DocketNumber： Docket Nos. 719-95, 1344-95.
Judges： VASQUEZ
Filed Date： 2/13/1997
Status： Non-Precedential
Modified Date： 4/18/2021
1997 Tax Ct. Memo LEXIS 77">*77 Decision will be entered under Rule 155 in docket No. 719-95.
Decision will be entered for petitioner in docket No. 1344-95.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ,
| Additions to Tax | ||
| Petitioner | Deficiency | Sec. 6662(a) |
| Dennis A. & Tai K. Praegitzer $ 33,425 | $ 6,685 | |
| Kathleen M. Dawes | 37,293 | 7,458 |
1997 Tax Ct. Memo LEXIS 77">*79 All section references are to the Internal Revenue Code in effect for the year in issue. All Rule references are to the Tax Court Rules of Practice and Procedure.
Petitioner Praegitzer and petitioner Dawes are former spouses. Prior to and during their marriage, Mr. Praegitzer and Ms. Dawes, along with Ms. Dawes' brother, owned a corporation (Ameritech). Incident to Mr. Praegitzer's and Ms. Dawes' divorce, Ameritech spun off one of its businesses (the 303 products business) to petitioner Praegitzer. This business became petitioner Praegitzer's wholly owned corporation (303 Products, Inc., hereinafter 303 Products). Respondent contends that petitioner Praegitzer received dividend income from 303 Products when it distributed cash to, and forgave a debt owed it by, petitioner Praegitzer.
In 1976, Kerry Dawes, the brother of petitioner Dawes, and petitioner Praegitzer began an aircraft propeller repair and maintenance business (propeller business) as a partnership in Redding, California. Kathleen Dawes began working in the propeller business within 1 year of its inception.
Kerry Dawes and petitioner Praegitzer subsequently formed Ameritech Industries, Inc. (Ameritech), a California corporation, on October 1, 1982, under its original name of American Propeller Service, Inc. Kerry Dawes and petitioner Praegitzer each initially contributed $ 5,000 to Ameritech, and each received 5,000 shares of Ameritech common stock. Petitioner Praegitzer was president and treasurer of Ameritech, Kerry Dawes was vice president and secretary, and petitioner Dawes was controller from 1982 until October 3, 1989.
Kerry Dawes and petitioner Praegitzer transferred the propeller business to Ameritech in 1982. Concurrently, Ameritech developed and began marketing and selling1997 Tax Ct. Memo LEXIS 77">*82 a line of chemicals for the protective coating of equipment, including a product known as 303 (the 303 products business).
Petitioner Praegitzer and petitioner Dawes were married in 1984, and they permanently separated on or about July 6, 1987. Following the separation, petitioner Praegitzer, petitioner Dawes, and Kerry Dawes could no longer agree on how to operate Ameritech.
On July 29, 1987, petitioner Praegitzer filed an action for the dissolution of his marriage to petitioner Dawes. Petitioner Dawes filed a cross-complaint in the action. In the action, petitioner Dawes contended that, by virtue of an implied agreement between the parties, she owned one-half of the 5,000 shares of Ameritech held in petitioner Praegitzer's name. The trial of the marital dissolution action took place October 11-13, 1988. A judgment of dissolution (the judgment) was entered on June 9, 1989. The judgment ordered the division of certain community property and other jointly owned property, but did not include the Ameritech stock. The judgment provided, inter alia, that in order to equalize the division of community liabilities and property set forth in the judgment, petitioner Praegitzer was to pay1997 Tax Ct. Memo LEXIS 77">*83 petitioner Dawes the sum of $ 30,683 either in the form of a 3-year promissory note in the amount of $ 36,097.65 or by transferring 403 shares of Ameritech stock to petitioner Dawes at a stipulated value of $ 76 per share. The judgment made no other mention of the Ameritech stock. The judgment did not purport to resolve any other community property issues with regard to stock held in Ameritech.
Also on June 9, 1989, a judgment was entered on petitioner Dawes' first amended cross-complaint, ordering that petitioner Praegitzer and petitioner Dawes were each owners of 2,500 shares of the 5,000 shares of Ameritech stock issued in the name of petitioner Praegitzer and further ordering petitioner Praegitzer to transfer 2,500 of his shares to petitioner Dawes. Petitioner Praegitzer appealed this judgment.
