Hollywood Baseball Association v. CIR

• Decision Date: 16 February 1970
• Docket Number: No. 23056.,23056.
• Citation: 423 F.2d 494
• Parties: HOLLYWOOD BASEBALL ASSOCIATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

423 F.2d 494 (1970)

HOLLYWOOD BASEBALL ASSOCIATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 23056.

United States Court of Appeals, Ninth Circuit.

February 16, 1970.

Arthur E. Gore (argued), Oceanside, Cal., for petitioner.

Michael B. Arkin (argued), Harry Baum, Attys., Dept. of Justice, Johnnie M. Walters, Asst. Atty. Gen., Dept. of Justice, K. Martin Worthy, Chief Counsel, IRS, Washington, D. C., for respondent.

Before BARNES, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Hollywood Baseball Association seeks review of a decision of the Tax Court. This is the second time that the case has been before us. The first decision of the Tax Court is reported at 42 T.C. 234 (1964). We affirmed, 1965, 352 F.2d 350. On certiorari, the Supreme Court reversed and remanded for reconsideration in the light of Malat v. Riddell, 1966, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102. Hollywood Baseball Ass'n v. Commissioner, 1966, 383 U.S. 824, 86 S.Ct. 1221, 16 L.Ed.2d 291. We remanded to the Tax Court for new findings. The Tax Court again decided for the Commissioner, 1968, 49 T.C. 338. We affirm.

The facts are stated in detail in the first decision of the Tax Court. In the decision now under review, the Tax Court did not receive additional evidence. It found that Hollywood's "player contracts were petitioner's stock in trade, held principally for sale to customers in the ordinary course of its trade or business within the intendment of section 337 I.R.C. § 337(b) (1) (A) as construed by the Supreme Court in Malat. * *" The opinion, however, makes it clear that this "finding" is a legal conclusion that the player contracts "were an integral part of, and at the heart and core of petitioner's business. * * * Petitioner argues that its principal purpose in holding the contracts was to play baseball, but before the game could start petitioner had to agree to sell the contracts on demand. Therefore, in our view, its motive of first importance was to hold the contracts for sale."

The record also makes it clear that this holding is not really based upon Malat, supra, but on the decision in Corn Products Refining Co. v. Commissioner, 1955, 350 U.S. 46. 76 S.Ct. 20, 100 L.Ed. 29. As the Tax Court put it, "In Malat * * * the Supreme Court approved the rationale of Corn Products * * * in its construction of the statutory provision with which we now deal."

Were it not for Corn Products, we would have great difficulty with this decision. It is uncontradicted that Hollywood was organized and operated as a minor league baseball club. The primary reason for its existence was to make money by playing professional baseball and selling tickets to the games. To do this, it had to have players, just as a factory has to have a building, machinery and employees. The peculiar rules of baseball required that it make its player contracts available for sale. But nothing in the record would support a finding that it made the contracts available because it wanted to — that this was the reason why it made the contracts, or that it wanted to sell its best players, either under the player draft or under its working agreement with Pittsburgh. We think that the contrary is obviously true — it sold its players because it had to agree to do so in order to be in business. We have no doubt that it hoped that it could keep its players. In short, we think it quite unrealistic to say that in fact, to use the language of Malat, Hollywood's player contracts were held by it "principally" for sale to customers, or that sale to such customers was "of first importance" in its holding of the contracts.

Nevertheless, we conclude that the principle of Corn Products is applicable here, and that the Tax Court correctly applied it.

In Corn Products,supra, a manufacturer of products made from grain corn purchased corn futures in order to insure an adequate supply of raw materials. If no shortage of corn was imminent, the company would later sell the futures. This system protected it against price increases for corn. The Supreme Court held that the profits and losses from the transactions in corn futures were not entitled to capital assets treatment, because the transactions were an "integral part" of its business. (350 U.S. at 51, 76 S.Ct. at 24.) The Court's reasoning is:

"Nor can we find support for petitioner\'s contention that hedging is not within the exclusions of § 117(a). Admittedly, petitioner\'s corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of § 117 must not be so broadly applied as to defeat rather than further the purpose of Congress. Burnet v. Harmel, 287 U.S. 103, 108, 53 S.Ct. 74, 76 L.Ed. 199. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. The preferential treatment provided by § 117 applies to transactions in property which are not the normal source of business income. It was intended `to relieve the taxpayer from * * * excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions.\' Burnet v. Harmel, 287 U.S., at 106, 53 S.Ct. at 75. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. This Court has always construed narrowly the term `capital assets\' in § 117. See Hort v. Commissioner, 313 U.S. 28, 31, 61 S.Ct. 757, 758, 85 L.Ed. 1168; Kieselbach v. Commissioner, 317 U.S. 399, 403, 63 S.Ct. 303, 305, 87 L.Ed. 358."

Section 117(a) of the 1939 Code is now § 1221 of the 1954 Code.

In Malat, supra, petitioner was part of a joint venture which bought a 45 acre tract of land. He claimed that the intended use was for an apartment project; the government claimed that the intended use was dual: either developing for rental purposes, or selling, whichever proved to be the more profitable. The District Court found the dual purpose, and that the property was therefore held "primarily" for sale to customers in the ordinary course of business, with "primarily" meaning "substantially." The Supreme Court held that "primarily" meant just what it said — "of first importance" or "principally," and remanded for further findings. The Court's entire discussion of its reasons is as follows:

"The purpose of the statutory provision with which we deal is to differentiate between the `profits and losses arising from the everyday operation of a business\' on the one hand citing Corn Products and `the realization of appreciation in value accrued over a substantial period of time\' on the other (Commissioner v. Gillette Motor Co., 364 U.S. 130, 134, 80 S.Ct. 1497, 4 L.Ed.2d 1617.) A literal reading of the statute is consistent with this legislative purpose. We hold that, as used in § 1221(1), `primarily\' means `of first importance\' or `principally.\'" (383 U.S. at 572, 86 S.Ct. at 1032.)

A recent article (Bernstein, "Primarily for Sale": A Semantic Snare, 20 Stan. L.Rev. 1093 (1968)) argues persuasively that the Supreme Court erred in Malat because all the lower courts and the lawyers had framed the issues incorrectly. Everyone treated the case as a "dual purpose" one, whereas it should have been treated as an "undecided purpose" case, which is more analogous to a "change of purpose" case. Anyone who purchases property, even if solely for investment purposes, will sell it if offered a sufficiently attractive price.

However, the Supreme Court has spoken, and has spoken broadly, and we are bound by its decision. Moreover, it is clear that our case is not a dual purpose, change of purpose, or undecided purpose case. It is, rather, unique: contracts, the terms of which are a condition precedent to the carrying on of the main purposes of the business, playing baseball and selling tickets, and which make the contracts saleable on the demand of a buyer.

A preliminary question is whether or not Malat is applicable to this case at all. First, Malat dealt with § 1221(1) assets. Is the same reasoning also applicable to § 1231 (depreciable) assets such as are involved here? The same phrase, "primarily for sale to customers in the ordinary course of his trade or business" is to be found in both sections, and the Court in Malat emphasized that "the words of statutes — including revenue acts — should be interpreted where possible in their ordinary, everyday senses." We see no reason why the word "primarily" should be viewed differently in § 1231 than in § 1221. Accordingly, Malat applies to § 1231 assets.

A second preliminary question is whether Malat applies to § 337. Again, the language used is similar. Further-more, the Supreme Court's vacation and remand of the instant case "for further consideration in light of Malat v. Riddell" 383 U.S. 824, 86 S.Ct. 1221 would seem to indicate that the similar language of the two statutes is to be construed similarly. Accord, Pridemark, Inc. v. Commissioner, 4 Cir., 1965, 345 F.2d 35, 45. Apparently, the Supreme Court thinks that Malat is applicable.

Although, technically, the Supreme Court's language in Malat is dictum insofar as sections 1231 and 337 are concerned, it is certainly dictum which cannot lightly be disregarded. Yet, as we have seen, it is arguable that this is exactly what the Tax Court has done. The Tax Court has purported to merge the "primarily" test of Malat with the "integrally" test of Corn Products, and would deny capital asset treatment on the finding that the sales were "an integral part" of the business. Nevertheless, in Malat the Supreme Court ...