Sullivan v. United States

Decision Date31 October 1966
Docket NumberNo. 18147.,18147.
Citation363 F.2d 724
PartiesWilliam J. SULLIVAN and Georgia K. Sullivan, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Claude R. Sanders, Kansas City, Mo., for appellants; Harry A. Morris, Kansas City, Mo., on the brief.

Edward L. Rogers, Attorney, Tax Division, Dept. of Justice, Washington, D. C., for appellee; Richard M. Roberts, Acting Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., Lee A. Jackson, Melva M. Graney and William Friedlander, Attorneys, Tax Div., Dept. of Justice, Washington, D. C., and F. Russell Millin, U. S. Atty., Kansas City, Mo., on the brief.

Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.

Renewed Petition for Rehearing and for Consideration thereof by Court En Banc Denied October 31, 1966.

STEPHENSON, District Judge.

This is an appeal by the taxpayer1 from the District Court's judgment (Sullivan v. United States, 244 F.Supp. 605 (W.D.Mo.1965)) denying recovery for that portion of his 1956 income taxes alleged to have been assessed and collected wrongfully. The taxpayer made a timely claim for a refund. Jurisdiction exists under the provisions of 28 U.S.C. § 1346 (a) (1).

The facts are set out in detail in the District Court's opinion. In brief, the taxpayer Sullivan purchased the assets of an automobile dealership in Blytheville, Arkansas in 1941. He then formed a corporation to operate the dealership. The individual who became resident manager of the dealership, Loy Eich, eventually acquired 120 shares of the 300 shares of stock outstanding — the rest being owned by taxpayer Sullivan. When Eich terminated his management of the dealership in February 1948, Sullivan purchased his 120 shares of stock. Thereafter, in September, 1948, Frank Nelson became the resident manager of the dealership under an arrangement which included an agreement permitting Nelson to acquire up to forty (40) per cent of the stock and further providing for taxpayer's repurchase of said stock upon Nelson's termination of his employment. After acquiring approximately 38% of the corporation's outstanding stock, Nelson announced his intention to depart from his position in 1956 and offered to sell his stock to taxpayer Sullivan. The corporation's Board of Directors then authorized the redemption of Nelson's stock by the corporation.

The ultimate question before the District Court involved a determination of whether the payment by the corporation in redemption of Nelson's stock constituted a taxable distribution to taxpayer Sullivan, the sole remaining stockholder of the corporation. The District Court found that taxpayer Sullivan was unconditionally and primarily obligated to purchase Nelson's stock in 1956 and that said stock was purchased by the Corporation out of profits distributable as a dividend and therefore held that the taxpayer constructively received income equivalent to a dividend in the amount paid by the Corporation for said stock, ($198,334.58). Initially, an interpretation of the memorandum agreement entered into by Sullivan and Nelson at the time the latter assumed his managerial functions is necessary. The agreement contained the following provisions:2

"6. TRANSFER OF SHARES OF STOCK. It is understood and agreed that Sullivan is permitting Nelson to buy stock in said corporation for the purpose of giving him a working interest only, and said Nelson agrees that said shares of stock cannot and will not be mortgaged, hypothecated or transferred by him, his heirs, executor, administrator or trustee to any person other than William J. Sullivan or such person as said Sullivan directs in writing. Any such sale, delivery or transfer to any other person, firm or corporation shall be null and void. Said Sullivan agrees that he will, within thirty (30) days after such shares have been offered for sale to him, accept the offer to sell, provided always that such shares shall be offered for sale at a price to be determined according to this contract."
7. TERMINATION OF CONTRACT. Said Nelson agrees that if he should terminate his employment or relationship with William J. Sullivan or employment by the said corporation, and if his connection and association with the corporation should cease or be terminated by Sullivan or the majority owners of the stock of the corporation, then said Nelson agrees to sell and transfer and deliver to Sullivan at the then book value all shares of stock owned by him in the Sullivan-Nelson Chevrolet Co. * * * If said contract is terminated by Nelson or Sullivan as herein provided or by the death of Nelson, the value of the stock owned by Nelson shall be fixed and determined as set up in paragraphs four and five of this agreement. If said Nelson should die or become so disabled by injury or sickness as to become incapable of managing and operating the business, then said Sullivan shall have the immediate and exclusive rights to purchase the stock owned by Nelson or by his heirs, administrators or executors in accordance with the terms of this contract. Title so (sic) said shares of stock shall automatically rest in Sullivan upon Nelson\'s death and said Sullivan shall be obligated to Nelson\'s personal representative or representatives for the value thereof as fixed by this agreement."

