DocketNumber： Docket No. 40700.
Citation Numbers： 23 B.T.A. 536, 1931 BTA LEXIS 1862
Judges： Akundell
Filed Date： 6/2/1931
Status： Precedential
Modified Date： 1/12/2023
*1862 Where, under the facts here presented, the liquidating trustees of a dissolved corporation actually distribute to the stockholders thereof in the year 1925 their pro rata share of the corporate assets, and the stock of the corporation is surrendered and canceled, a loss suffered by the stockholders is sustained as of that time and the deduction may not be postponed until the following year when the accounts of the trustees are finally approved by the court and the compensation of the trustees, theretofore agreed to, are formally approved.
*536 Proceeding for the redetermination of a deficiency of $6,375.19 in income tax for 1926. The issue is whether a loss was sustained in 1926 on an investment of stock of a dissolved corporation.
FINDINGS OF FACT.
Prior to 1920 the petitioner acquired at a cost of $68,200, 682 shares of preferred stock of the Jamestown Portland Cement Company, a Virginia corporation organized in 1909 to engage in the business of manufacturing Portland cement*1863 at Yorktown, Va.
The corporation was unable to raise sufficient capital to start active operations and on June 8, 1920, the corporation's stockholders voted to dissolve and wind up its affairs. The petitioner and four other directors of the corporation were elected trustees to liquidate its affairs. At that time the assets of the corporation consisted of certain tracts of land situated at or near Yorktown, Va. A certificate of dissolution of the corporation was issued on August 7, 1920, by the State Corporation Commission of Virginia.
The liquidating trustees were unable to settle up the corporation's affairs within the three-year period allowed by section 3810 of the Code of Virginia. On April 1, 1924, on application of one of the corporation's stockholders, the Circuit Court for the County of York, Virginia, entered an order continuing the three surviving liquidating trustees as such "for a period of two years or as long as the Court shall think necessary for the purpose aforesaid" with "full power in the name of the Corporation, to sell and convey by deed or otherwise, all the property and assets thereof, both real and *537 personal, and on such terms as in their*1864 judgment may be deemed advisable, and to do any and all acts which might be done by said Corporation, if in being, that may be necessary for the final settlement of the unfinished business of the Corporation, and the powers of said Howard Ferris, John F. Braun and H. N. Smith, as Trustees and Directors in liquidating the business, and winding up and fully closing out all the effects of said Corporation by sale, given them by the stockholders and by law, be continued until the objects have been fully accomplished, by a sale of the corporate effects, the payment of expenses, liens, debts, taxes, and a distribution of the balance of the proceeds to the stockholders as their respective interest may appear." On October 28, 1926, the same court extended the time allowed for liquidation for such period as might be necessary to fully and finally complete all matters for which the liquidating trustees were appointed, with directions that the trustees report their proceedings to the court.
By April 19, 1924, the only asset remaining in the possession of the liquidating trustees consisted of two tracts of land, comprising about 167 acres. On that date they sold such land to the Yorktown Hotel*1865 Corporation, A Virginia corporation organized in 1923 for the purpose of constructing a resort hotel on the land purchased, for $191,625. It was understood that the terms of the sale would be cash. A deed for the property was executed by the liquidating trustees and delivered to the purchaser on April 19, 1924. The deed was recorded July 31, 1924.
Promptly upon the sale of this last asset, the liquidating trustees determined that when all collections had been made and all creditors paid, including the payment of a $25,000 fee to themselves as compensation for services rendered the corporation, there would be available for distribution to the corporation's stockholders a sum equal to 22 per cent of the par value of their stock.
The Yorktowm Hotel Corporation was unable to raise funds to pay for the land purchased and in 1925 requested the Jamestown Portland Cement Company to accept stock in the purchasing corporation in payment thereof. All of the Jamestown Company's creditors and a majority of its stockholders agreed to, and did, accept such stock in payment of their claims. In November, 1925, petitioner delivered his 682 shares of stock of the Jamestown Portland Cement*1866 Company to the liquidating trustees, who, after canceling it, delivered to him 185 shares each of preferred and common stock of the Yorktown Hotel Corporation, as a final liquidating dividend. The stock had been accepted by the Jamestown Portland Cement Company at the price of $80 per share for the preferred stock and $1 per share for the common stock. At those prices the *538 liquidating dividend was equal to about 22 per cent of the par value of the stock of the Jamestown Portland Cement Company.
The report of the activities of the liquidating trustees of the Jamestown Portland Cement Company was submitted to and approved by the Circuit Court of York County, Virginia, October 29, 1926.
OPINION.
ARUNDELL: The respondent is contending, among other things, that the loss, if any, was sustained in or prior to 1925, and since under the statute losses are deductible only within the taxable year in which sustained, his refusal to allow any loss deduction in 1926 on the stock transaction should be approved. We think the facts support his position.
