petitioners S. Rex and Joan T. Lewis are husband and wife. They filed a joint Federal income tax return for the year in issue with the Director of the Western Region, Internal Revenue Service Center, Ogden, Utah. They were residents of Provo, Utah, when they filed their petition with this Court.
Petitioners reported income and expenditures according to the cash receipts and disbursements method of accounting.
Hereafter S. Rex Lewis alone shall be referred to as petitioner.
At all times relevant, petitioner and Jackson B. Howard engaged in the practice of law as partners in Provo.
They also had equal interests in a partnership styled ‘Howard and Lewis Investments' (HLI) which they organized to invest in real property.
HLI reported income and expenditures according to the cash receipts and disbursements method of accounting.
Certain of HLI's holdings were considered suitable as sites for automobile service stations by Texaco, Inc., and early in 1970 Texaco offered to purchase these holdings (hereafter referred to as the Orem property). While Texaco was expressing an interest in the Orem property, petitioner and Howard were looking to acquire some real property in the south of California. They therefore suggested to Texaco that in lieu of a sale, an exchange of the Orem property for some realty in the environs of Los Angeles be arranged.
In September 1970 Howard was contacted by a representative of Martin V. Smith, an acquaintance of his and the owner of Anchorage Development Co., Inc. Smith planned that Anchorage should build and operate a 118-unit apartment complex on a piece of land which it owned in Ventura County, Calif. (hereafter referred to as the Ventura property). Smith, however, lacked the funds necessary to inaugurate such a project. He therefore proposed that petitioner and Howard participate in the venture, their combined interests to be equal to that of Anchorage.
Pursuant to Smith's proposal, it was agreed that Texaco would purchase an undivided one-half interest in the Ventura property and then exchange that interest for the Orem property.
The purchase and exchange having been effected, Anchorage and HLI applied to the Trans-Coast Savings & Loan Association of Oxnard (California) for a loan of $900,000 to finance the construction of the apartment complex on the Ventura property.
On December 28, 1970, a loan agreement was concluded under the terms of which the borrowers obligated themselves to commence construction of the apartment complex by the middle of March 1971.
To finance the project the lenders
Work in fact commenced in January 1971.
agreed to place $900,000 in a special non-interest-bearing account at Trans-Coast. The funds in the account were to be disbursed in installments from time to time to pay for work done or materials furnished in the construction of the complex.
The lenders were Trans-Coast and the Santa Maria Savings & Loan Association.
No amounts were disbursed until after Dec. 31, 1970.
The note signed on December 28, 1970, pursuant to the loan agreement provided that interest be payable at the rate of 9 percent per annum. Through June 15, 1971, interest was to be payable only on the amounts that had actually been disbursed. Thereafter it was to be payable on the full amount of the loan. In all, $48,228.75 in interest became payable under the note in 1971. Beginning on January 15, 1972, principal and interest were to be payable in monthly installments of $7,553 until principal and interest were paid in full.
The note reserved to the borrowers the right to make prepayments on any installments to become due. However, in the event that the aggregate amount of such prepayments in any successive 12-month, including the regular monthly installment payments, equaled or exceeded 20 percent of the principal, the lenders would be entitled to demand an amount equal to 180 days' interest on the original principal, this amount to constitute consideration for the acceptance of the prepayment and to compensate the lenders for their expenses.
In negotiating with Smith, petitioner and Howard agreed that HLI would bear the expense of the first $80,000 of interest to accrue on the construction loan. To discharge this obligation, petitioner and Howard each borrowed $40,000 from the Commercial & Farmers National Bank of Oxnard. Of the proceeds of each of these loans, $18,000 was applied toward the payment of four ‘points,‘ in this instance equaling $36,000, which the lenders insisted the borrowers pay as a prerequisite to obtaining the construction loan. The $36,000 was paid on December 28, 1970, when the loan agreement was concluded. On the same day the balance of each loan obtained from Commercial was used to make a voluntary prepayment of interest in the amount of $44,000, which was to become payable on the construction loan in 1971.
Construction of the apartment complex was managed by Anchorage which was compensated for this service with 4 percent of the gross rentals derived from the project.
On the U.S. partnership returns filed for 1968 and 1969, HLI reported losses of $7,085.63 and $1,974.17, respectively. Petitioner's distributive shares of those losses were $3,542.82 and $987.09, respectively.
On joint returns filed for 1968 and 1969 petitioner reported taxable income of $22,123.16 and $39,589.04, respectively.
