Duncan v. Comm'r of Internal Revenue
| Decision Date | 29 September 1947 |
| Docket Number | Docket Nos. 10951,10952,10955.,10954,10953 |
| Citation | 9 T.C. 468 |
| Parties | ALEXANDER E. DUNCAN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.TRUST OF FLORA ROSS DUNCAN ‘WILL‘, A. E. DUNCAN AND SAFE DEPOSIT & TRUST COMPANY OF BALTIMORE, TRUSTEES, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.FLORA ROSS DUNCAN TRUST, ELIZABETH DUNCAN YAGGY AND SAFE DEPOSIT & TRUST COMPANY OF BALTIMORE, TRUSTEES, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.ELIZABETH DUNCAN YAGGY TRUST, A. E. DUNCAN AND SAFE DEPOSIT & TRUST COMPANY OF BALTIMORE, TRUSTEES, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.ELIZABETH DUNCAN YAGGY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
RECOGNITION OF GAIN OR LOSS— SECTION 112(b)(5).— The surrender of judgment claims to a debtor corporation in consideration of the issuance of the creditors of stock of the debtor which gave the old creditors control is a transfer in exchange within section 112(b)(5). R. Dorsey Watkins, Esq., for the petitioners.
Paul E. Waring, Esq., for the respondent.
The Commissioner determined deficiencies in income tax for the calendar year 1941, as follows:
+--------------------------------------------------------+
¦Name ¦Docket No.¦Deficiency ¦
+---------------------------------+----------+-----------¦
¦Alexander E. Duncan ¦10951 ¦$110,071.40¦
+---------------------------------+----------+-----------¦
¦Trust of Flora Ross Duncan “Will”¦10952 ¦5,189.05 ¦
+---------------------------------+----------+-----------¦
¦Flora Ross Duncan Trust ¦10953 ¦9,205.70 ¦
+---------------------------------+----------+-----------¦
¦Elizabeth Duncan Yaggy Trust ¦10954 ¦9,461.53 ¦
+---------------------------------+----------+-----------¦
¦Elizabeth Duncan Yaggy ¦10955 ¦11,442.99 ¦
+--------------------------------------------------------+
The petitioners contend that a transaction in which a corporation issued its common stock to them in settlement of $270,000 of judgment claims which the petitioners held against the corporation was within the provisions of section 112(b)(5) of the Internal Revenue Code, so that no gain or loss to the petitioners can be recognized. They make several alternative contentions. The facts relating to the possible application of section 112(b)(5) have been stipulated, and the stipulation is adopted as the findings of fact.
The petitioners filed their returns for the calendar year 1941 with the collector of internal revenue for the district of Maryland.
The May Oil Burner Corporation (hereinafter called the corporation) was organized in 1926 under the laws of Maryland. The petitioners were the owners, after December 28, 1938, of promissory notes of the corporation in the principal amount of $250,000. A. E. Duncan loaned the corporation $20,000 on December 13, 1940, and the corporation issued to him its promissory note for the same amount.
The corporation was unable to pay the principal on the notes when it became due. Unsuccessful efforts were made to recapitalize the corporation. An effort was made to put the corporation through bankruptcy, but the petition was dismissed because no arrangement was proposed by the debtors and accepted by the creditors.
The petitioners thereafter obtained judgment on their notes in the total amount of $270,000.
The noteholders, the holders of more than two-thirds of the outstanding stock of the corporation, and the corporation, entered into an arbitration agreement on April 10, 1941. The petitioners, or some of them, were minority stockholders of the corporation at that time. The arbitrators thoroughly investigated the situation and made a decision, as a result of which the corporation amended its charter, reducing the par value of its stock from $10 to $1 and authorizing the issuance of additional shares of stock. There was but one class of stock. 270,000 shares of stock were issued to the petitioners ‘in settlement of Two hundred and seventy thousand dollars ($270,000) principal amount of judgment claims recovered against the Corporation in the Superior Court of Baltimore City on March 26, 1941.‘ The shares were issued to the petitioners in direct proportion to the amount of notes owned by each petitioner. There was no change in the other stockholders of the corporation at that time.
