Weyerhaeuser Company v. United States, 254-67.

• Decision Date: 14 June 1968
• Docket Number: No. 254-67.,254-67.
• Citation: 184 Ct. Cl. 492,395 F.2d 1005
• Parties: WEYERHAEUSER COMPANY, Transferee of Hamilton Paper Company v. The UNITED STATES.
• Court: U.S. Claims Court

184 Ct. Cl. 492, 395 F.2d 1005 (1968)

WEYERHAEUSER COMPANY, Transferee of Hamilton Paper Company v. The UNITED STATES.

No. 254-67.

United States Court of Claims.

June 14, 1968.

John T. Piper, Washington, D. C., attorney of record, for plaintiff.

W. Stephen McConnell, Washington, D. C., with whom was Asst. Atty. Gen., Mitchell Rogovin, for defendant. Philip R. Miller, Washington, D. C., of counsel.

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

ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

COWEN, Chief Judge.

Plaintiff Weyerhaeuser Company, a corporation of the State of Washington, sues to recover $13,991 in documentary stamp taxes which it alleges were erroneously and illegally assessed against it by defendant. The taxes were assessed under Section 4301 of the Internal Revenue Code of 1954, 26 U.S.C. § 4301 (1958), since repealed (Pub.L. 89-44, Title IV, § 401, 79 Stat. 148 (1965)). Plaintiff paid the assessment, filed a timely claim for refund which was disallowed by defendant, and now sues for refund. The facts are not in dispute and the issue is before us on cross-motions for summary judgment.

I

Plaintiff, a Washington corporation, wished to acquire the assets of Hamilton Paper Company, a Pennsylvania corporation. Plaintiff also desired to have these assets transferred to a wholly-owned subsidiary corporation chartered in the State of Washington, and for that purpose plaintiff decided to incorporate a Hamilton Paper Company in Washington to be ready to receive the assets if the acquistion took place. (For convenience, the Hamilton Paper Company of Pennsylvania will be referred to as "Old Hamilton." and the Washington corporation will be referred to as "New Hamilton.") The purposes to be accomplished were to afford Weyerhaeuser an entry into the paper industry and to assure Hamilton Paper Company of a supply of pulp. Another primary objective of both plaintiff and Old Hamilton was to consummate a transaction that would be free of Federal income taxes. To effectuate these various aims, a memorandum of understanding was entered into on January 18, 1961, between plaintiff and Old Hamilton, under the terms of which it was agreed that plaintiff would acquire all the assets of Old Hamilton, worth about 14 million dollars, in exchange for a block of plaintiff's stock and the assumption by plaintiff of Old Hamilton's liabilities, after which Old Hamilton would be liquidated and its block of plaintiff's stock distributed to the Old Hamilton shareholders. The memorandum of understanding also provided that the transaction could not be consummated until the plan of reorganization was approved by the shareholders of Old Hamilton and a ruling was obtained from the Internal Revenue Service that the transaction would be free of income taxes.

On April 11, 1961, plaintiff had New Hamilton chartered as a Washington corporation. On April 13, 1961, plaintiff subscribed to five thousand shares of the stock of New Hamilton, having a par value of $10 per share. The subscription was accepted by New Hamilton on the same day and 100 shares of stock were issued to plaintiff in exchange for $1,000. On the same date, plaintiff and Old Hamilton submitted to the Internal Revenue Service a detailed plan of reorganization in support of their previously filed request for a ruling that the transaction was free from income tax. On April 20, 1961, the shareholders of Old Hamilton approved the plan of reorganization, and on May 1, 1961, the Internal Revenue Service issued a letter ruling that the transaction would be free from income tax because it constituted a reorganization within the meaning of § 368 (a) (1) (C) and (2) (C) of the Internal Revenue Code of 1954, a so-called "C" reorganization. All the contingencies in the memorandum of understanding had been fulfilled, and it was time to complete the transaction.

Accordingly, on May 1, 1961, plaintiff exchanged 347,063 shares of its common stock for the assets of Old Hamilton; then Old Hamilton distributed to its shareholders the shares of plaintiff thus acquired. On both of these actions, the applicable documentary stamp taxes were paid and are not at issue in this case. Also, on May 1, plaintiff paid for the other 4,900 shares of New Hamilton stock to which it had subscribed, and New Hamilton issued the shares to plaintiff. Further, on May 1, 1961, plaintiff contributed the newly acquired Old Hamilton assets to New Hamilton. A capital contribution to a corporation is a non-taxable event, so no income tax was imposed on this step of the deal. The transaction had then completed and the parties had achieved their goals under the memorandum of understanding. The issue to be decided is the amount of the documentary stamp tax which is to be imposed on the issuance of the stock of New Hamilton under the provisions of Section 4301 of the Internal Revenue Code of 1954.

The rate of tax imposed by Section 4301 is one-tenth of one percent of "the actual value of the certificates." Plaintiff contends that applicable Treasury Regulations require that the certificates be valued as of the date when the subscription was accepted by the issuing corporation, New Hamilton, and that on the pertinent date, New Hamilton was worth only the $50,000 which plaintiff had agreed to pay it in exchange for all of its stock. Defendant replies that the value of the stock must include the worth of the assets purchased by plaintiff from Old Hamilton and contributed to the capital of New Hamilton, regardless of the date chosen for the valuation. The theories advanced by defendant in support of its contention are rejected for the reasons hereinafter stated. We agree with plaintiff that the value of the stock on the date of acceptance of the subscription is the value on which the tax is imposed and also that on that date the value was $50,000.

II

The date on which the stock is to be valued can be determined by applying the regulations promulgated by defendant:

(a) Scope of tax — (1) In general. Section 4301 imposes a tax on each original issue of shares or certificates of stock issued by a domestic corporation. * * * In the case of subscriptions, stock is deemed to be issued when the subscription is accepted. Treas. Regs. § 47.4301-1 (1962)¹

There seems no doubt that under the clear language of this regulation, the "date of issue" of the stock of New Hamilton subscribed to by plaintiff was April 13, 1961. It is undisputed that this was the date on which plaintiff subscribed to the stock and New Hamilton accepted the subscription. It may appear artificial to place the "issue" at a date somewhat removed from the date on which the issuing corporation actually takes the formal step of issuing all the shares or certificates. In fact, however, any other rule would make for easy manipulation of taxes by the simple device of changing the date of actual issue, whereas fixing the date of issue — and with it the date of valuation — at the date of subscription, values the stock at the price the purchaser indicates he is willing to pay for it.

In arguing that the stock was issued on May 1, 1961, defendant maintains that despite the broad wording of the regulation, it was intended to apply only to certain kinds of transactions that are designed to avoid the imposition of one or more stamp taxes on the issuance or transfer of stock, rather than to the ordinary situation where issuance of the stock to the subscriber follows in the normal course of events soon after acceptance of the subscription. This contention fails because it collides with the plain language of the regulation, which contains no limitation or restriction on the general rule it states. In arguing for a "date of issue" different...