DocketNumber： Docket No. 34942.
Citation Numbers： 23 B.T.A. 858, 1931 BTA LEXIS 1813
Judges： Matthews
Filed Date： 6/24/1931
Status： Precedential
Modified Date： 11/20/2020
*1813 1. Upon evidence,
2.
*858 This is a proceeding for the redetermination of a deficiency in income taxes for the year 1924 in the amount of $1,512.50 and for the year 1925 in the amount of $9,258.08. The petitioner alleges, first, that the Commissioner erred in disallowing as a deduction in 1924 a claimed loss on stock of the American Fuel Oil & Transportation Company and allowing it as a deduction in 1923, and, second, that if the loss did not occur in 1924 the Commissioner erred in holding that the loss sustained by the petitioner was not a net loss within the meaning of section 204(a) of the Revenue Act of 1921, section 206(a) of the Revenue Act of 1924, and section 206(a) of the Revenue Act of 1926.
FINDINGS OF FACT.
The petitioner is an individual, *1814 a resident of Los Angeles, Calif.
From about the year 1900 the petitioner has been engaged in the buying and selling of real estate, including oil properties. About 1909 or 1910 he organized nine or ten small oil companies. His usual practice was to purchase property, organize the corporation and transfer the property to it for stock. At times he contributed cash to the companies. A number of these companies which the petitioner organized and in which he owned stock were merged in 1907 or 1908 into a new corporation, the Traders Oil Company. The petitioner received shares of stock in this corporation in exchange for his stock in the other companies. In 1918 the Traders Oil Corporation was organized to take over the assets of the Traders Oil Company and other corporations in which the petitioner also owned stock, and the petitioner received stock of the Traders Oil Corporation in exchange for his stock in these other companies.
After 1921 or 1922 the petitioner retired from any active management in the corporations which he had been instrumental in organizing, but retained his stockholdings therein. In 1923 he had other substantial investments from which he derived considerable*1815 income.
*859 In 1919 the American Fuel Oil & Transportation Company, hereinafter referred to as the American Company, was organized to take over the assets of the Traders Oil Corporation. The petitioner took no active part in the organization of the American Company. It had an authorized capital stock issue of $10,000,000 preferred and $20,000,000 common, of a par value of $10 each. The stockholders of the Traders Oil Corporation were allowed to exchange their stock for stock in the American Company or to sell the Traders Oil Corporation stock outright to the new company at $60 a share. It is not clear how many shares of stock of the Traders Oil Corporation the petitioner owned, but he received 15,000 shares of preferred stock of the American Company and a 25 per cent bonus in common stock, and 11,430 shares of common stock of the American Company in exchange for his stock in the Traders Oil Corporation. The fair market value of the Traders Oil Corporation preferred stock at that date was $60 a share. The fair market value of the preferred stock of the American Company was $10 a share, and of the common stock $2.50 a share. This stock was sold only in units of one*1816 share of preferred and one of common. The cost to the petitioner of the stock of the American Company and the basis to be used in determining gain or loss upon a later disposition thereof is $10 a share for the preferred and $2.50 a share for the common.
The operations of the American Company were never very successful. One of its main activities was the transportation of oil, for which it purchased ships from the Government and converted them into oil tankers. The ships, after being converted, were found to be defective and the company was unable to carry out its contracts for the delivery of oil. It did not pay any dividends after the early part of 1921. In 1920 the entire oil industry was suffering a depression, due to the fact that there was an oversupply of oil.
A receivership for the American Company was instituted in the latter part of 1922. The receivers continued to carry on the business for about a year as best they could. They were unable to get any new contracts. In 1923 the company was not making any profit. In the latter part of that year the stockholders were considering a plan of reorganization in order to settle the corporation's liabilities and preserve*1817 their interests in the corporation. A stockholders' committee and a bondholders' committee were organized.
On September 17, 1923, the stockholders' committee submitted a plan of reorganization. Under the terms of this plan preferred stockholders of the old company were permitted to subscribe for one share of new preferred stock for each share of preferred stock of the old company upon the payment of 50 cents a share, and common stockholders of this company were permitted to subscribe for one *860 share of new common stock for every ten shares of old upon the payment of 50 cents a share for the new. This report stated that the bondholders had agreed to accept for their bonds 33 1/3 per cent in cash and 66 2/3 per cent in stock. The committee also stated that it believed that if the company's property was sold at foreclosure it would not bring in more than was necessary to pay off the bonds outstanding. Under the plan submitted the stockholders not subscribing would lose all their interest in the company. Stockholders also had the right to subscribe for additional shares upon the payment of 50 cents a share. The petitioner did not subscribe for or receive any stock in*1818 the new corporation.
