Jordan Marsh Company v. CIR

• Decision Date: 13 August 1959
• Docket Number: Docket 25195.,No. 68,68
• Citation: 269 F.2d 453
• Parties: JORDAN MARSH COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

269 F.2d 453 (1959)

JORDAN MARSH COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 68, Docket 25195.

United States Court of Appeals Second Circuit.

October Term, 1958.

Argued November 14, 1958.

Decided August 13, 1959.

Percy W. Phillips, Washington, D. C. (Ivins, Phillips & Barker, Washington, D. C., on the brief), for petitioner.

Meyer Rothwacks, Atty., Dept. of Justice, Washington, D. C. (Andrew F. Oehmann, Acting Asst. Atty. Gen., and Lee A. Jackson and Joseph F. Goetten, Attys., Dept. of Justice, Washington, D. C., on the brief), for respondent.

Before HINCKS, LUMBARD and MOORE, Circuit Judges.

HINCKS, Circuit Judge.

This is a petition to review an order of the Tax Court, which upheld the Commissioner's deficiency assessment of $2,101,823.39 in income and excess profits tax against the petitioner, Jordan Marsh Company. There is no dispute as to the facts, which were stipulated before the Tax Court and which are set forth in substance below.

The transactions giving rise to the dispute were conveyances by the petitioner in 1944 of the fee of two parcels of property in the city of Boston where the petitioner, then as now, operated a department store. In return for its conveyances the petitioner received $2,300,000 in cash which, concededly, represented the fair market value of the properties. The conveyances were unconditional, without provision of any option to repurchase. At the same time, the petitioner received back from the vendees leases of the same properties for terms of 30 years and 3 days, with options to renew for another 30 years if the petitioner-lessee should erect new buildings thereon. The vendees were in no way connected with the petitioner. The rentals to be paid under the leases concededly were full and normal rentals so that the leasehold interests which devolved upon the petitioner were of no capital value.

In its return for 1944, the petitioner, claiming the transaction was a sale under § 112(a), Internal Revenue Code of 1939,¹ sought to deduct from income the difference between the adjusted basis of the property and the cash received. The Commissioner disallowed the deduction, taking the position that the transaction represented an exchange of property for other property of like kind. Under Section 112(b)(1) such exchanges are not occasions for the recognition of gain or loss; and even the receipt of cash or other property in the exchange of the properties of like kind is not enough to permit the taxpayer to recognize loss. Section 112(e).² Thus the Commissioner viewed the transaction, in substance, as an exchange of a fee interest for a long term lease, justifying his position by Treasury Regulation 111, § 29.112(b) (1)-1, which provides that a leasehold of more than 30 years is the equivalent of a fee interest.³ Accordingly the Commissioner made the deficiency assessment stated above. The Tax Court upheld the Commissioner's determination. Since the return was filed in New York, the case comes here for review. 26 U.S.C.A. § 7482.

Upon this appeal, we must decide whether the transaction in question here was a sale or an exchange of property for other property of like kind within the meaning of §§ 112(b) and 112(e) of the Internal Revenue Code cited above. If we should find that it is an exchange, we would then have to decide whether the Commissioner's regulation, declaring that a leasehold of property of 30 years or more is property "of like kind" to the fee in the same property, is a reasonable gloss to put upon the words of the statute. The judge in the Tax Court felt that Century Electric Co. v. Commissioner of Internal Rev., 8 Cir., 192 F.2d 155, certiorari denied 342 U.S. 954, 72 S.Ct. 625, 96 L.Ed. 708, affirming 15 T.C. 581, was dispositive of both questions. In the view which we take of the first question, we do not have to pass upon the second question. For we hold that the transaction here was a sale and not an exchange.

The controversy centers around the purposes of Congress in enacting § 112 (b), dealing with non-taxable exchanges. The section represents an exception to the general rule, stated in § 112(e), that upon the sale or exchange of property the entire amount of gain or loss is to be recognized by the taxpayer. The first Congressional attempt to make certain exchanges of this kind non-taxable occurred in Section 202(c), Revenue Act of 1921, c. 135, 42 Stat. 227. Under this section, no gain or loss was recognized from an exchange of property unless the property received in exchange had a "readily realizable market value." In 1924, this section was amended to the form in which it is applicable here. Discussing the old section the House Committee observed:

"The provision is so indefinite that it cannot be applied with accuracy or with consistency. It appears best to provide generally that gain or loss is recognized from all exchanges, and then except specifically and in definite terms those cases of exchanges in which it is not desired to tax the gain or allow the loss. This results in definiteness and accuracy and enables a taxpayer to determine prior to the consummation of a given transaction the tax liability that will result." (Committee Reports on Rev.Act of 1924, reprinted in Int.Rev.Cum.Bull. 1939-1 (Part 2), p. 250.)