An Ameritech shareholders' meeting was held on October 3, 1989. Kerry Dawes, petitioner Praegitzer, and petitioner Dawes were present at the meeting. Also present at the meeting were Lee Lopez, counsel for petitioner Dawes, Steven Small, counsel for petitioner Praegitzer, and Richard Bates, counsel for Ameritech. At the meeting, petitioner Praegitzer, as corporate president, refused to1997 Tax Ct. Memo LEXIS 77">*84 sign newly issued stock certificates to divide the stock between himself and petitioner Dawes.
At the October 3, 1989, meeting, based on an opinion by Mr. Bates, petitioner Dawes was allowed to vote 2,500 shares of the 5,000 shares held in petitioner Praegitzer's name. By a vote of 7,500 in favor to 2,500 opposed, the shareholders amended the corporate by-laws to provide for three directors. Immediately following the amendment, petitioner Dawes was elected to the board of directors by a vote of 7,500 shares in favor and 2,500 shares opposed.
An Ameritech directors' meeting was also held on October 3, 1989. Kerry Dawes, petitioner Praegitzer, and petitioner Dawes were present as directors. Also present were Mr. Lopez, Mr. Small, and Mr. Bates. By a vote of 2 to 1, Kerry Dawes was elected president and treasurer, and petitioner Dawes was elected vice president and secretary.
In November 1989, settlement negotiations occurred between counsel for petitioner Praegitzer and counsel for petitioner Dawes. Under the circumstances, a 25-percent minority interest was of diminished value to petitioner Praegitzer as it offered no control of Ameritech; the negotiations therefore were designed1997 Tax Ct. Memo LEXIS 77">*85 to restructure the judgment so that either petitioner Praegitzer or petitioner Dawes and Kerry Dawes would obtain 100-percent ownership of Ameritech.
George Murphy represented petitioner Praegitzer during his divorce. Mr. Murphy's associate, Debora Dragland, represented petitioner Praegitzer during the negotiations with petitioner Dawes' counsel, Mr. Lopez. In a November 14, 1989, letter from Ms. Dragland to Mr. Lopez, petitioner Praegitzer offered petitioner Dawes $ 160,000 to settle his appeal of the divorce court's award to petitioner Dawes of 2,500 shares in Ameritech, contingent on his first obtaining Kerry Dawes' 5,000 shares. In a November 22, 1989, letter from Mr. Lopez' law firm to Ms. Dragland, petitioner Dawes rejected petitioner Praegitzer's offer and counter offered $ 160,000 for his 2,500 shares.
On December 1, 1989, petitioner Praegitzer filed an injunction (the injunction action) against Ameritech, Kerry Dawes, and petitioner Dawes to prevent petitioner Dawes from exercising her rights to the 2,500 shares of stock and also to prevent Ameritech from transferring the 2,500 shares to petitioner Dawes.
On December 12, 1989, a judicially supervised settlement conference1997 Tax Ct. Memo LEXIS 77">*86 on petitioner Praegitzer's appeal of the judgment was held before retired associate Justice Bertram D. Janes of the California Court of Appeal for the Third Appellate District. At the December 12, 1989, settlement conference, both parties were represented by counsel. Mr. Lopez represented petitioner Dawes, and Mr. Murphy and Ms. Dragland represented petitioner Praegitzer. After discussions between Mr. Lopez, Mr. Murphy, and Justice Janes, a memorandum of agreement (the 12/12 agreement) was typed at the urging of Justice Janes and was signed by Mr. Lopez and Mr. Murphy. The 12/12 agreement was not signed by petitioner Dawes or by petitioner Praegitzer. Justice Janes signed the 12/12 agreement approving it "as a judicial settlement." Justice Janes stated to the attorneys that if they encountered any problems, they were to come back to see him to resolve the matter.
