Le Baron v. Commissioner , 39 B.T.A. 747 ( 1939 )

YVONNE C. LE BARON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Le Baron v. Commissioner

Docket No. 89856.

United States Board of Tax Appeals

39 B.T.A. 747; 1939 BTA LEXIS 985;

April 12, 1939, Promulgated

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In February 1934 petitioner, a nonresident alien, sold through a New York broker 500 shares of Coty, Inc., stock. She had no Coty stock on deposit with the broker and gave no instructions to sell specific shares, although she had a large number of shares of Coty stock in custodian accounts with two New York banks. The broker treated the sales as short sales transactions, and so notified petitioner, who at that time made no objection. On December 28, 1935, after examination of her income tax return for 1934, petitioner directed the banks to deliver to the broker shares of stock to replace those borrowed to make delivery on the short sales of February 1934. Held, the sales in question were short sales transactions.

Howe P. Cochran, Esq., and Margaret F. Luers, Esq., for the petitioner.

W. Frank Gibbs, Esq., for the respondent.

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HILL

Respondent determined a deficiency in petitioner's income tax liability for the year 1934 in the amount of $1,343.70. The sole issue submitted for decision is whether or not certain sales of corporate stock made by a firm of brokers in New York for petitioner during the taxable year were short sales transactions. The facts were stipulated by the parties, and we here adopt the stipulation, together with the exhibits, in full as our findings of fact, but will set forth below only so much thereof as we [*] essential to a discussion of the issue.

FINDINGS OF FACT.

Yvonne Cotnareanu Le Baron, sometimes known as Yvonne Cotnareanu, hereinafter referred to as petitioner, is a citizen of France, residing in Paris, France. A nonresident alien income tax return for the calendar year 1934 was filed on her behalf on June 15, 1935, with the collector of internal revenue for the second district of New York.

During the year 1934, and prior thereto, petitioner maintained custodian accounts at the Chase National Bank and Morgan & Co., both in New York, New York.

During the year 1934 and prior thereto, petitioner bought and sold various securities through the brokerage firm of Hentz & Co., which maintained offices in Paris, France, and New York, New York. All orders were given by petitioner to the Paris office of Hentz & Co., and the transactions were executed by the firm in its New York office so far as transactions dealing in American securities were concerned. To record the transactions, Hentz & Co. maintained certain brokerage accounts for petitioner, to which further reference will be made. Petitioner's transactions during the year 1934 with Hentz & Co. approximated a quarter of a million dollars.

At the beginning of the year 1934 and for some years prior thereto, petitioner owned the controlling interests of Coty, Inc., and during the early part of 1934 had on deposit in her account with the Chase National Bank, New York, City, approximately 15,000 shares of Coty, Inc., stock and with J. P. Morgan & Co., New York City, approximately 32,000 shares of Coty, Inc., stock.

From January 1, 1934, to and including January 8, 1934, petitioner had no stock of Coty, Inc., on deposit with Hentz & Co. at either its Paris or New York office. On January 9, 1934, upon orders of petitioner, Hentz & Co. purchased for petitioner 100 shares of stock of Coty, Inc., and her account was debited by $420. These 100 shares of Coty stock remained on deposit with Hentz & Co. until January 17, 1934, when on that day, on orders of petitioner, Hentz & Co. sold for petitioner 100 shares of Coty stock and her account was credited with $435.50. Hentz & Co. made delivery of the 100 shares of Coty stock sold on January 17, 1934, by delivery of the 100 shares purchased on January 9, 1934.

After the foregoing transactions were consummated, petitioner had no Coty stock on deposit with Hentz & Co. and no further transactions with respect to Coty stock were had by petitioner with Hentz & Co. until February 6, 1934, when, upon orders of petitioner, Hentz & Co. sold 200 shares of Coty stock and her account was credited with $1,446. This sale was recorded by Hentz & Co. in its account with petitioner known as "Short of Delayed Delivery Account." On February 6, 1934, petitioner had no shares of Coty stock on deposit with the firm. Similarly, on February 9, 1934, two sales of 100 shares each of Coty stock, and on February 15, 1934, another sale of 100 shares of Coty stock, were made by Hentz & Co., and petitioner's account was credited with $760.50, $735.50, and $760.50, respectively. These sales were recorded by Hentz & Co. in the same "Short or Delayed Delivery Account" as was the sale of February 6, 1934.

There were no further transactions of Coty, Inc., stock by petitioner with Hentz & Co. until May 7, 1934, except that on February 9, 1934, Hentz & Co. borrowed 400 shares of Coty stock in order to make delivery of the sales of 400 shares sold for petitioner on February 6 and 9, 1934, and petitioner's account was charged $16therefor.

