Edisto River Lumber Co. v. Commissioner

EDISTO RIVER LUMBER CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Edisto River Lumber Co. v. Commissioner

Docket No. 11435.

United States Board of Tax Appeals

10 B.T.A. 590; 1928 BTA LEXIS 4075;

February 7, 1928, Promulgated

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In the year 1917 the petitioner was indebted to one of its stockholders for timber purchased, which indebtedness was evidenced by promissory notes. On or about August 1, 1917, the petitioner and the stockholder agreed that the petitioner would issue and the stockholder would accept, preferred stock of the petitioner in exchange for the notes. The agreement was not executed until June 1, 1918. Held, that the amount of the notes should not be included in the petitioner's invested capital for 1917.

J. F. Spoerri, Esq., for the petitioner.

Alva C. Baird, Esq., and J. Harry Byrne, Esq., for the respondent.

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MARQUETTE

By this proceeding the petitioner seeks the redetermination of a deficiency in income and profits taxes asserted by the respondent for the year 1917 in the amount of $10,450.30. The deficiency arises from the exclusion by the respondent from the petitioner's invested capital for the year 1917 of the amount of $91,608.75, representing the unpaid balance at December 31, 1916, due from the petitioner on a contract for the purchase of certain timber tracts.

FINDINGS OF FACT.

The petitioner is a corporation organized under the laws of the State of Illinois in the year 1914 for the purpose of cutting and manufacturing certain tracts of timber owned by one Curtis J. Judd. The capital of the corporation was $100,000 common stock, of which Judd owned about 20 per cent, the remainder of the stock being owned by John O. Nessen, J. W. Embree, and M. F. Rittenhouse.

On February 2, 1915, the petitioner entered into a written contract to purchase from C. J. Judd certain tracts of timber at a price to be determined by applying a rate of $3 per thousand feet for the amount of timber in the tract as shown by a cruise thereafter to be made. By a supplemental contract made on March 27, 1915, the purchase price of the timber tract was fixed at $107,775, for which the petitioner gave to Judd twenty noninterest-bearing promissory notes for $5,388.75 each. The first note was due and payable August 2, 1915, and one note became due and payable each six months thereafter. The timber tracts were conveyed by Judd to the petitioner on July 14, 1915.

During the years 1915 and 1916 payments in the amount of $16,166.25 were made by the petitioner on the notes given by it to Judd, so that on December 31, 1916, the amount of the outstanding notes was $91,608.75.

Some time in the year 1916 the petitioner's officers entered into negotiations with a Colonel Smith who was acting as financial agent for C. J. Judd, with a view to issuing shares of the petitioner's stock to Judd in exchange for the notes mentioned. A proposition was made to Smith that the petitioner would accept the notes in payment for stock of an equal par value. Smith communicated the petitioner's offer to Judd, and on or about August 1, 1917, Judd orally agreed to surrender the notes and to accept the petitioner's "A-Preferred" stock of a par value equal to the face value of the notes. Shortly thereafter Judd went to Florida and remained there until the spring of 1918, and the agreement mentioned was not executed until June 1, 1918. On that date a written contract was entered into by Judd and the petitioner, which contained the following provision:

The said second parties hereby covenant and agree that they will purchase from the said first party said Seven Hundred Fifty-Four and Four Hundred Twenty-five One Thousandths, (754-425/1000) shares of A-Preferred stock, paying cash therefor in the following amounts and on the following dates:

$5,388.75 on August 2, 1918

5,388.75 on Feb. 2, 1919

5,388.75 on August 2, 1919

5,388.75 on Feb. 2, 1920

5,388.75 on August 2, 1920

5,388.75 on Feb. 2, 1921

5,388.75 on August 2, 1921

$5, 388.75 on Feb. 2, 1922

5,388.75 on August 2, 1922

5,388.75 on Feb. 2, 1923

5,388.75 on ,August 2, 1923

5,388.75 on Feb. 2, 1924

5,388.75 on August 2, 1924

5,388.75 on Feb. 2, 1925

On or about June 1, 1918, the petitioner's "A-Preferred" stock was issued to Judd in the amount of $91,608.75.

The respondent, in computing the petitioner's invested capital for 1917, did not include therein any part of the amount of $91,608.75 mentioned.

OPINION.

MARQUETTE: In its petition herein the petitioner alleges that it is entitled to include in its invested capital for the year 1917 the entire amount of $91,608.75, for which it issued preferred stock to Judd in 1918, but at the hearing it admitted that in any event it was not entitled to include that amount in invested capital until August 1, 1917, because it was not until that date that Judd accepted the proposition to surrender the notes and accept stock therefor. The respondent contends that the amount in question did not become part of the invested capital of the petitioner until June, 1918, when the contract was executed, the stock issued, and the notes canceled.

Upon consideration of the record before us we are of the opinion that the contention of the petitioner can not be sustained. Conceding that in August, 1917, Judd agreed to surrender the notes and to accept stock in exchange therefor, that fact did not of itself change the status of either Judd or the petitioner. The agreement was wholly executory and it was not carried into effect until June, 1918. In the meantime the notes were outstanding and still constituted obligations of the petitioner, and it may be noted that on the balance sheet attached to the petitioner's income and profits-tax return for 1917 they were included among its liabilities in the amount of $91,608.75 at the beginning of the year and $80,831.25 at the end of the year. The petitioner relies upon the decision of this Board in . However, in that case the money was actually paid in to the corporation with the understanding that stock would be issued therefor as soon as the necessary authority could be secured. On the part of the payor the contract was fully executed. The money was in the hands of, and belonged to the corporation from the day paid in and was properly held to be a part of its invested capital from that date. We do not consider that decision as supporting the petitioner's contention in the instant case.

In , the facts were that prior to January 1, 1917, C. T. Lamb made cash advances in amounts exceeding $200,000 to the taxpayer corporation, and as evidence of such advances the taxpayer executed and delivered to Lamb from time to time its promissory notes aggregating the amount of such advances. On or about the first day of April, 1918, the taxpayer's notes held by Lamb in the sum of $200,000 were exchanged for the preferred stock of the taxpayer company of the par value of $200,000. It was alleged that at the time Lamb made the advances to the taxpayer corporation he intended that the amounts thereof should become a part of the invested capital of the taxpayer. In holding that the amounts in question did not become invested capital of the taxpayer corporation at any time prior to the date stock was issued in exchange therefor, we said:

It thus appears that even though we should accept the allegations of the taxpayer as evidence that Lamb, at the time when he made these advances, intended that the sum should become part of the invested capital of the business of the taxpayer, such intention was not actually carried out and made effective until the time when the notes, given by the taxpayer as evidence of the advances, were actually exchanged for the preferred stock shares of the taxpayer company, and this exchange not having taken place until after the close of the year 1917 we must necessarily hold that during the year 1917 these advances represented borrowed capital and not invested capital.

The situation we are considering in this proceeding is practically identical with that in , and we are of the opinion that the decision in that appeal is decisive of the question here presented. We accordingly hold that no part of the $91,608.75 in controversy herein should be included in the petitioner's invested capital for the year 1917.

Judgment will be entered for the respondent