The memorandum of agreement, dated December 12, 1989, provided as follows: This appeal is settled this date upon the following conditions: 1. The Respondent [petitioner Dawes] will pay in cash $ 103,000 to Appellant [petitioner Praegitzer]. 2. The Corporation will transfer rights to products known as "303" and1997 Tax Ct. Memo LEXIS 77">*87 "306" including inventory and equipment, the equipment determined as a forklift and a binding machine, to the extent inventory is less than $ 59,000, it will be made up by Respondent. 3. No royalties on products sold by Appellant after this date (ok Lopez; ? George). 4. A three and a half year covenant not to compete in the propellor shop business in Washington, Oregon, California and Nevada. 5. Kathy Dawes to forgive judgments and cancelled notes in the amount of $ 36,097.65 (method of forgiveness to be determined jointly by counsels' tax counsel.) 6. Corporation to forgive debt owed by Appellant in the amount of $ 21,000. 7. Corporation will assume, by novation if possible, SBA loan in the amount of $ 58,000 (if novation not possible, Kathy and Kerry Dawes will hold Appellant harmless by appropriate agreement.) 8. Appellant will transfer all shares of stock in the corporation to the corporation or Kerry Dawes. 9. The formal agreement to be structured to result in the least amount of tax liability legally possible for the Appellant; to the extent that the settlement agreement reached does result in tax liability to the Appellant, the agreement will be structured, 1997 Tax Ct. Memo LEXIS 77">*88 if possible, to the Respondent's tax benefit. For example, in the event the sums being paid would result in Appellant paying taxes on $ 60,000, then the Respondent would have the right to place in the agreement a covenant not to compete to that extent. 10. Appellant agrees to dismiss the Shasta County action in which an OSC is pending, and this appeal, when a final settlement agreement is executed; each side to pay its own costs and the remittitur to go down forthwith. 11. Corporation or Dawes to retain all rights pursuant to two assigned agreements dated November 12, 1980.
Mr. Schoneman proposed a structure involving payment of $ 103,000 by petitioner Dawes and transfer of Ameritech1997 Tax Ct. Memo LEXIS 77">*89 assets from Ameritech to petitioner Praegitzer, as outlined in a December 26, 1989, letter from Mr. Schoneman to Mr. Lopez. In early January 1990, Mr. Schweitzer informed Mr. Schoneman that he did not think petitioner Dawes had $ 103,000. They discussed how to get around that problem. Mr. Schweitzer suggested that Ameritech could pay the money. The idea of a tax-free reorganization came up during their conversation.
Mr. Schweitzer and Mr. Schoneman agreed upon a tax-free reorganization to distribute the 303 products business assets to a new corporation to be owned by petitioner Praegitzer. On January 10, 1990, Mr. Schoneman sent Mr. Schweitzer a letter stating that a tax-free reorganization, whereby petitioner Dawes and Kerry Dawes would operate the propeller business and petitioner Praegitzer the 303 products business, was acceptable to petitioner Praegitzer.
Ultimately, the parties signed two agreements on January 30, 1990: (1) The Marital Settlement Agreement (MSA), executed by petitioner Dawes and petitioner Praegitzer, and (2) the Agreement and Plan of Corporate Separation and Reorganization (the reorganization agreement). The MSA provided that "This Agreement controls over1997 Tax Ct. Memo LEXIS 77">*90 the Judgments dated June 9, 1989 and the Memorandum of Agreement dated December 11, 1989."
1997 Tax Ct. Memo LEXIS 77">*91 The reorganization agreement was executed by Ameritech, petitioner Praegitzer, petitioner Dawes, and Kerry Dawes. The reorganization agreement provided that the 303 products business would be placed in a new corporation to be owned solely by petitioner Praegitzer and that the propeller business would remain in Ameritech which would be owned solely by petitioner Dawes and Kerry Dawes. The reorganization agreement provided that Ameritech would cause the formation of a new subsidiary known as 303 Products, Inc. (303 Products), with an initial stock issue of 1,000 shares of common stock, to which Ameritech would transfer all of the assets of its 303 products business, in exchange for the 1,000 shares of 303 Products. The assets included, in part, $ 103,000 in cash and an obligation of petitioner Praegitzer toAmeritech in the approximate amount of $ 21,000 (the Praegitzer debt). The reorganization agreement provided that petitioner Praegitzer would transfer his 2,500 shares of Ameritech to Ameritech in exchange for the transfer by Ameritech to petitioner Praegitzer of 1,000 shares of 303 Products.