On the return which it filed for 1970, HLI claimed a deduction of $80,000 for the $36,000 loan fee and the $44,000 of interest paid by petitioner and Howard on December 28, 1970; and HLI reported a loss of $81,549.95, of which petitioner's distributive share was $40,774.97.
On the joint return filed for 1970, petitioner reported taxable income of $2,710.85.
OPINION
The parties to this litigation are agreed that the $36,000 loan fee (points) is interest within the meaning of section 163(a), I.R.C. 1954.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code of 1954, as amended.
Under section 163(a),
a taxpayer reporting income and expenditures in accordance with the cash receipts and disbursements method of accounting is ordinarily entitled to deduct an interest payment in the year in which it is made. Lewis C. Christensen, 40 T.C. 563, 577-578 (1963). Unquestionably the fee was a payment of interest made in 1970; because once the $36,000 had been transferred on December 28, 1970, it was not refundable in any event. John Ernst, 32 T.C. 181 (1959). Respondent contends that nevertheless the fee ought not to have been deducted in 1970 but rather amortized over the term of the loan.
SEC. 163. INTEREST.(a) GENERAL RULE.— There shall be allowed as a deduction all interest paid or accrued within the taxable year on indebtedness.
In support of his contention respondent cites Anover Realty Corp., 33 T.C. 671 (1960). That decision indicates that costs incurred in procuring a loan must be amortized over its term. See 33 T.C. at 674-675. Interest paid in the form of a loan fee was not, however, at issue in that controversy, and there is more recent authority to the effect that such an item need not necessarily be amortized. See James V. Cole, 64 T.C. 1091, 1106 n. 10 (1975).
Although Anover is not applicable in this instance, the result for which respondent contends is not necessarily precluded for that reason. For a taxpayer on the cash method of accounting is ordinarily entitled to deduct interest when it is paid; but he may not do so where to deduct such an item will result in a material distortion of his income. Andrew A. Sandor, 62 T.C. 469, 477-478 (1974), on appeal (9th Cirs., Sept. 30, 1974). In such a case respondent is empowered by section 446(b)
to require that the interest expense item be accounted for in some other way in order that the income of the taxpayer be clearly reflected in annual reporting for Federal income tax purposes. G. Douglas Burck, 63 T.C. 556 (1975), on appeal (2d Cir., July 28, 1975).
SEC. 446. GENERAL RULE FOR METHODS OF ACCOUNTING.(b) EXCEPTIONS.— If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.
Existing authority does not define precisely what constitutes a material distortion of income, but such a distortion is likely to be found when the amount of an interest expense item is substantially in excess of what might normally be expected in an arm's-length transaction structured without special regard to tax consequences. See James V. Cole, supra at 1104 n. 5.
In this instance the lenders insisted that as a precondition to their making a loan of $900,000, the borrowers pay $36,000 of interest in the form of a fee. Lending institutions dealing with their customers at arm's length often require that as a prerequisite to obtaining a loan their customers pay in the form of such a fee, a certain amount of interest over and above that stated in the note. We therefore hold that to deduct the $36,000 loan fee in the year of payment did not result in a material distortion of income.
The second item in issue is the $44,000 of prepaid interest.
On December 28, 1970, petitioner and Howard each paid $22,000 of their own volition, to be applied against interest to accrue on the construction loan in 1971.
We have first to decide if the $44,000 did indeed represent interest paid in 1970 for purposes of section 163(a). See Andrew A. Sandor, supra at 482. Basic to the resolution of that issue is whether the $44,000 might have been refunded under any circumstances in 1970. In this connection we note that the borrowers were entitled to prepay the principal of the construction loan. To have done so would have terminated the accrual of interest. However, had the borrowers availed themselves of this privilege prior to 1971, the entire $44,000 of interest prepaid for that year would not thereupon have been refunded. For the borrowers would thereby have rendered themselves liable for a prepayment penalty equal to 180 days' interest on the original principal of the loan, computed at an annual rate of 9 percent. Such a penalty is interest within the meaning of section 163(a). General American Life Insurance Co., 25 T.C. 1265 (1956). We therefore hold that to the extent of the penalty, the $44,000 was a payment of interest made in 1970. John Ernst, supra. To the extent the $44,000 exceeded the prepayment penalty, it would clearly have been refunded in 1970, had the loan been prepaid during that year. For this reason the portion of the $44,000 which exceeded the penalty was not a payment of interest but a deposit and therefore not deductible in 1970. R. D. Cravens, 30 T.C. 903 (1958).
