Liflans Corporation v. United States, 316-64.

• Decision Date: 16 February 1968
• Docket Number: No. 316-64.,316-64.
• Citation: 390 F.2d 965
• Parties: LIFLANS CORPORATION v. The UNITED STATES.
• Court: U.S. Claims Court

390 F.2d 965 (1968)

LIFLANS CORPORATION v. The UNITED STATES.

No. 316-64.

United States Court of Claims.

February 16, 1968.

Harry L. Brown, Washington, D. C., attorney of record, for plaintiff.

Edward Heilbronner, Washington, D. C., with whom was Asst. Atty. Gen. Mitchell Rogovin, for defendant. Philip R. Miller and Joseph Kovner, Washington, D. C., of counsel.

Before COWEN, Chief Judge, LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner C. Murray Bernhardt with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on November 16, 1967, and a supplemental report filed on November 29, 1967. On January 3, 1968, the parties filed a stipulation wherein they have each agreed not to take exceptions to the report of the commissioner dated November 16, 1967, as amended by the supplemental report dated November 29, 1967, and that judgment should be entered in accordance therewith if approved by the court. Since the court is in agreement with the opinion and recommendation of the commissioner, as amended by the supplemental report, it hereby adopts the same as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Rule 47(c).

OPINION OF COMMISSIONER

BERNHARDT, Commissioner:

Plaintiff, a Florida corporation organized in 1955 to acquire and then lease the Versailles Hotel in Miami Beach, petitions for a refund of Federal income taxes paid for its fiscal years ended November 30, 1958, 1959 and 1960.

Three basic issues exist as to the deductibility of interest on certain debentures: (1) whether the $600,000 in debentures issued by plaintiff represent debt or risk capital; (2) whether, to the extent Section 267(a) (2), Internal Revenue Code of 1954, prevents the deduction of interest on plaintiff's debentures because not paid within the taxable year plus the following two and a half months, the interest is deductible in the year in which it is paid; and (3) whether debenture interest is deductible with respect to the debentures held by the Morris Lansburgh Company (a partnership of Morris and Jean Lansburgh), and by Robert S. Levy, in view of the personal and business relationships proscribed by Section 267(a) (2).

It is found (1) the debentures represented debt rather than equity so that the interest is deductible under Section 163 (a) of the 1954 Code if not precluded by other section; (2) Section 267 of the 1954 Code precludes the deduction of that interest which was accrued on the debentures during the taxable year but which was not paid until after the taxable year plus two and a half months to the extent that such debentures were held or are considered to have been held by persons other than Robert S. Levy and Jean Lansburgh; and (3) interest on the debentures held by Robert S. Levy and on Jean Lansburgh's half of the debentures held by the Morris Lansburgh Company partnership is deductible as accrued regardless of the date of payment.

Plaintiff, an accrual basis taxpayer, was formed by several individuals and trusts to buy the Versailles Hotel in Miami Beach from its French owners. The final purchase price was $1,275,000, with $400,000 to be paid in cash by the time of closing and the remainder to be paid in eight months. This is an atypical arrangement for the sale of Miami Beach hotel property, which is commonly sold for 20 to 25 percent cash with the balance secured by 15-18 years' mortgages.

Plaintiff planned to double the size of the hotel, to refurbish it, and to make other improvements. To this end Morris Lansburgh, who negotiated the purchase for plaintiff, secured a commitment for a long-term, $1,250,000 mortgage loan from a life insurance company. Part of this loan, plus (1) $150,000 paid in for the plaintiff's capital stock, (2) advances secured by a second mortgage, and (3) advances for which the debentures in question were issued, was used by plaintiff to pay the previous owners, and part for the expansion program initiated after plaintiff assumed control. Open-account advances in connection with the expansion program, were repaid in short order.

As the improvements neared completion, plaintiff received an unsolicited offer of $4 million for the property, which was $1,247,000 over the cost basis of the property as improved. This offer gave plaintiff reason to believe it had an unrecorded equity in the property of $1,247,000, in addition to the $150,000 in paid-in capital.