In April, 1924, the liquidating trustees, of whom petitioner was one, sold the last asset of the corporation and executed*1867 and delivered a deed therefor, which instrument was within three months placed on record by the grantee. Thereafter in 1924 the trustees determined that when the sales price had been paid and settlement made with creditors, including a fee to the trustees of $25,000, there would be available for distribution to stockholders as a liquidating dividend a sum equal to 22 per cent of the par value of their stock. Due to the inability of the Yorktown Hotel Corporation to raise the money, cash could not be paid for the land and the proposition of accepting its stock in lieu thereof was suggested to the trustees. All of the corporation's creditors and most of its stockholders, including petitioner, agreed to the plan, and the deal was completed on that basis. On the surrender in November, 1925, of his stock of the JamestownPortland Cement Company, petitioner received as a liquidating dividend his proportionate share of the stock received from the Yorktown Hotel Corporation for the land. This distribution of assets closely approximated the estimate made by the trustees in 1924.
While conceding that there had been an actual and complete distribution in liquidation in 1925, petitioner*1868 contends all this was only tentative until the court had approved the sale of the property, including the acceptance of stock of the purchasing company in payment thereof, the fee fixed as compensation to the trustees, and the method of liquidation.
The statutes of Virginia contain provisions giving directors full power to settle the affairs of dissolved corporations as trustees and divide any money or other property left in their hands among the stockholders within three years after dissolution. Sections 3810 and 3812. Section 3810 also provides that in case the affairs of a corporation are not wound up by the trustees within three years, *539 they shall be settled in the manner provided by section 3813. This section provides that on application of any creditor or stockholder of a dissolved corporation, any court having equitable jurisdiction in the principal place of business of the corporation may continue the directors, as trustees, or appoint a receiver or receivers to take charge of the estate, with power to prosecute and defend suits and "to do all other acts which might be done by such corporations, if in being, that may be necessary for the final settlement of*1869 the unfinished business of the corporation," and that, "The court shall have jurisdiction of such application and of all questions arising in the proceedings thereon, and may make such orders and decrees and issue such injunctions therein as justice and equity shall require." Section 3814 provides that where the trustees are continued or a receiver is appointed by such court under section 3813, if there by any balance in their hands after paying all allowances, expense, costs and debts, they shall distributed the funds among the corporation's stockholders as their respective interests may appear.
On application of one of the corporation's stockholders, the Circuit Court of York County on April 1, 1924, entered an order continuing the surviving trustees for a period of at least two years with full power, among other things, to sell and convey by deed or otherwise all the corporation's property "on such terms as in their judgment may be deemed advisable," and after paying all debts to distribute any balance among the stockholders entitled thereto.
There is nothing in the State statute or the court's order making the sale in any way subject to the approval of the court. And it*1870 appears that such was the understanding of the trustees, for they conveyed the property, accepted stock of the buyer in lieu of cash, and made a final distribution to the stockholders without first obtaining the consent of the court. The fee to the trustees had been agreed on in 1924 and was never in dispute, and as far as this particular petitioner is concerned he was one of the trustees and was a party to and beneficiary of the fee arrangement.
Courts of equity will not interfere with the settlement of the affairs of dissolved corporations by trustees acting under State statutes prescribing their duties and powers, except upon a showing that the trustees are incompetent, unfaithful, or mismanaging the property to the injury of the complainant, or that there is dissension among the trustees. ; ; ; ; ; ; *1871 ; ; Fletcher Cyclopedia Corporations § 5644.
It is not being contended, and it does not appear from any of the evidence before us, that during 1925 or at any time prior thereto, *540 there existed conditions which the court would have recognized to the extent of denying to the trustees the exclusive right they had under the statute and the court's order to fully wind up the corporation's affairs. So far as the record discloses, the trustees were liquidating the affairs of the corporation in a manner entirely satisfactory to all parties in interest. It was not until October 28, 1926, when the court granted the trustees further time within which to close up the business, that the trustees were directed by the court to render a final report of their proceedings. This was done, and the next day the court confirmed the report, which included the sum of $25,000 to be paid the trustees as compensation for their services. Trustees liquidating dissolved corporations are entitled to a reasonable fee for their services. *1872 ; ; . This claim of the trustees, like demands of other creditors, does not appear to ever have been in controversy. The fee was fixed in 1924, and the petitioner was then or not later than 1925, in a position to determine the amount he would receive on his stock investment.
We think the facts justify respondent's action in refusint to allow the alleged loss as a deduction in 1926, and so hold. ; .
The parties have filed a stipulation to the effect that if the loss be held to have been sustained in 1926, then petitioner's gross income should be increased by an amount equal to the fair market value of the stock in the Yorktown Hotel Corporation received by petitioner as compensation for his services as a liquidating trustee. In view of the conclusion reached by us, this stipulation plays no part in the determination of the deficiency. Nor is it necessary in our view of the matter to discuss the question*1873 of whether or not the transaction between the Jamestown Portland Cement Company and the Yorktown Hotel Corporation constituted a reorganization within the meaning of the revenue act.