The parties intended that the transactions under the reorganization agreement would qualify1997 Tax Ct. Memo LEXIS 77">*92 as a tax-free reorganization. In the reorganization agreement, petitioner Praegitzer agreed to dismiss his appeal of the dissolution action and also to dismiss the injunction action.
Petitioner Praegitzer and petitioner Dawes agreed that the reorganization agreement depended, for its legal effect, upon the execution by petitioner Praegitzer and petitioner Dawes of the MSA entered into contemporaneously. The reorganization agreement contained an integration clause. Petitioner Praegitzer and petitioner Dawes agreed that the reorganization agreement was the entire agreement between them pertaining to the subject matter thereof and that it superseded all prior and contemporaneous agreements, except those contemplated thereunder or not inconsistent therewith.
A meeting of the board of directors of Ameritech was held on January 25, 1990. On January 30, 1990, Ameritech borrowed $ 103,000 from an unrelated party; petitioner Dawes and Kerry Dawes guaranteed Ameritech's promissory note. A meeting of the board of directors of Ameritech was held on January 30, 1990. Also present at the meeting were Mr. Lopez and Mr. Small. The board of directors unanimously approved the reorganization agreement1997 Tax Ct. Memo LEXIS 77">*93 and related documents. Kerry Dawes, corporate president, announced that a new corporation, 303 Products, had been formed on January 16, 1990. Kerry Dawes also announced that certain assets should be transferred to the new corporation to capitalize it. The directors voted unanimously to transfer the assets to 303 Products in consideration for 303 Products' issuing 1,000 shares of stock to Ameritech. The assets included $ 103,000 and the Praegitzer debt of $ 21,254. All of the directors, including petitioner Praegitzer, voted that it was in the best interests of Ameritech to acquire or redeem petitioner Praegitzer's 2,500 shares of Ameritech in exchange for the 1,000 shares of 303 Products owned by Ameritech. Further, it was resolved unanimously that the president and secretary of Ameritech were authorized to consummate the transaction as set forth in the reorganization agreement. The board of directors unanimously approved the reorganization and acquisition of petitioner Praegitzer's 2,500 shares.
A closing under the reorganization agreement was held on January 30, 1990. Ameritech conveyed the assets of the 303 products business to 303 Products by an assignment of assets dated January1997 Tax Ct. Memo LEXIS 77">*94 30, 1990, executed by Kerry Dawes as president of Ameritech and by delivery of Ameritech's check in the amount of $ 103,000 payable to 303 Products to petitioner Praegitzer. The assets transferred from Ameritech to 303 Products also included $ 59,000 worth of inventory and equipment. The total value of the assets transferred was approximately $ 183,000.
Petitioner Praegitzer transferred his remaining 2,500 shares of Ameritech to Ameritech, and Ameritech assigned its 1,000 shares of 303 Products to petitioner Praegitzer on January 30, 1990. Petitioner Praegitzer resigned as an officer and director of Ameritech on January 30, 1990. On that same day, petitioner Praegitzer, Kerry Dawes, and Ameritech executed a mutual release.
Petitioner Praegitzer was concerned when he received the $ 103,000 check payable to 303 Products. His accountant, Dave Scott, told petitioner Praegitzer that since he was the sole owner of 303 Products it would be alright for him to go ahead and cash the check. On February 2, 1990, petitioner Praegitzer went to the bank with the $ 103,000 check, converted it into a cashier's check payable to 303 Products, and then deposited the cashier's check into the corporate1997 Tax Ct. Memo LEXIS 77">*95 checking account of 303 Products. Also on February 2, 1990, petitioner Praegitzer caused 303 Products to issue him a check for $ 103,000 which he deposited into his personal checking account.
The $ 103,000 was recorded on the accounting books of 303 Products as received by the corporation. At the time that petitioner Dawes signed the MSA and the reorganization agreement, she did not know that petitioner Praegitzer would withdraw the $ 103,000 from 303 Products.
The Praegitzer debt was recorded in the accounting books and records of 303 Products as received on or about January 30, 1990. On the 303 Products financial statements for the year ended June 30, 1991, the Praegitzer debt was removed from the balance sheet of 303 Products by the corporation's C.P.A. on the ground that the Praegitzer debt should have been taken off the books of Ameritech as of December 12, 1989. At no time on or after January 30, 1990, did 303 Products exercise any rights to collect on any debt owed to it by petitioner Praegitzer.