The petitioners owned 81.84 per cent of the stock of the corporation immediately after the issuance of the 270,000 shares to them.
The $270,000 notes and the judgments thereon were never worthless, were never determined to be worthless, in whole or in part, and no deduction with respect thereto was ever claimed by any petitioner on any income tax return.
The Commissioner, in determining the deficiencies, held ‘that the receipt of stock in May Oil Corporation in satisfaction of your judgment against the corporation gave rise to an ordinary taxable gain to the extent that the value of the stock received exceeded the cost basis of the judgment.‘ He added the amount of that difference to the income of each petitioner.
The petitioners contend that the transaction which took place June 19, 1941, whereby they surrendered their judgment claims to the debtor in consideration of the issuance to them of stock of the debtor, was a transaction coming within the provisions of section 112(b)(5) of the Internal Revenue Code. 1 Section 112(h) defines control as the ownership of at least 80 per cent of the voting stock and all other stock. The notes and the judgments obtained thereon constituted property in the hands of the petitioners. The only consideration which the petitioners received in the transaction was stock of the corporation, and immediately thereafter they were in control of the corporation. The amount of the stock received by each was exactly in proportion to the interest of each in the property prior to the transaction. The old stockholders did not transfer any property as stockholders but, if it is material, the relationship between their retained interests and those of the noteholders was the result of long negotiation and was in proportion to the value of the existing interests of each. The only remaining difference between the parties on this point is whether the petitioners transferred their property to the corporation in exchange for the stock which they received.
The respondent contends that there was no transfer of property in exchange for stock. He cites cases in which it has been held that no ‘sale or exchange‘ takes place when a creditor and a debtor settle the debt between them by the debtor paying the creditor in cash, whether he pays the full amount due or some lesser amount. Perhaps the leading case of that kind is Hale v. Helvering, 85 Fed.(2d) 819, affirming 32 B.T.A. 356. The question in that case was whether the compromise with the maker of promissory notes for less cash than their face value constituted a ‘sale or exchange‘ of capital assets entitling the creditor to a capital loss. The court held that there was no sale or exchange, since ‘There was no acquisition of property by the debtor, no transfer of property to him.‘ The court pointed out that ‘property in the notes as capital assets was extinguished, not sold,‘ and it held that the satisfaction of an obligation by partial payment was, as in the case of full payment, not a ‘sale or exchange‘ entitling the creditor to a capital loss. See also John H. Watson, Jr., 27 B.T.A. 463; Commissioner v. Speckles, 120 Fed.(2d) 517; Bingham v. Commissioner, 105 Fed.(2d) 971. Those cases have been distinguished in others in which section 112(b)(5) has been applied. Miller & Paine, 42 B.T.A. 586; Reed v. Commissioner, 129 Fed. (2d) 908, affirming 45 B.T.A. 1130.
Section 112(b)(5) applies where holders of obligations (including notes) of a corporation surrender those obligations in exchange for stock of a new corporation organized to take over and continue the business of the original obligor. Miller & Paine, supra; Reed v. Commissioner, supra; Rockford Brock & Tile Co., 31 B.T.A. 537; Hartford-Empire Co. v. Commissioner, 137 Fed.(2d) 540, affirming 43 B.T.A. 113. Cf. George P. Skouras, 45 B.T.A. 1024; Helvering v. Cement Investors, Inc., 316 U.S. 527. It was held in some, or all, of those cases that the surrender of the obligations for cancellation was a transfer in exchange within section 112(b)(5). Yet, the surrender of such obligations for cancellation does not increase the assets of the new corporation but, as in the present case, merely frees those assets of certain liabilities. The petitioners and the other parties to the arbitration agreement in the present case have accomplished exactly the same thing as was accomplished by the parties involved in the cited cases, except that here the parties used the old corporation, while in those cases the assets of the old corporation were transferred to a new corporation. It was pointed out in the cases cited that the creditors did not receive payment of their debts, but exchanged those...
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