Plaintiff considered its $150,000 capitalization sufficient because, since it intended to lease out the hotel to an operating entity, it would have few operating expenses and little need for substantial capital. Anticipated rental income and substantial non-taxable cash flow from the accelerated depreciation provisions of the then recently enacted 1954 Code provided ample assurance that proposed debentures could be retired without difficulty. Therefore, plaintiff's board of directors in December 1955 authorized the issuance of $600,000 in eight percent debentures to be repaid in seven years. These were subscribed to by members of the stockholder-creditor group, as will appear. Plaintiff's cash flow from accelerated depreciation for fiscal 1955 through fiscal 1962 exceeded its principal payments on the debentures by more than $733,000. Because of a severe, unforeseeable slump in the Miami Beach hotel business in the late 1950's and early 1960's resulting from the "big freeze" of 1957, and an unanticipated Federal income tax assessment of about $100,000, the plaintiff in 1962 was compelled to extend the due date of the debentures until November 1965 and to modify the first mortgage agreement with the insurance company. All interest on the debentures which was unpaid as of November 30, 1960, was waived. Until the time of the extension, plaintiff had paid off nearly $514,000 of the debentures. The remaining $86,000 was repaid within 18 months.

Beginning in 1956 plaintiff made payments to its debenture holders and deducted the interest thereon from its Federal income tax for the years when accrued. The Internal Revenue Service disallowed all but about $9,400 of the approximately $189,000 in interest claimed as a deduction on the basis that it was not paid within the statutory period of the taxable year plus two and a half months as required by Section 267 of the 1954 Code.

I — Debt versus Equity issue

In this action, plaintiff claims that the debentures were bona fide debt, which contention defendant at first did not challenge. Two years after filing its answer in this action, defendant by afterthought amended its answer, and alleged that the debentures represented "equity capital" rather than debt, with predictable tax consequences.

In two recent cases, American Processing & Sales Co. v. United States, 371 F.2d 842, 178 Ct.Cl. 353 (1967), and Jack Daniel Distillery, etc., v. United States, 379 F.2d 569, 180 Ct.Cl. 308 (1967), this court has dealt extensively with the problem of distinguishing between corporate debt and risk capital. The court said in American Processing & Sales Co. v. United States, supra, 371 F.2d at 848, 178 Ct.Cl. 362-363:

* * * There is no dearth of cases in this province of tax law. * * * At most they offer tentative clues to what is debt and what is equity for tax purposes; but in the final analysis each case must rest and be decided upon its own unique factual flavor, dissimilar from all others, for the intention to create a debt is a compound of many diverse external elements pointing in the end to what is essentially a subjective conclusion.

The court then set out five criteria which it felt were basic to the debt-equity distinction.¹ They are: (1) the true or real intention of the parties as expressed in the instrument and corroborated by surrounding facts; (2) ratio of debt to equity in the financial structure of the debtor; (3) reasonable expectation of repayment regardless of the success of the venture; (4) the substantial economic reality of the transaction; and (5) the maintenance of proportional holdings by stockholders whose purported loans remain in "suspicious balance" with their capital contributions. American Processing & Sales Co. v. United States, supra, 371 F.2d at 848, 178 Ct.Cl. at 363.

In determining plaintiff's true or real intention, it is clear from the facts that the plaintiff intended to create a debt instrument. While the form of the instrument is not controlling, it is relevant and entitled to consideration. Crawford Drug Stores v. United States, 220 F.2d 292 (10th Cir. 1955). The debentures here, as was true in the note found to be debt in Jack Daniel Distillery, etc., supra, 379 F.2d at 582, 180 Ct.Cl. at 328, contained an unqualified promise to pay principal and interest, had a definite maturity date, provided means for enforcement of collection at maturity, and ranked equally with the general, unsecured creditors of the corporation.

Until unforseen economic difficulties hit the Miami Beach hotel business in the late 1950's, plaintiff made payments of principal and interest regularly. At that time, plaintiff sought and was given a three-year extension to repay the remaining $86,000, and completed payments within 18 months. The fact that payments were initially made as proposed, and that all payments were eventually made, are strong indicia of the intent to create debt instruments. Cf. Charles Curry, 43 T.C. 667 (1965); Amleto U. Salvadore, 22 CCH Tax Ct. Mem. 1718 (1963).

Against these considerations must be balanced the facts that the extension was sought, and that unpaid interest payments prior to 1960 were waived. The findings conclusively show that unforeseen business difficulties caused plaintiff to...