On the face of the agreement it would appear that Sullivan obligated himself to purchase Nelson's stock when it was offered to him for sale. The petitioner contends, however, that such an interpretation is contrary to the intention of the parties to the agreement and is not in conformity with the circumstances existing at the time the parties entered into the agreement. On the basis of the parol evidence rule, the District Court refused to consider the taxpayer's evidence in this connection. Sullivan urges that the District Court erred in its application of the parol evidence rule in this instance because (1) the agreement herein is ambiguous and (2) a stranger to the agreement, such as the government cannot invoke the parol evidence rule. The parol evidence rule provides, essentially, that evidence of understandings and negotiations concerning a written instrument is inadmissible to vary, alter or contradict the terms of the written instrument when that instrument is complete, unambiguous, and valid and there is no claim of fraud, accident or mistake with respect to the evidence. 3 Corbin, Contracts, § 373 at 357-358 (1960); 32A C.J.S. Evidence § 851 at 211 (1964). In applying this general rule to the instant case, it would appear that the parol evidence rule would be inapplicable only if it were determined that the memorandum agreement between Nelson and Sullivan was ambiguous. After careful consideration of that agreement this Court is convinced that the agreement is not ambiguous. Under the terms of that agreement, Sullivan was obligated personally to purchase Nelson's shares of stock if the same were offered to him for sale. The restrictions contained in paragraph 6 limiting Nelson's use of his stock do not render Sullivan's obligation to purchase confused or ambiguous. The District Court was correct in rejecting Sullivan's contention that the memorandum agreement involved herein was ambiguous and in refusing to consider evidence tending to vary or contradict his obligation under that agreement.

The taxpayer herein further urges that the district court erred in concluding that evidence of the intent and activities of the parties with respect to the agreement could be given no legal effect because of the parol evidence rule. There is language in the cases which seemingly supports the taxpayer's position on this point.3 Noted commentators in the fields of contracts and evidence, however, have concluded that the invocation of the parol evidence rule by or against a stranger to a contract is permissible.4 In any event, we are satisfied that the emergence of any contractual liability of the corporation here did not destroy, and was not intended to destroy, the obligation theretofore existing on the part of Sullivan to Nelson. Any comments in our opinions in Birmingham v. Bartels, 157 F.2d 295, 301 (8th Cir. 1946), reversed 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947), and Reynolds v. Boos, 188 F.2d 322, 324 (8th Cir. 1951), afford no comfort to the taxpayer here when they are read in the light of the facts of those cases and of the comments' concern with recital or descriptive matter rather than with contractual obligation. The district court's conclusion as to the legal effect of the oral evidence was therefore not erroneous.

The taxpayer further contends that he was not unconditionally obligated to redeem Nelson's stock because there was no mutuality of obligation under the memorandum agreement. The contention is without merit. Both Sullivan and Nelson incurred obligations under the agreement. Sullivan obligated himself to purchase Nelson's stock thirty days after it was offered to him for sale. On the other hand, Nelson agreed that he would not mortgage, hypothecate or transfer his stock without Sullivan's consent. The memorandum agreement clearly evidences a mutuality of obligation. The District Court was justified in concluding that Sullivan was unconditionally obligated to purchase Nelson's...

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