Raymond R. Bill & Co. v. Commissioner , 15 B.T.A. 320 ( 1929 )

RAYMOND R. BILL & CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Raymond R. Bill & Co. v. Commissioner

Docket No. 15399.

United States Board of Tax Appeals

15 B.T.A. 320; 1929 BTA LEXIS 2880;

February 11, 1929, Promulgated

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Held, that certain stock accepted in part payment of an account had no fair market value.

Bernard D. Hathcock, Esq., for the petitioner.

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

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VAN FOSSAN

Petitioner, by its amended petition, asks redetermination of deficiencies in income and profits taxes of $1,048.88 for the fiscal year ended February 29, 1920, and $925.17 for the fiscal year ended February 28, 1921. By order entered July 14, 1927, the Board sustained respondent's motion to dismiss the proceeding as to the fiscal year ended February 28, 1921. As to the year 1920 error is alleged in failure of respondent to allow a deduction of $3,600 on account of certain stock received in part payment of a debt. Petitioner also pleads the statute of limitations.

FINDINGS OF FACT.

Petitioner is a corporation organized under the laws of Massachusetts with offices at West Springfield, and is engaged in business as a heating contractor. Prior to June, 1919, it did some work for the Hotel Bridgway Co., amounting to approximately $7,200. The Hotel Bridgway Co. was an operating company holding a lease on a hotel building but having no rights in the real estate. The Hotel Company became financially involved and, failing to meet its debts, a meeting of its creditors was called about June 1, 1919. At this meeting it developed that the Hotel Company was indebted some $40,000, which sum it was unable to pay. The treasurer of the Hotel Company, a Mr. Myrick, finally offered to loan the Hotel Company $20,000, accepting its notes therefor, if all the creditors would agree to accept in payment of their accounts one-half in cash and one-half in stock of the Hotel Company. The only alternative offered was a petition in bankruptcy. After consultation the creditors accepted and petitioner received a cash payment of $3,600 and stock of the Hotel Company of a par value of $3,600. Petitioner received $3,000 of the stock on June 26, 1919, and the remaining $600 on July 5, 1919.

Petitioner entered the stock on its books at its face value and did not claim a loss in its income-tax return for the year involved.

About a month after receiving the stock petitioner offered the same to a bank as collateral for a loan but the bank refused to receive it. On several occasions petitioner tried to sell the stock but the persons to whom it was offered declined to buy for the reason they considered the stock without value. Petitioner offered the stock to one of its creditors in part payment of an account but they refused to receive it. Two brokers to whom the stock was offered refused to consider handling it. Petitioner has never realized anything on the stock.

At the time of the creditors' meeting the Hotel Company had no cash and its assets, consisting of draperies and furnishings, were largely held subject to conditional bills of sale. After the infusion of new borrowed capital the Hotel Company was able for a time to show a more favorable condition, but it was not successful and was wound up in 1923, its total assets being then sold for $500.

Petitioner filed its income-tax return for the fiscal year ended February 29, 1920, on or about June 29, 1920. On February 24, 1925, petitioner signed and mailed to respondent an income and profits-tax waiver extending the time within which an assessment might be made with respect to the fiscal year ended February 29, 1920, to December 31, 1925. On November 21, 1925, petitioner executed and sent to respondent an "Income and Profits Tax Waiver for taxable years ended prior to January 1, 1922," purporting to extend the time for making "any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the year 1920 under existing revenue acts, or under prior revenue acts." Said waiver of November 21 was to be effective "until December 31, 1926." On March 3, 1926, a notice of a deficiency of $1,974.05, covering the fiscal years ended February 29, 1920, and February 28, 1921, was mailed to petitioner. This proceeding was filed March 3, 1926.

OPINION.

VAN FOSSAN: The evidence in this case convinces us that at the time petitioner accepted the stock of its debtor in part payment of its debt, the stock was worthless. It took the stock only because by agreeing so to do it could obtain payment of one-half of the debt in cash. It was a case of take part cash and part stock or force the debtor into bankruptcy, in which event petitioner believed "we would have received practically nothing; as it was, we received 50 per cent of our account." Petitioner, therefore, suffered a deductible loss at the time it received the stock.

The principle of the issue as to the statute of limitations and the validity of the waiver of November 21, 1925, was decided adversely to petitioner's contention in .

Judgment will be entered under Rule 50.