OPINION
Although respondent's role in these two cases is that of a stakeholder, she nonetheless concedes that the steps of the reorganization, up to and including the exchange 1997 Tax Ct. Memo LEXIS 77">*96 of stock, were tax free under sections 355 and 368(a)(1)(D) and argues that petitioner Praegitzer received a dividend from 303 Products when it distributed cash to, and canceled indebtedness (a) GENERAL RULE.--No gain or loss shall be recognized on a transfer of property from an individual to * * * (1) a spouse, or (2) a former spouse, but only if the transfer is incident to a divorce. Q-9. May transfers of property to third parties on behalf of a spouse (or former spouse) qualify under A-9. Yes. There are three situations in which a transfer of property to a third party on behalf of a spouse (or former1997 Tax Ct. Memo LEXIS 77">*97 spouse) will qualify under
In support of his argument, petitioner Praegitzer relies on
Joann and John Arnes entered into an agreement to have Moriah redeem Joann's 50-percent interest for $ 450,000. Joann reported the gain from the redemption on her Federal income tax return. Subsequently, Joann filed a claim for refund, contending that the transfer of her stock to Moriah was made pursuant to a divorce instrument, and therefore she was not required to recognize any gain on the transfer of her stock in accordance with
The District Court concluded that the redemption was required by a divorce instrument, and that John had benefited from the transaction because it was part of the marital property settlement, which limited future community property claims by Joann. The court, applying Q&A 9, determined that, although Joann transferred her stock directly to Moriah, the transfer was made on behalf of John and should be treated as having been made to John. Accordingly, the transfer qualified for nonrecognition of gain pursuant1997 Tax Ct. Memo LEXIS 77">*99 to
The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court. The Court of Appeals observed that the transfer would be tax free to Joann pursuant to
Even if we assume, arguendo, that the stock for stock exchange was "on behalf of" petitioner Dawes, petitioner Praegitzer is not necessarily insulated from tax. Respondent is not seeking to tax petitioner Praegitzer on that exchange itself, which is tax free to him under section 355 regardless of the application of
The MSA and the reorganization agreement resolved any marital claims between petitioner Praegitzer and petitioner Dawes. The agreements provided for the resolution of petitioner Dawes' marital claims to petitioner Praegitzer's stock in Ameritech, and for the concurrent severance of petitioner Praegitzer's interest in that corporation, through a divisive reorganization, culminating in the stock for stock exchange that left petitioner Praegitzer with no ownership of Ameritech and as sole owner of 303 Products. When 303 Products distributed $ 103,000 of cash to petitioner Praegitzer and forgave his $ 21,000 debt, it was done at his own behest, as sole shareholder of that corporation. The agreements did not obligate him to do it, and moreover it was probably a matter of indifference to petitioner Dawes, and to Ameritech, whether he did it, his stock in Ameritech having been relinquished in the previous exchange.
Absent sham or agency principles, the corporations involved are considered separate taxable entities.
This situation is distinguishable from
To reflect the foregoing as well as concessions by the parties,
1. Tai K. Praegitzer is a party to this action solely because she filed a joint Federal income tax return with Dennis A. Praegitzer for the taxable year 1990. Any reference to petitioner Praegitzer herein is to Dennis A. Praegitzer.↩
2. Respondent further contends that this adjustment to adjusted gross income reduces the amount of medical deductions that Praegitzer was entitled to claim. This is a computational matter that will be addressed, if necessary, under Rule 155.↩
3. Respondent conceded that neither petitioner is liable for the accuracy-related penalty pursuant to sec. 6662(a). Respondent asserts the deficiencies against petitioners in the alternative. If we sustain respondent's determination as to petitioners Praegitzer, the issue as to petitioner Dawes would be moot.↩
4. There is no suggestion by any of the parties that petitioner Praegitzer did not have a dividend because 303 Products' earnings and profits were inadequate.↩
5. The parties stipulated that the reference to Dec. 11, 1989, was a typographical error that was intended to refer to the Dec. 12, 1989, agreement.↩
6. Cancellation of a shareholder's indebtedness owed to his corporation generally is treated as a distribution of property within the meaning of sec. 301.