DocketNumber： Docket No. 43175.
Judges： Matthews
Filed Date： 2/29/1932
Status： Precedential
Modified Date： 11/2/2024
25 B.T.A. 673">*673 This is a proceeding for the redetermination of a deficiency in income tax for the year 1926 in the sum of $997.23. The sole question presented is whether petitioner realized a taxable profit of $8,614 from the sale of its banking business to the Bank of Sumas.
FINDINGS OF FACT.
Petitioner is a corporation with its principal office at Bellingham, Washington, and formerly conducted a banking business at Sumas, Washington.
In 1926 Ralph P. Loomis, in furtherance of a plan to reduce the capital and surplus of petitioner, obtained an option to purchase from F. S. Garrison and his brother's estate not less than 390 of the total of 400 shares of the capital stock of petitioner at $150 per share. The State Banking Department disapproved the reduction of the capital of the bank and it was decided to incorporate a new bank, with a smaller capital. The above mentioned option was exercised by Loomis, with the financial assistance of the Marine National Bank. All the stock of the petitioner was thereafter owned by Loomis and Albert1932 BTA LEXIS 1479">*1480 Brygger, who was vice president of the Marine National Bank.
The first paragraph of an agreement between R. P. Loomis, C. E. Gasches and George I. Dunlap, dated July 6, 1926, reads as follows:
Based on a contract that R. P. Loomis has with F. S. Garrison to buy 390 shares of stock of the Garrison Bros. State Bank of Sumas, and other property, 25 B.T.A. 673">*674 and the representation of George I. Dunlap that he and G. O. Moen and H. T. D'Arc and Francis P. Tillinghast are ready to join R. P. Loomis in organizing a new banking corporation to take over the Sumas banking business, the following memorandum of agreement is made: R. P. Loomis represents that he has the approval of the State Bank Supervisor to organize a new bank with $25,000 capital and $5,000 paid-in undivided profits, to succeed the Garrison Bros. State Bank, to take over the bank building and fixtures at $8,000, and attaches hereto a list of the bonds as carried on May 28, 1926, and a statement of the bank as of May 28th, showing capital of new bank. $20,000 withdrawn from bonds account as hereinafter provided, real estate withdrawn except bank building, and building and fixtures revalued. R. P. Loomis also has a contract1932 BTA LEXIS 1479">*1481 with F. S. Garrison to run the bank in the usual way from May 28 to date of taking over this business, and Dunlap and associates are to have the benefit of that guarantee. Dunlap and associates and R. P. Loomis agree to pay for stock in the new bank at the rate of $160.00 per share, the $10,000 surplus created in that way to be paid to the present bank for good will, after Loomis has acquired it and turned over the business.
In August, 1926, a new corporation known as the Bank of Sumas was organized, with an authorized capital stock of $25,000 and a paid in surplus of $5,000, to take over the petitioner's banking business. Two hundred and fifty shares of stock of the Bank of Sumas were sold to George I. Dunlap, H. T. D'Arc, G. O. Moen and Francis P. Tillinghast, and several small subscribers, at $160 a share, making a total of $40,000. Of this amount $30,000 was deposited with the Union Trust Company, to set up the capital and surplus of the Bank of Sumas, and the balance of $10,000 was turned over to Loomis and Brygger. This $10,000 was the $10,000 referred to in the agreement quoted above as the amount to be paid for the good will of the petitioner.
Certain assets of the1932 BTA LEXIS 1479">*1482 petitioner were transferred to the Bank of Sumas on August 5, 1926, and the petitioner's deposit liabilities were assumed by the Bank of Sumas. The bank was never closed. Immediately following the transfer of the assets to the Bank of Sumas the new corporation began the operation of the bank in the same building, with the same equipment, books and everything else which had been previously used by the petitioner.
The Bank of Sumas did not take over all the assets of petitioner. Stocks and bonds amounting to $19,932.20 were retained, as was certain real estate set up on the books at a value of $1,000. There was also excluded cash totaling $35,815.88.
Petitioner transferred the banking house to the Bank of Sumas at a value of $6,000 and furniture and fixtures at $2,000, a total of $8,000. The depreciated costs of these properties at the date of transfer were $7,936 and $1,450, respectively, a total of $9,386. The difference of $1,386 represents the petitioner's loss on these two assets. The respondent has subtracted this sum of $1,386 from the sum of $10,000, which was paid to Loomis and Brygger under the 25 B.T.A. 673">*675 circumstances above set out, and has treated the balance1932 BTA LEXIS 1479">*1483 of $8,614 as the taxable profit of the petitioner upon the sale of its banking business to the Bank of Sumas.
OPINION.
MATTHEWS: Petitioner operated a bank at Sumas, Washington. Its banking business was taken over and continued by a new corporation known as the Bank of Sumas. The record indicates that enough assets of petitioner were transferred to the Bank of Sumas to equal the deposit liabilities which it assumed, but we do not know the terms of the agreement whereby these assets were acquired by the Bank of Sumas.
The memorandum of agreement between certain individuals interested in organizing the new corporation, which is quoted in part in our findings of fact, refers to a $10,000 surplus to be paid to the petitioner for good will. Petitioner contends that the agreement was not carried out in accordance with this memorandum in that the $10,000 which grew out of the sale of the capital stock of the Bank of Sumas at $160 per share was paid over to Loomis and Brygger, who owned all the stock of the petitioner, and was not received by the petitioner. It has been shown that Loomis was instrumental in organizing the Bank of Sumas and that Brygger, as an officer of the Marine1932 BTA LEXIS 1479">*1484 National Bank, rendered financial assistance. Petitioner's position is that the profit arising from the transaction was a promotion profit earned by Loomis, the active promotor, and the Marine National Bank, which aided in the financing thereof, and that the $10,000 in question did not represent income to the petitioner corporation. We do not find in the record facts sufficient to support this position. The Bank of Sumas continued, without interruption, the operation of the business which had been conducted by the petitioner. The only evidence contained in the record with respect to the consideration for the sale of the petitioner's banking business to the Bank of Sumas is the statement in the revenue agent's report that the consideration was $40,000. The respondent has determined that the petitioner derived a profit of $10,000 less $1,386, which latter amount represents the loss to the petitioner resulting from the sale of its banking house and furniture and fixtures at a price lower than the depreciated costs of these properties.
The determination of the respondent is