Thus the "readily realizable market value" test disappeared from the statute. A later report, reviewing the section, expressed its purpose as follows:

"The law has provided for 12 years that gain or loss is recognized on exchanges of property having a fair market value, such as stocks, bonds, and negotiable instruments; on exchanges of property held primarily for sale; or on exchanges of one kind of property for another kind of property; but not on other exchanges of property solely for property of like kind. In other words, profit or loss is recognized in the case of exchanges of notes or securities, which are essentially like money; or in the case of stock in trade; or in case the taxpayer exchanges the property comprising his original investment for a different kind of property; but if the taxpayer\'s money is still tied up in the same kind of property as that in which it was originally invested, he is not allowed to compute and deduct his theoretical loss on the exchange, nor is he charged with a tax upon his theoretical profit. The calculation of the profit or loss is deferred until it is realized in cash, marketable securities, or other property not of the same kind having a fair market value." (House Ways and Means Committee Report, reprinted in Int.Rev. Cum.Bull.1939-1 (Part 2), p. 564.)⁴

These passages lead us to accept as correct the petitioner's position with respect to the purposes of the section. Congress was primarily concerned with the inequity, in the case of an exchange, of forcing a taxpayer to recognize a paper gain which was still tied up in a continuing investment of the same sort. If such gains were not to be recognized, however, upon the ground that they were theoretical, neither should equally theoretical losses. And as to both gains and losses the taxpayer should not have it within his power to avoid the operation of the section by stipulating for the addition of cash, or boot, to the property received in exchange. These considerations, rather than concern for the difficulty of the administrative task of making the valuations necessary to compute gains and losses,⁵ were at the root of the Congressional purpose in enacting §§ 112(b) (1) and (e). Indeed, if these sections had been intended to obviate the necessity of making difficult valuations, one would have expected them to provide for nonrecognition of gains and losses in all exchanges, whether the property received in exchanges were "of a like kind" or not of a like kind. And if such had been the legislative objective, § 112(c),⁶ providing for the recognition of gain from exchanges not wholly in kind, would never have been enacted.

That such indeed was the legislative objective is supported by Portland Oil Co. v. Commissioner of Internal Revenue, 1 Cir., 109 F.2d 479. There Judge Magruder, in speaking of a cognate provision contained in § 112(b), said at page 488:

"It is the purpose of Section 112 (b) (5) to save the taxpayer from an immediate recognition of a gain, or to intermit the claim of a loss, in certain transactions where gain or loss may have accrued in a constitutional sense, but where in a popular and economic sense there has been a mere change in the form of ownership and the taxpayer has not really `cashed in\' on the theoretical gain, or closed out a losing venture."

In conformity with this reading of the statute, we think the petitioner here, by its unconditional conveyances to a stranger, had done more than make a change in the form of ownership: it was a change as to the quantum of ownership whereby, in the words just quoted, it had "closed out a losing venture." By the transaction its capital invested in the real estate involved had been completely liquidated for cash to an amount fully equal to the value of the fee. This, we hold, was a sale — not an exchange within the purview of § 112 (b).

The Tax Court apparently thought it of controlling importance that the transaction in question involved no change in the petitioner's possession of the premises: it felt that the decision in Century Electric Co. v. Commissioner of Internal Rev., supra, controlled the situation here. We think, however, that that case was distinguishable on the facts. For notwithstanding the lengthy findings made with meticulous care by the Tax Court in that case, 15 T.C. 581, there was no finding that the cash received by the taxpayer was the full equivalent of the value of the fee which the taxpayer had conveyed to the vendee-lessor, and no finding that the lease back called for a rent which was fully equal to the rental value of the premises. Indeed, in its opinion the Court of Appeals pointed to evidence that the fee which the...