Fulman v. U.S.

• Decision Date: 19 November 1976
• Docket Number: No. 76-1165,76-1165
• Parties: 76-2 USTC P 9777 Arthur S. FULMAN et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 268

545 F.2d 268

76-2 USTC P 9777

Arthur S. FULMAN et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.

No. 76-1165.

United States Court of Appeals, First Circuit.

Argued Sept. 8, 1976.

Decided Nov. 19, 1976.

Daniel Levenson, Boston, Mass., with whom Jonathan J. Margolis, Mary Gallagher, and Lourie & Cutler, Boston, Mass., were on brief, for appellants.

Gary R. Allen, Atty., Tax Div., Dept. of Justice, Washington, D. C., with whom Scott P. Crampton, Asst. Atty. Gen., Washington, D. C., James N. Gabriel, U. S. Atty., Boston, Mass., Gilbert E. Andrews, Jr., and Alfred S. Lombardi, Attys., Tax Div., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, CLARK, ^* Associate Justice, U. S. Supreme Court (Ret.), and CAMPBELL, Circuit Judge.

COFFIN, Chief Judge.

The sole issue in this appeal is the validity of the Treasury regulation which provides that the amount of a personal holding company's deduction for a dividend in kind is the company's adjusted basis in the property. Appellants contend that this regulation is invalid because the only permissible interpretation of the relevant provisions of the Internal Revenue Code is that the amount of such a deduction must be the fair market value of the property that is distributed. The district court sustained the validity of the regulation. We affirm.

The tax on personal holding companies, 26 U.S.C. §§ 541-47 (hereinafter "26 U.S.C." will be omitted from all statutory citations), is one of several devices Congress has developed to prevent individuals from taking advantage of the fact that the maximum income tax rate is substantially lower for corporations than it is for individuals. To discourage individuals with substantial investment income from incorporating their "pocketbooks", thereby avoiding taxation of that income at the higher individual tax rates, the Congress imposed a penalty tax on the undistributed income of those corporations which it determines are probably operating for tax avoidance objectives. The Code defines a corporation as a "personal holding company" for a given tax year if 60 per cent or more of its stock is owned, actually or constructively, by five or fewer individuals and if 60 per cent or more of its adjusted gross income is "personal holding company income", which is defined in § 543 as primarily passive investment income. See § 542. The Code imposes a 70 per cent tax on the company's "undistributed personal holding company income", its taxable income with specified adjustments. See §§ 541, 545(a). One such adjustment to the corporation's taxable income is a deduction for dividends that are paid. The issue in this case concerns the proper method to value such dividends.

Appellants are the successors of the Pierce Investment Company (Company), a taxpayer which the Internal Revenue Service (IRS) found to be a personal holding company for the tax years 1959 through 1963 and for which the IRS proposed a personal holding company tax of $26,571.30. In an attempt to eliminate this tax, the Company declared a dividend in the amount of $32,535 and tried to satisfy its declaration by distributing stock which had a fair market value of that amount, but in which the Company had an adjusted basis of $18,725.11. ¹ The IRS subsequently disallowed the Company's claim for a deficiency dividend of $32,535 to the extent that the amount claimed exceeded the Company's adjusted basis in the property that was distributed. In taking this action, the IRS relied upon the Treasury Regulation on Income Tax, § 1.562-1(a), which provides as follows:

"If a dividend is paid in property (other than money) the amount of the dividends paid deduction with respect to such property shall be the adjusted basis of the property in the hands of the distributing corporation at the time of the distribution."

The Company paid the resulting deficiencies in full, and appellants instituted this action for a refund in district court, claiming that the regulation in question is invalid.

In considering appellants' attack on this regulation, we begin by observing that Treasury regulations are entitled to deference. "As 'contemporaneous constructions (of the Internal Revenue Code) by those charged with administration of' (it), the Regulations 'must be sustained unless unreasonable and plainly inconsistent with the revenue statutes,' and should not be overruled except for weighty reasons." Bingler v. Johnson, 394 U.S. 741, 749-50, 89 S.Ct. 1439, 1445, 22 L.Ed.2d 695 (1969) quoting from Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831 (1948). See also United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967). Although the one other circuit court of appeals that has considered this issue has concluded that the regulation is invalid, see H. Wetter Mfg. Co. v. United States, 458 F.2d 1033 (6th Cir. 1972), we are satisfied that the regulation is a reasonable interpretation of the revenue statutes and, as such, is valid.