On May 7, 1934, on orders of petitioner, Hentz & Co. purchased for petitioner 200 shares of Coty stock and her "Short or Delayed Delivery Account" was debited by $1,165; on May 14, 1934, two purchases of 100 shares each of Coty stock were similarly made, and on May 15, 1934, another purchase of 100 shares was made and petitioner's account was debited by $632.50, $607.50, and $570, respectively. Hentz & Co. applied the purchases made on May 7, 14, and 15, 1934, to satisfy the 400 shares borrowed on February 9, 1934, and the sale of 100 shares of February 15, 1934.

On orders of petitioner, Hentz & Co. purchased 300 shares of Coty stock on May 15, 100 shares on May 25, another 100 shares on May 28, and 200 shares on May 29, 1934, petitioner's account being debited for the purchase price of these stocks.

Hentz & Co. mailed and caused to be sent to petitioner each month statements reflecting the transactions she had with the firm during the preceding month.

During the year 1934 neither the Chase National Bank nor Morgan & Co. received any instructions from petitioner to transfer or caused to be delivered to Hentz & Co. any of the Coty stock held by those companies in the custodian accounts, and neither firm during the year 1934 made any delivery of petitioner's Coty stock to Hentz & Co.

During the year 1934 petitioner did not advise or in any way indicate to Hentz & Co. that the sales of Coty stock made during 1934 for petitioner were or were not to be delivered and satisfied from her Coty stock on deposit which Chase National Bank and Morgan & Co.

On September 4, 1935, petitioner requested by cablegram sent to the Chase National Bank, New York City, that a statement be sent to her showing the sales of securities made by her, and how the capital gain of $41,916.66, reported on her income tax return for 1934, was computed. The Chase National Bank replied by letter dated September 7, 1935, enclosing a statement of the information requested by petitioner taken from a transcript of the records of Hentz & Co.

During September and December 1935 letters were exchanged between petitioner and the Chase National Bank concerning the filing of an amended return in behalf of petitioner for the year 1934 for the purpose of showing the sales of the 600 shares of Coty stock in that year, hereinabove referred to, as having been made out of lots of stock purchased in 1930 and held in the Morgan and Chase custodian accounts.

On December 28, 1935, petitioner cabled the Chase National Bank to deliver to Hentz & Co. free 300 shares of Coty "from stock bought in 1930 at 33 to cover sales 1934 test 305." Also on December 28, 1935, petitioner caused the Paris office of Morgan & Co. to cable its New York office to deliver to Hentz & Co. free 300 shares of Coty stock purchased in 1930 at 27 "to cover short sales 1934."

Thereafter on January 2, 1936, Hentz & Co. received from the Chase National Bank 300 shares of Coty stock, and on March 27, 1936, a like number of shares from Morgan & Co., together with a memorandum to the effect that at the customer's request they were asked to note that these shares were the shares which petitioner intended to deliver in March 1934.

Petitioner instructed the Chase National Bank to prepare an amended return for the calendar year 1934, which was prepared and filed with the collector of internal revenue at Baltimore, Maryland, February 12, 1936, showing capital net gain in the amount of $34,436.64. In this amended return, in determining the loss sustained as a result of the sales of Coty, Inc., stock in 1934, petitioner used as a cost basis the cost of the 600 shares of Coty stock purchased in 1930, which were transferred to Hentz & Co. by the Chase National Bank and Morgan & Co., as hereinabove stated.

OPINION.

HILL: The sole question presented for decision is whether the gain or loss resulting from the sale of 600 shares of Coty stock by Hentz & Co. for petitioner during 1934 should be determined upon the basis of the cost to petitioner of the 600 shares of Coty stock transferred to Hentz & Co. by the Chase Bank and Morgan & Co. in 1936, 300 shares of which had a cost basis of approximately 33 and the remainder a cost basis of 27; or whether such gain or loss should be determined on the basis of the cost of the Coty stock purchased for petitioner by Hentz & Co. in 1934, which cost varied from about 5.70 to 6.32. More briefly and simply stated, the question is whether the sales of Coty stock made in January and February 1934 by the brokerage firm of Hentz & Co. for petitioner were short sales transactions or sales of the shares of Coty stock delivered to the brokers by the Chase Bank and Morgan & Co. in 1936.

The parties agree that if the sales referred to are held to be short sales transactions, the Board shall approve the deficiency determined by respondent; but if it is held that the Coty stock sold in 1934 was the 600 shares transferred to the brokers by the Chase Bank and Morgan & Co., then the amount of the loss computed by petitioner, and shown in her amended, return, is correct.

