Electrical Securities Corp. v. Commissioner of Int. Rev., 9.

• Decision Date: 08 November 1937
• Docket Number: No. 9.,9.
• Parties: ELECTRICAL SECURITIES CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
• Court: U.S. Court of Appeals — Second Circuit

92 F.2d 593 (1937)

ELECTRICAL SECURITIES CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.

No. 9.

Circuit Court of Appeals, Second Circuit.

November 8, 1937.

Simpson, Thacher & Bartlett, of New York City (Graham Sumner and Courtland Kelsey, both of New York City, of counsel), for petitioner.

James W. Morris, Asst. Atty. Gen., Sewall Key, Sp. Asst. to Atty. Gen., Charles A. Horsky, of Washington, D. C., Stephen M. Farrand, of Los Angeles, Cal., and Helen R. Carloss, of New York City, for respondent.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The question at issue is whether the taxpayer made a taxable gain in the year 1930 because of the transactions which we shall describe. Its business was to hold the securities of public utility companies, and it had acquired a number of shares of stock in the United Gas Improvement Company which on May 1, 1930, the United Corporation, another company whose business was also to hold the securities of utility companies, offered to take over for its own shares, share for share. This offer was open until May 12, 1930, at 3 P. M., and the petitioner and four others, similarly situated, decided to accept it; to do so they devised and carried out the following plan. On May 10, they organized a new company, called the Diselin Corporation, to which on May 12th they transferred their United Gas Improvement shares, and took all the Diselin shares in exchange. On the same day the Diselin Corporation transferred to the United Corporation the shares of the United Gas Improvement Company it had just received — its only property; — and at the request of the Diselin Corporation the United Corporation transferred an equal number of its own shares direct to the petitioner and the four others, and they received them in exchange for their Diselin shares, which they surrendered to the Diselin Corporation for cancellation. That company was formally dissolved on June 26, 1930, without ever doing anything more. It is admitted that it was organized and used as we have described, solely for the purpose of suspending the tax which would have been imposed if the United Gas Improvement shares had been transferred direct to the United Corporation. The petitioner's argument — unsuccessful before the Board — is that the transfer from the petitioner to the Diselin Corporation was exempt under section 112 (b) (5), Revenue Act of 1928, 26 U.S.C.A. § 112 (b) (5) and note because the transferrors — the petitioners and its fellows — were "immediately after the exchange * * * in control of the corporation." The transfer of the Diselin shares for the United Corporation shares was likewise exempt under section 112 (b) (3), 26 U.S.C. A. § 112 (b) (3) and note, because both companies were "parties to the reorganization," under section 112 (i) (1) (A), 26 U. S.C.A. § 112 (g) (1) (A) note, and the Diselin shares were exchanged solely for the United Corporation shares. We may assume arguendo that this argument is sound as to both steps, and that the tax should have been suspended, if the Diselin Corporation was within the meaning of section 112 at all.

Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, involved a somewhat similar ritualistic incantation which was there held to be a sham. We do not understand that by this was meant that the property did not pass into, and out of, the Averill Corporation, the new company there organized, precisely as in any other case. The transactions were not a sham in the sense that a contract made in jest is a sham, creating no obligations whatever. Here as well we do not doubt that the United Gas Improvement shares actually passed to and out of the Diselin Corporation, a lawfully created corporate person, capable like any other such, of receiving, holding and transferring any kind of property. But that company, however...