A. H. Stange Co. v. Commissioner , 1 B.T.A. 58 ( 1924 )

Appeals of A. H. STANGE CO.

KINZEL LUMBER CO.

A. H. Stange Co. v. Commissioner

Docket Nos. 4, 6.

United States Board of Tax Appeals

1 B.T.A. 58; 1924 BTA LEXIS 258;

November 14, 1924, decided Submitted September 4, 1924.

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The presumption that instruments made in the form and the language of debenture notes and issued by a newly organized corporation to the subscribers for its capital stock, and in an amount which, together with its authorized stock issue, equals the value of the properties turned over to the corporation at the instance of its organizers, represent borrowed capital, can be overcome, if at all, only by convincing evidence.

The evidence presented by the taxpayers in these cases in support of their contention that properties equaling in value the amount of the debenture note issue are in fact paid-in surplus and not borrowed capital held insufficient to overcome the presumption.

Allen R. Smart, C.A.P., for the taxpayers.

A Calder Mackay, Esq. (Nelson T. Hartson, Solicitor of Internal Revenue) for the Commissioner.

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Before JAMES, TRAMMELL, TRUSSELL, and STERNHAGEN.

FINDINGS OF FACT.

1. The A. H. Stange Co. was, in 1895, incorporated under the laws of the State of Wisconsin, and prior to May, 1914, its stock was owned by A. H. Stange and his children.

2. During the month of May, 1914, the stockholders of the A. H. Stange Co. incorporated and subscribed for all of the stock of the Union Land Co. and the Kinzel Lumber Co.

3. The officers of the A. H. Stange Co., having been authorized by its stockholders, conveyed to the Union Land Co. certain timber lands and equipment, together with $60,000 in cash; and that the property so received by the Union Land Co. was entered on its books at a value of $3,430,000.

4. Upon receiving this property the Union Land Co. issued to the subscribers for its capital stock its entire authorized capital stock amounting to $245,000 and $3,185,000 noninterest bearing 20-year debenture notes, of which the following is a copy:

TWENTY-YEAR NONINTEREST BEARING DEBENTURE NOTE OF UNION LAND CO.

Series C

No. .

$15,000.

Union Land Co., a corporation of Merrill, Wis., for value received, promises to pay to the bearer or registered holder thereof, on or before 20 years from date hereof, the sum of fifteen thousand dollars (15,000), without interest, at the company's office in the city of Merrill, Wis. This note is one of 510 notes in three series - Series A, numbered from 1 to 210, both inclusive; Series B, numbered from 211 to 410, both inclusive; and Series C, numbered from 411 to 510, both inclusive, all of like tenor, issued in denominations of $2,500, $5,000, $7,500, $10,000, and $15,000, the aggregate of which is limited to $3,185,000. The issue can only be retired in payments of $35,000 or multiple thereof of any of said series and only in the numerical order of any of said series.

This note, with all other outstanding notes of series A, B, and C, shall be a first lien on all of the assets of Union Land Co., which corporation agrees with the bearer or registered holder hereof that it will not mortgage its real or personal property while this note or any other notes of this issue remains outstanding and unpaid. This note may be registered in the name of the holder on the books of the company, otherwise shall pass by delivery and without indorsement.

In witness whereof, Union Land Co. has caused this note to be signed by its president and by its treasurer, and its corporate seal to be hereto affixed this 1st day of July, 1914.

UNION LAND CO.

By A. H. Stange, President.

By F. W. King, Treasurer.

5. A similar course was followed by the Kinzel Lumber Co.

6. During the taxable year 1917 the Kinzel Lumber Co. and the A. H. Stange Co., together with certain other corporations, were affiliated with the Union Land Co.; and that in computing the consolidated invested capital of the affiliated corporations the Commissioner disallowed the amounts represented by these notes, or a total of $3,220,000; and that the deficiency tax proposed to be assessed against the Kinzel Lumber Co. is its pro rata share of the tax found by the Commissioner to be due from the affiliated group.

DECISION.

The determination by the Commissioner of deficiencies in tax with respect to Kinzel Lumber Co., in the amount of $1,022.48, and of A. H. Stange Co., in the amount of $774.49, is approved.