On January 9, 1934, Hentz & Co. purchased for petitioner 100 shares of Coty stock. On January 17 the brokers sold on petitioner's order 100 shares and delivered in satisfaction of that sale the shares purchased on January 9, since petitioner had no other shares on deposit with the brokers and had not given instructions to sell other specific shares. On February 6 the brokers sold for petitioner 200 shares of the same stock, a like number of shares on February 9, and 100 shares on February 15, making a total of 500 shares so sold. Petitioner then had no Coty stock deposited with the brokers and again gave no instructions to sell specific shares, although she had a large number of shares deposited in custodian accounts with the Chase Bank and Morgan & Co. So far as shown, the brokers had no information concerning the stock in custodian accounts, but in any event, treated the sales above mentioned as short sales transactions, recording the same in petitioner's "Short or Delayed Delivery Account." On February 9 the brokers borrowed 400 shares to make delivery on the short sales of February 6 and 9. Thereafter, on orders of petitioner the brokers purchased 200 shares of Coty stock on May 7, the same unmber on the 14th, and 100 shares on the 15th, making total purchases of 500 shares, which they applied to satisfy the 400 shares borrowed on February 9 and the sale of 100 shares on February 15.

The brokers mailed to petitioner each month a statement reflecting the transactions had with the firm in the preceding month. Such a statement was mailed in March 1934, showing the February short sales recorded in petitioner's "Short or Delayed Delivery Account." Yet petitioner did not advise the brokers of any objection to their method of treating the transactions or that she intended to sell shares of Coty stock which she had on deposit with either Chase or Morgan, nor did she direct either of the latter firms to deliver any shares of her stock to the brokers to be used in satisfying the 400 shares borrowed to make delivery on the short sales until approximately a year and a half thereafter.

Petitioner's income tax return for 1934 was filed for her by the Chase bank on June 15, 1935, and on September 4, 1935, petitioner requested by cablegram a statement showing how the capital gain reported in such return had been computed. And it was not until December 28, 1935, that she directed the Chase Bank and Morgan & Co. to deliver the 600 shares of Coty stock to the brokers.

We can not conclude from the foregoing facts that it was petitioner's intention to sell shares of stock on deposit with Chase Bank and Morgan & Co. at the time she gave instructions to Hentz & Co. in February 1934 to sell for her account 500 shares of Coty stock. She then well knew that she had no shares of such stock on deposit with the brokers, and, after being informed by the brokers that they had treated the transactions as short sales, she made no move to transfer to the brokers shares of Coty stock from her custodian accounts to replace the shares borrowed by the brokers, which were in fact replaced by the purchases made in May 1934, of which fact petitioner was promptly advised and to which she made no objection.

There is no suggestion in the record that the brokers acted without authority in treating the sales as short sales transactions, nor does petitioner now contend that they violated in any manner her instruction in so doing. But even if petitioner has instructed the brokers to sell shares out of her custodian accounts, the fact is she subsequently failed to direct Chase Bank or Morgan & Co. to deliver to the brokers the required number of shares to satisfy the short sales, and thereafter acquiesced in the action of the brokers in so applying shares purchased in May 1934; hence, she could not prevail in her present contentions. Petitioner undoubtedly had the right to deliver the shares purchased in May 1934 rather than those contained in her custodian accounts, if she desired to do so. Her acquiescence in such action of the brokers does not indicate an intention at that time to sell other shares. Tax liability must be determined not on a taxpayer's intentions but on the basis of what was actually done. And the taxpayer may make short sales of stock in which he has at the same time a long account. Cf. .

In , affirming , which had affirmed , the taxpayer directed his broker to sell 1,000 shares of stock purchased earlier in the year at $49.90 per share. He directed the bank to deliver to the broker shares representing such purchase, but the bank actually delivered certificates representing a purchase at $4.42 per share, which shares the broker sold. In its opinion, the Supreme Court said:

* * * Undoubtedly, petitioner sufficiently indicated to the broker and to the bank the shares he intended to sell. He plainly allocated the lots to be sold to the 1,000 shares he bought in 1929. But it does not follow that they were the shares sold. His intention to sell, even when coupled with his other to the broker and direction to the bank, cannot be held to constitute sale. . Notwithstanding his order to the broker to sell shares in the 1929 lot, petitioner was free later to direct that shares from the other lot be used for final consummation of the sale. And so, when the bank delivered him certificates of stock not designated in his order to sell, the broker may well have assumed that petitioner's final purpose was to sell the shares covered by the certificates that the bank sent him. He had no reason to suppose that the bank did not act in accordance with instructions given it by petitioner. The case is not different from what it would have been, if petitioner himself had delivered to the broker the certificates sent by the bank. Plainly, petitioner's contention that the certificates used to complete the sale did not cover the shares sold cannot be upheld. . The commissioner rightly computed gain on the basis of what was done rather than on what petitioner intended to do. * * *

On brief petitioner cites, among others, in support of her contention that the transactions in question were not short sales, , affirming , and . The cited cases are not in point. In distinguishing the Mott, Ferree, and other decisions, we said in :

In all of the above cases where it was held that the sales were not short sales the evidence showed that at the time of the transaction the taxpayer and a clear intention to sell the specific shares which he then held, and so instructed his broker. No such facts obtain in the proceeding at bar.

The language above quoted is equally applicable here.

For the reasons indicated, we hold that the sales in controversy were short sales transactions, and approve the deficiency determined by respondent.

Decision will be entered for the respondent.