Israelson v. United States, Civ. No. 72-948-T.

• Decision Date: 07 December 1973
• Docket Number: Civ. No. 72-948-T.
• Citation: 367 F. Supp. 1104
• Parties: Max R. ISRAELSON and Bernice Israelson v. UNITED STATES of America.
• Court: U.S. District Court — District of Maryland

367 F. Supp. 1104

Max R. ISRAELSON and Bernice Israelson v. UNITED STATES of America.

Civ. No. 72-948-T.

United States District Court, D. Maryland.

December 7, 1973.

Marvin J. Garbis, Baltimore, Md. (Allen L. Schwait and Garbis & Schwait, Baltimore, Md., on the brief), for plaintiffs.

Edward J. Snyder, Atty., Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., and David A. Wilson, Jr., Atty. Dept. of Justice, Washington, D. C., on the brief), for defendant.

THOMSEN, District Judge.

Plaintiffs seek to recover $5,925.33 of federal income taxes paid as a deficiency for 1967 and $1,371.63 of interest paid with that deficiency.¹ Bernice Israelson is a party to the action only because she filed a joint federal tax return with her husband, Max R. Israelson.

I

The principal question presented is whether $16,308.92 out of a total of $21,155.00 of interest expense claimed by the plaintiffs for 1967 was properly disallowed by the Internal Revenue Service under the provisions of section 265, Internal Revenue Code of 1954, which provides:

"No deduction shall be allowed for —

"* * * * * *

"(2) Interest.—Interest on indebtedness incurred or continued to purchase or carry obligations * * * the interest on which is wholly exempt from the taxes imposed by this subtitle. * * *"

Max R. Israelson (hereinafter Taxpayer) practices law in Baltimore. In 1965 he received a substantial profit from a real estate venture. He consulted highly competent investment counsel, who advised him to diversify his investments and to keep or place about one-third in stocks, one-third in tax-exempt bonds and one-third in real estate. Taxpayer followed that advice.

By January 1, 1967, Taxpayer owned tax-exempt bonds with a total cost of $360,000,² of which $220,000 had been purchased in 1965 and 1966, the others earlier. During 1967 he sold two lots of such bonds for $29,000, and in their place purchased two lots for $30,000. Nothing except his investment philosophy prevented his selling his tax-exempt bonds at any time.

During the years 1964-1967, a joint venture of which Taxpayer was one of two members purchased nine parcels of real estate near Riverhead, Long Island, with the intention of assembling a large tract to be sold in one or more sizeable units. Two other joint ventures in which Taxpayer participated had purchased two neighboring parcels of Florida real estate in 1962 and 1965. In each case a purchase money mortgage was given, as well as a substantial amount of cash. Most of the property is still held by the respective joint ventures, although some of the Long Island property has been sold.

For some years before 1965 Taxpayer had carried a substantial loan at the First National Bank. At one point, in July 1965, he paid off that loan, but shortly thereafter began to borrow again. The balance due on the loan was $230,000 during most of 1966, and during 1967 ran between $136,000 and $384,000, with a closing balance of $276,000, and an average monthly balance of $254,000. More than two-thirds of the borrowings in 1967 were used to purchase stocks and taxable bonds; most of the rest was used for investment in real estate; a small proportion was used for charitable contributions, personal and business purposes; none was used to purchase tax-exempt bonds. The collateral securing the loan was always stock or taxable bonds, never tax-exempt bonds.

The Government concedes that the interest paid on the bank loan and on the mortgages was not interest on indebtedness incurred to purchase the tax-exempt bonds, but argues that the interest on the bank loan and on the mortgages was interest on indebtedness incurred or continued to carry the tax-exempt bonds.

The applicable legal principles are set out and discussed in: Illinois Terminal Railroad Company v. United States, 375 F.2d 1016, 179 Ct.Cl. 674 (1967); Wisconsin Cheeseman, Inc. v. United States, 388 F.2d 420 (7 Cir. 1968); Phipps v. United States, 414 F.2d 1366, 188 Ct.Cl. 531 (1969); Leslie v. Commissioner of Internal Revenue, 413 F.2d 636 (2 Cir. 1969), cert. den., 396 U.S. 1007, 90 S.Ct. 564, 24 L.Ed.2d 500 (1970); Bishop v. C. I. R., 342 F.2d 757 (6 Cir. 1965); Ball v. Commissioner, 54 T.C. 1200 (1970); Indian Trail Trading Post v. Commissioner, 60 T.C. 497 (1973); Mariorenzi v. Commissioner, 32 T.C.M. 681 (June 28, 1973); Norfolk Shipbuilding & Drydock Corp. v. United States, 321 F.Supp. 222 (E.D.Va.1971); Batten v. United States, 322 F.Supp. 629 (E.D. Va.1971).

The following principles are well established. Section 265(2) does not become operative merely because the taxpayer incurred or continued indebtedness at the same time that he held tax-exempt securities. Rather, the Commissioner must establish a sufficiently direct relationship between the debt and the carrying of the tax-exempt bonds. The touchstone for decision is the purpose of the taxpayer in incurring or continuing the indebtedness. A finding of a taxpayer's purpose does not depend solely upon looking into his mind and learning what he was thinking; although his intentions are relevant, his purpose may be inferred from his conduct and from the circumstances that confronted him. The taxpayer has the burden of overcoming the presumption of validity of the Commissioner's determination of deficiencies.

In applying those principles to the facts of this case, the Court will consider separately the interest paid by Taxpayer (A) on the bank loan, and (B) on the purchase money mortgages.

(A) The average amount outstanding on the bank loan during 1967 ($254,000) was appreciably less than the amount of tax-exempt bonds held by Taxpayer during that year ($360,000). For only two months did the amount of the loan exceed $360,000, and then only by a maximum excess of $25,000. He could have avoided borrowing any money from the bank, except such excess for two months, by selling his tax-exempt bonds. The ownership of tax-exempt securities and the maintenance of the bank loan were parts of Taxpayer's investment plan. The fact that his investment counselor had advised him to invest about one-third of his portfolio in tax-exempt bonds cannot insulate Taxpayer from the effect of his deliberate decision to incur and maintain a large bank loan primarily for the purchase of securities, and to continue to hold a large amount of tax-exempt bonds, hoping to achieve the obvious tax advantages. This case is clearly distinguishable from such cases as Ball and Batten, supra.³

With respect to the interest paid on the bank loan, Taxpayer has failed to meet the burden resting on him. The Court finds and concludes that the interest paid in 1967 on the bank loan (except interest on $25,000 for two months) was interest on indebtedness purposefully incurred or continued to carry the tax-exempt bonds.

(B) There was a business reason for giving purchase money mortgages as...