Tracy v. Commissioner , 38 B.T.A. 1366 ( 1938 )

WILLIAM R. TRACY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Tracy v. Commissioner

Docket No. 82578.

United States Board of Tax Appeals

38 B.T.A. 1366; 1938 BTA LEXIS 748;

December 13, 1938, Promulgated

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For a number of years the petitioner maintained two separate trading accounts with his broker, one designated as the "regular" account and the other as the "special" account. It was agreed that the two accounts were to be considered together for the purpose of determining the amount of margin required of petitioner but in all other respects they were treated separately and the trading in one account had no relation to trading in the other. In the regular account petitioner maintained a long position in General Motors stock and it was understood between him and the broker that none of that stock was to be sold except for the protection of the broker, and then only after notice to the petitioner. From time to time petitioner made short sales of General Motors stock through the special account. On February 7, 1932, the broker, acting upon instructions from petitioner, closed the special account by using General Motors shares held in the regular account for the purpose of covering the short position of the special account. Held, that the gain realized resulted from short sales within the meaning of section 23(s) of the Revenue Act of 1932 and the entire amount of the gain so realized is taxable as ordinary income.

Ernest B. Butler, C.P.A., and Franklin D. Dougherty, Esq., for the petitioner.

Philip A. Bayer, Esq., for the respondent.

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TURNER

This proceeding involves a deficiency in income tax in the sum of $18,760.48 for the year 1932. The only issue presented is whether certain sales of securities made by the petitioner through a brokerage firm constitute short sales resulting in ordinary gain or long sales resulting in capital gain.

FINDINGS OF FACT.

The petitioner is an individual citizen residing in Plymouth Hills, Michigan. For the past eight years he has been sales manager for the Hudson Motor Car Co. Prior to that time he held similar positions with the Pontiac Motor Car Co. and the Oakland Motor Car Co.

On September 24, 1937, the petitioner and his wife, Helen G. Tracy, opened a joint trading account with the brokerage firm of Watling, Lerchen & Hayes of Detroit, Michigan. This account was used for purchases and sales of various securities and is hereinafter referred to as the "regular" account. In order to be able to better identify certain shares of stock which he bought and sold the petitioner instructed the brokerage firm on July 24, 1929, to open another joint trading account for himself and wife, which was to be designated as the "special" account. On August 2, 1929, petitioner wrote a letter to the brokerage firm stating that he and his wife guaranteed the special account opened for them and authorized the firm to consider the special account collectively with the general account for marginal purposes.

On May 31, 1929, the regular account showed a debit balance of $177,408.13, representing petitioner's indebtedness to the brokers. On that date he had on deposit in that account the following securities:

500 shares Cloplin Sales Corporation

2,300 shares General Motors common

200 shares Hiram Walker

200 (rights) Hiram Walker

525 shares Hupmobile

1,100 shares Hudson

121 shares New York Central

From May 31, 1929, to February 7, 1932, the regular account reflected flected the following transactions in General Motors common stock:

	Shares of General Motors common stock
Date	Bought	Sold	Balance on deposit
May 1929			2,300
Nov. 1929	3,000		5,300
Feb. 1929		2,000	3,300
Apr. 1930	5,000		8,300
May 1930	4,875		13,175
Oct. 1930	9,755		22,930
Dec. 1930		2,055	20,875
Sept. 1931 (transfer)	3,000		23,875
Feb. 7, 1932			23,875

There were no purchases or sales of General Motors common stock recorded in the regular account between January 1, 1931, and February 7, 1932. The 3,000 share increase in September 1931 resulted from an additional deposit to the account made by the petitioner. On February 7, 1932, the regular account showed a debit balance in the sum of $700,317.61, at which time the following securities were on deposit:

200 shares Allied Chemical & Dye

200 shares Air Reduction

23,875 shares General Motors common

21 shares General Motors 5% preferred

1,015 shares Goldman Sachs PO

600 shares Hiram Walker PO

100 shares Hershey Chocolate

11,200 shares Hudson

1,250 shares Intl. Vitiman PO

100 shares N. Y.Honduras Rossario PO

210 5/40 shares Paramount Publix

On July 31, 1929, the special account showed a credit balance in favor of the petitioner and his wife in the amount of $153,919.61, and a short position of 2,000 shares of General Motors common stock. Purchases and sales of General Motors common stock recorded in the special account from July 1929 to February 7, 1932, are as follows:

	Shares		Position
Date	Bought	Sold	Long	Short
July 31, 1929				2,000
Oct. 30, 1929	2,000
Nov. 13, 1930		2,000		2,000
Apr. 23, 1930	1,900			100
May 2, 1930	100
May 8, 1930	2,400		2,400
May 9, 1930	1,000		3,400
May 20, 1930		3,000	400
June 11, 1930	500		900
June 19, 1930		2,000		1,100
June 30, 1930		2,000		3,100
Oct. 15, 1930	200			2,900
Oct. 17, 1930		7,000		9,900
Jan. 6, 1931	900			9,000
Jan. 7, 1931	1,000			8,000
Feb. 10, 1931		1,900		9,900
Mar. 31, 1931	2,000			7,900
Apr. 22, 1931		10,000		17,900
Apr. 27, 1931	2,000			15,900
Apr. 30, 1931		2,000		17,900
May 1, 1931	5,000			12,900
May 12, 1931		5,000		17,900
May 29, 1931	2,000			15,900
June 1, 1931	2,000	2,000		15,900
June 8, 1931	1,000			14,900
June 15, 1931	500			14,400
June 25, 1931	3,000			11,400
July 9, 1931		5,000		16,400
Nov. 30, 1931		1,000		17,400
Dec. 1, 1931		1,000		18,400
Dec. 2, 1931		1,000		19,400
Dec. 18, 1931		1,000		20,400
Jan. 5, 1932		2,000		22,400
Feb. 7, 1932				22,400

On February 7, 1932, the special account showed a credit balance of $569,946.66, and a short position of 22,400 shares of General Motors common stock. All of the sales of General Motors common stock reflected in the special account during the year 1931 are shown on the account as short sales and none of such sales were reported in petitioner's income tax return for that year. On his return for 1931 the petitioner reported the receipt of $73,934.92 as dividends from General Motors stock standing in his name and $12,902.50 as dividends credited to his regular account on General Motors stock which had not been transferred to his name. In computing the net amount of dividends to be reported on his 1931 return petitioner deducted the sum of $43,950 representing a dividend charge to the special account for short sales of General Motors stock.

The securities deposited in the regular account were endorsed in blank or were in such form as to be available for transfer. They were used by the brokers as collateral in obtaining loans. The brokers agreed that they would not sell any of the securities in this account unless it became necessary for their own protection and in that event, as a courtesy to the petitioner, they would notify him before doing so. It was the petitioner's desire to keep all his General Motors stock and to sell as little as was necessary to keep his account in proper condition. During the period between January 1, 1931, and February 7, 1932, he requested the brokers to make all his purchases and sales of General Motors stock for the special account. When such sales were made the brokers would not use the stock on deposit in the regular account to make the deliveries but would use borrowed stock. The shares sold were not identifiable until the sales were covered. The petitioner received monthly statements from the brokers showing the short position in the special account and at all times knew that the brokers had used borrowed stock to effect delivery on all sales of General Motors stock made in the special account.

On February 8, 1932, the petitioner instructed the brokers to close the special account and to transfer the balance to the regular account. On that date the brokers advised the petitioner by letter that the special account had been closed and that they would "make the delivery of 22,400 shares General Motors previously sold in the 'special' account from the shares we have been carrying in your name in the W. R. and Helen Tracy 'regular' account." All of such shares which at that time were in Detroit were taken down out of loans and sent by the brokers to their correspondent in New York to reduce their net position with such correspondent.

The petitioner and his wife filed a joint income tax return for the year 1932 in which they reported the sale of 22,400 shares of General Motors common stock as a sale of capital assets. The respondent determined that such sales were short sales, resulting in ordinary income.

OPINION.

TURNER: The respondent contends that the sales of General Motors common stock reflected in the special account constituted short sales within the meaning of section 23(s) of the Revenue Act of 1932, ^{*755 not taxable in 1932, and further that the sale of 2,000 shares in January 1932 must be treated as a sale of capital assets.}

The facts presented in the case of du , seem to be on all fours with the present case. There the taxpayer, more than two years prior to the taxable year, purchased certain shares of stocks which were left in the possession of his broker and carried in long accounts. Thereafter the taxpayer directed his broker to sell short, and his broker did sell short, the same number of shares of the same stocks as were deposited in his long accounts. The proceeds of the sales were credited by the broker to short accounts of the taxpayer. Subsequently and during the taxable year the broker, acting upon the taxpayer's instructions, transferred from his long accounts to his short accounts the necessary number of shares of stock to cover the short sales. In deciding that such sales constituted short sales, the court said:

It will be observed that both transactions in the case at bar possessed, to a certain degree, a dual nature and reciprocal characteristics. When the petitioner covered the short sales by delivery of the securities held by him in the long accounts he disposed by one step of a long interest and of a short obligation. The price at which the short sales were made did in fact fix the price or value of the stock delivered by him from his long accounts. On the other hand, the sales made by the petitioner were short sales of the type known generally as "hedging sales" or "sales against the box." Such sales are made when the owner of stock desires to avoid the risk of future price fluctuations of stock owned by him. He has shares on hand and available but does not desire to dispose of them immediately for reasons which he deems sufficient. If the stock declines, he can cover at a profit. If the stock increases in value, he can deliver the shares which he owns and avoid loss.

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It is true that the petitioner purchased the stock in his long account for purposes of profit, and to say that the profit realized did not come from his original investment would be untrue. The fact remains, however, that he moulded the disposition of his long interest into the form and substance of short sales. When the petitioner once ordered his brokers to sell stock short, a covering process of some kind was inescapable. Had he covered the short sales by the purchase of securities upon the open market and had achieved a gain thereby, such a gain would have been the result of a short sale. Had he sold his long interest without relation to a short sale, the net gain, if any, would have been taxable solely under the provisions of Section 101 of the Revenue Act of 1932. But the petitioner has elected to make use of a short sales device to dispose of his long interest. It cannot be said that the sales made by the petitioner were short sales in form and not in substance for they were short sales in fact. * * *

In , we held that where a taxpayer makes short sales of stock and thereafter covers such sales by delivering shares out of a quantity of stock which, on the date of the short sales he had held for more than two years, section 23(s), supra, applies and the entire gain is taxable as ordinary income. In our discussion of short sales in that case we referred to three principal purposes for which the device is generally used in connection with securities, the third of which seems to fit the facts of the present case, and in respect of which we said the following:

* * * In the third class are short sales made for the purpose of "hedging." These are called also "sales against the box." They occur when an owner of stock resorts to a short sale in order to avoid the risk of future price fluctuations. He owns sufficient securities to make delivery, but chooses to make a short sale involving the borrowing of shares for delivery, rather than to sell and make the delivery of the shares which he owns. The owner of a large block of stock, which gives him a measure of control over the affairs of the corporation, may desire to take advantage of the current market price and yet retain his control in the corporation. He can accomplish his purpose by making a short sale. Later, if the stock declines, he can make a covering purchase and realize a profit, or, if the stock advances, he can make delivery of his own stock and lose control, or make a covering purchase and sustain a loss. Hedging is also resorted to by the "odd lot dealers" on the floor of the exchange in order to avoid the risk of owning a large block of stock. It is also adopted by professional speculators who seek to profit by buying in the cheaper and selling in the dearer market, where the same security is listed on two different exchanges. As authority for the statements in this paragraph, see Short Selling (1932) Meeker; The Work of the Stock Exchange (1922) Meeker; Short Selling (1933), Owen Taylor; Short Selling, For and Against (1932), Whitney and Perkins.

In the instant case the petitioner instructed his brokers to make the sales of General Motors stock in question for the special account, and not to sell any of such stock deposited in the regular account without giving him notice before doing so. It was agreed that the General Motors stock deposited in the regular account would not be sold unless it became necessary to do so for the brokers' protection and it apparently never became necessary because the brokers, within the time limits prescribed by the rules of the New York Stock Exchange, covered all sales in the special account with borrowed stock. We think the important point is that when the various sales of General Motors stock were made for the special account it was not contemplated by either the petitioner or the brokers that a like number of shares of General Motors stock would be withdrawn from the regular account for delivery. The shares sold were unidentifiable at the time of the sale, there being no intention to sell the particular shares on deposit in the regular account. We think these facts bring the transactions in question within the meaning of short sales and on the authority of the cases cited we hold that section 23(s), supra, applies and the entire gain realized from the sales of the 22,400 shares is taxable as ordinary income.

Decision will be entered under Rule 50.

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Footnotes

• 1. SEC. 23. DEDUCTIONS FROM GROSS INCOME.

  In computing net income there shall be allowed as deductions:

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  (s) SAME - SHORT SALES. - For the purposes of this title, gains or losses (A) from short sales of stocks and bonds, or (B) attributable to privileges or options to buy or sell such stocks and bonds, or (C) from sales or exchanges of such privileges or options, shall be considered as gains or losses from gains or exchanges of stocks or bonds which are not capital assets. ↩