In making this holding we are not unmindful that Cravens was reversed by the United States Court of Appeals for the Tenth Circuit in Cravens v. Commissioner, 272 F.2d 895 (1959), a decision binding upon us in this instance,
See Asimow, ‘Principle and Prepaid Interest,‘ 16 U.C.L.A. L. Rev. 36, 69 n. 158 (1968).
but in our opinion the decision of the Tenth Circuit to reverse our holding was prompted by considerations irrelevant to the case now before us.
See Jack E. Golsen 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), cert. denied 404 U.S. 940 (1971).
In Cravens the taxpayer owned and operated a ranch on which he raised livestock. In December 1953 he considered selling his herd because drought conditions made it difficult to obtain feed. He decided that he would keep the herd, however, if he could be assured of obtaining feed in the forthcoming year.
Because of the shortage the taxpayer could not induce his supplier to agree to sell him specific quantities of feed at a specific price, but because he agreed to pay $50,000 in advance, the supplier did agree to give Cravens preferential treatment over his other customers. The $50,000, paid late in December 1953, was to be applied against the price of feed eventually purchased and, to the extent it was not so applied, to be refunded. Because the $50,000 was refundable, it was held by this Court that the $50,000 was not paid in 1953, but only -deposited. The Court of Appeals reversed our decision because by paying the $50,000 in advance, the taxpayer secured a promise of preferential treatment from his supplier. In the case now before us, no advantages were secured by prepaying $44,000 of interest. The decision of the Court of Appeals in Cravens v. Commissioner is therefore inapposite.
We have held that to the extent of the penalty for the prepayment of principal, the $44,000 represented interest paid in 1970. Therefore to the extent of the penalty, the item would ordinarily be deductible in 1970. That amount, however, was meant to be applied against interest to accrue in 1971. For this reason respondent contends that its being deducted in 1970 would result in a material distortion of income.
Typically a portent of a material distortion of income is the deduction in a single year of interest relating to a period of more than 12 months. See Andrew A. Sandor, supra. In such cases a distortion may result from the cumulation in a single year of deductions related to a period of longer than 1 year. See James V. Cole, supra.
The item now under consideration can in no event exceed the interest which would become payable on the construction loan in a period of approximately one-half year's duration. Respondent nevertheless contends that a material distortion may result from the cumulation of that item and the loan fee. We disagree; for stated interest relating to a period of 1 year or less and a loan fee might typically be paid in a single year in a transaction structured without regard to tax consequences. James V. Cole, supra at 1104 n. 5.
The relatively brief period to which the prepayment in issue relates is a factor to be given considerable weight in determining whether there has been a material distortion of income, but it is by no means dispositive of the issue. In G. Douglas Burck, supra, we held that prepayment of a single year's interest materially distorted income where the prepayment offset an unusually large item of income realized during the year in issue. In this instance, however, there are no circumstances comparable to those in Burck.
Accordingly, we hold that to the extent of the penalty for the prepayment of principal, the $44,000 of prepaid interest was deductible in 1970.
Petitioner contends that HLI is entitled to deduct the items in issue in full.
Respondent contends that when HLI acquired a one-half interest in the Ventura property, a partnership was formed in which HLI's distributive share of income and losses was 50 percent, and that therefore HLI is entitled to deduct only one-half of the items in issue insofar as they may be deductible.
The mere co-ownership of property does not constitute a partnership for purposes of Federal income taxation. A partnership may, however, come to exist if the co-owners use the property in a business activity conducted by them either directly or through an agent. Sec. 301.77-1-3, Proced. & Admin. Regs.
The record discloses that HLI's relationship with Anchorage entailed considerably more than the simple co-ownership of property. Anchorage was responsible for the management of the Villa Scandia and was compensated for its services out of the gross rents realized on the complex. In the management of the complex by Anchorage we perceive sufficient business activity to support the conclusion that a partnership did exist in which HLI's distributive share was 50 percent. We nevertheless hold that insofar as the items in issue are deductible, HLI is entitled to deduct them.
Generally, a partner's distributive share of a partnership deduction is determined with reference to his distributive share of the partnership's taxable income or loss. A particular deduction may, however, be specially allocated to the partner who bears the economic burden of the expenditure underlying the deduction. See Stanley C. Orrisch, 55 T.C. 395 (1970), affd. per curiam (9th Cir. 1973).
As a precondition to HLI's participation in the Villa Scandia project, it was agreed that petitioner and Howard would pay the first $80,000 of interest to accrue on the construction loan. This obligation was satisfied when the items in issue were paid. We sustain the allocation to HLI of the deductions relating to those items because the economic burden of them was borne by petitioner and Howard.
Decision will be entered under Rule 155.