On January 3, 1924, the bondholders' committee purchased at a foreclosure sale properties of the American Company which had been placed as collateral for security on the bonds. The bondholders received preferred stock of the new company at par equal to 66 2/3 per cent of the face value of their bonds and accrued interest, and an amount of common stock taken at 50 cents a share, equal to the balance of the face value of their bonds. The old stockholders who subscribed for stock in the new corporation acquired such stock at 50 cents a share. None of the new stock was issued except for cash or for value received.
The petitioner during 1923 was not an officer or director of the American Company.
In 1923 the petitioner sold 5,000 shares of the preferred stock of the American Company and 5,000 shares of the common to C. A. Landgren for $1. Landgren was a member of both the stockholders' and the bondholders' committees.
The petitioner, in his return for 1923, claimed a deduction in the amount of $26,209.87 on account of the loss sustained upon the sale of his stock to Landgren.
On his return for 1924 the petitioner claimed a loss deduction in the amount*1819 of $45,000, representing the cost of his remaining stock in the corporation. He stated in his return that this stock was acquired in exchange for stock of the Traders Oil Company and that in January, 1924, all the assets of the American Company were sold to satisfy creditors holding bonds, and consequently the stock of the company had no further value.
The deficiency letter for 1923, 1924 and 1925 showed no tax due for 1923, a deficiency in the amount of $1,512.50 for 1924, and a deficiency in the amount of $9,258.08 for 1925.
The deficiency for 1924 arose in part from the respondent's disallowance of the claimed loss on the stock of the American Company upon the ground that, since the petitioner did not pay the required assessment and did not participate in the reorganization, he forfeited *861 any right to share in the reorganization and that any loss upon the stock occurred in 1923 and not in 1924. The respondent refused to allow such loss to be deducted in 1924 as a net loss for the reason that the petitioner was not a dealer in securities.
OPINION.
MATTHEWS: In this proceeding the petitioner contends that the loss resulting from the worthlessness of his stock*1820 in the American Company occurred in 1924 and not in 1923 as determined by the respondent, and, further, that if the loss did occur in 1923 it constituted a "net loss" and should be deducted from his income for 1924.
It appears from the evidence that in 1923 the assets of the American Company were not more than sufficient to pay the bondholders and that under the plan of reorganization the only interest which stockholders of the old company had in the new corporation by virtue of their stock ownership in the old was the number of the new shares that they had the right to subscribe to. The petitioner did not subscribe for any stock in the new corporation. In 1923 he sold a part of his stock for $1. His testimony in regard to this transaction was to the effect that he desired to take part of the loss in 1923 and part in 1924, and for that reason he did not sell all of his stock in 1923. However, in a letter attached to his return he stated that he considered the stock worthless at the time of the sale in 1923 to Landgren. This statement of the petitioner was based upon information conveyed to him by Landgren who was a member of both the bondholders' and the stockholders' committees. *1821 We believe that these facts establish that the petitioner's stock in the American Company became worthless in 1923 and that any loss resulting therefrom is deductible in that year.
We must, therefore, consider whether such loss is a net loss within the meaning of section 204(a), Revenue Act of 1921. That section provides:
That as used in this section the term "net loss" means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business); * * *
From 1900 to 1918 the petitioner had been engaged in buying and selling real estate, including oil properties, and in connection therewith organizing corporations to which he transferred the properties for stock. It is not clear exactly what petitioner was doing in 1923 and 1924. There is some evidence that he had retired from any active business in those years. The petitioner in his return described his business as "oil operator and investments," and he and a former *862 associate described him as a "promotor." The fact*1822 that he owned stock in the American Company, which was engaged in the oil business, does not establish that he was engaged in a trade or business. He was not an officer or director in that corporation, but merely a stockholder. A somewhat similar situation was involved in the case of . In that case we said:
* * * Petitioner's business is thus described by his secretary, "He was a capitalist engaged in different enterprises and also president of the Philadelphia Rubber Company." Aside from this characterization, the evidence is only that he owned stock in several corporations, in some of which he exercised his power as controlling stockholder to dictate the personnel employed. To call petitioner a "capitalist" is not to say that he "operates a trade or business regularly carried on."
The loss resulting from the stock of the American Company becoming worthless in 1923 is not a loss resulting from the "operation of a trade or business regularly carried on" and hence is not deductible from net income of a succeeding year as a net loss.