We note at the outset that this regulation, which was adopted under the Internal Revenue Code of 1954, substantially reflects the rule which had been established by statute prior to 1954, but which had not been expressly reenacted in 1954. Section 27(d) of the Internal Revenue Code of 1939 expressly provided that the amount of a deduction for dividends paid in kind was either the corporation's adjusted basis in the property or the fair market value thereof, whichever was less. Here, the issue is whether Congress, by failing to include old § 27(d) in the 1954 revision of the Internal Revenue Code, intended both to preclude the Treasury Department from adopting a regulation which generally embodied the terms of the pre-1954 law, and to prescribe that it instead adopt a rule valuing the deduction for dividends paid in kind on a fair market value basis. We see no evidence that Congress intended such a result. Indeed, what evidence there is supports the validity of the regulation. Moreover, we think that the rule based upon old § 27(d) is entirely consistent with the broad objectives of the personal holding company tax, and that the contrary rule would both defeat the underlying policy of the act and produce results which would be difficult to justify rationally.

Although the 1954 Code, which has not been amended in any respect which is significant to this case, did not prescribe the method of valuing a dividends paid deduction, the legislative history of the 1954 Code indicates that Congress contemplated that the rule of old § 27(d) was to be carried over into the 1954 revision. The Senate Finance Committee Report on § 562(a) stated as follows:

"Subsection (a) provides that the term 'dividend' for purposes of this part shall include, except as otherwise provided in this section, only those dividends described in section 316 (relating to definition of dividends for purposes of corporate distributions). The requirements of sections 27(d), (e), (f), and (i) of existing law are contained in the definition of 'dividend' in section 312, and accordingly are not restated in section 562." (Emphasis supplied.) S.Rep.No.1622, 83d Cong., 2d Sess., 3 U.S.C.Cong. & Adm.News pp. 4621, 4965-66 (1954).

See also H.Rep.No.1337, 3 U.S.C.Cong. & Adm.News pp. 4017, 4320 (1954). Although the language of this report is ambiguous in several respects and may not support the government's claim that it indicates that § 312 is to govern such matters, ² this report certainly indicates that Congress did not contemplate the abrogation of the rule of old § 27(d).

And there is nothing in the Code which suggests that Congress in fact intended that the deduction for dividends paid in kind be based on the fair market value of the property. Indeed, to the extent that there is anything relevant in the Code, it appears to be consistent with the regulation that is under attack. Section 561, which defines the deduction, and §§ 562 and 316, which determine which distributions qualify for it, are silent ³ as to the valuation of the personal holding company's deduction. ⁴ The only provisions of the Code which offer any guidance on this question do not appear to be directly relevant, but they seem generally supportive of the validity of the regulation and in no way suggest that the rule embodied therein is inconsistent with the statutory scheme.

Section 312 is the only provision of the Code which, to our knowledge, deals specifically with the effect of a corporate distribution on the distributing corporation. It provides that a dividend that is paid in property will have the effect of decreasing a corporation's earnings and profits by the amount of the corporation's adjusted basis in the property. Although we understand that the payment of a dividend by an ordinary corporation does not give rise to a corporate deduction, and that this section, in its normal operation, only determines the tax effects of present and future corporate distributions on the corporation's shareholders, see Bittker & Eustice, Federal Income Taxation of Corporations and Shareholders P 7.24, we think this section strongly suggests that Congress believed that, as far as the distributing corporation is concerned, the amount of a dividend in kind is the corporation's basis in the property. Certainly § 312 rebuts any contention that, as to the distributing corporation, the "plain meaning" of the term "dividend" is that it is equal to the fair market value of any property that is distributed, but see H. Wetter Mfg. Co. v. United States, supra, ⁵ or that Congress clearly manifested an intention to abrogate the rule of old § 27(d). ⁶

The second provision of the Code which appellants rely upon is § 301, which defines the tax consequences of a corporate distribution on the recipient thereof. It provides "the amount distributed" to a recipient is the fair market value of the property received, in the case of a...