Spirella Co. v. Commissioner

The Spirella Company Incorporated, Petitioner, v. Commissioner of Internal Revenue, Respondent Spirella Co. v. Commissioner Docket No. 5030 United States Tax Court 5 T.C. 876; 1945 U.S. Tax Ct. LEXIS 72; September 28, 1945, Promulgated *72 Decision will be entered for the respondent. Loss sustained by petitioner-stockholder as a result of reduction in corporation's stated capital, exchange of old stock for new representing reduced capitalization, and redemption of part of new stock in exchange for cash, held, not recognizable under Internal Revenue Code, section 112 (e). Paul P. Cohen, Esq., for the petitioner. Lawrence F. Casey, Esq., for the respondent. Opper, Judge. OPPER *876 Petitioner seeks a redetermination of a deficiency in corporate income taxes for the year 1940 in the amount of $ 7,525.04. The sole issue is whether petitioner is entitled to the *73 deduction taken upon its return in the amount of $ 32,370 as a loss realized upon the disposition of 390 shares of capital stock of Spirella Co. Western, Inc. (hereinafter referred to as Western), which the latter acquired from petitioner in December 1940. FINDINGS OF FACT. The facts are not in dispute. Substantially all have been submitted by stipulation and are found accordingly. So far as material, the facts as stipulated and as found from the record at the hearing are as follows: Petitioner is a New York corporation having its principal place *877 of business in the city of Niagara Falls, New York. It filed its tax returns for the calendar year 1940 with the collector for the twenty-eighth New York district. Western is a Delaware corporation, organized on August 4, 1933, with an authorized capital stock of 1,000 shares without par value. Between September 27, 1933, and November 27, 1934, petitioner acquired 900 shares of the capital stock of Western for $ 100 per share, the consideration therefor which was fixed by Western's board of directors. The remaining 100 shares were issued to others, also for $ 100 per share. On December 19, 1940, petitioner held 780 of said *74 shares and Harris N. Grinager (hereinafter referred to as Grinager) held the remaining 220 shares. From September 1933, when it began business, until August 1, 1939, Western was engaged in the manufacture and sale of women's foundation garments and accessories, with its factory and principal office in Oakland, California. From these operations it sustained losses aggregating $ 89,051.49 during this period. As a result, Western's directors determined that Western should close manufacturing operations and confine its activities to those of a sales agency in the western states for the foundation garments manufactured by petitioner; further, that it should dispose of those of its assets not required for such sales activities. Between August 1939 and April 1940 Western closed its Oakland office and disposed of all of its assets, including plant, machinery, and inventory, other than its cash and accounts receivable. On November 30, 1940, Western's assets consisted of cash in the amount of $ 13,213.36 and accounts receivable in the aggregate amount of $ 8,746.67; its liabilities, accounts payable in the amount $ 2,529.32. Western's directors agreed on or about December 11, 1940, that, *75 in view of the modified character of Western as sales agent of petitioner, it needed only a small fraction of the cash it then had available and that at least $ 8,500 of such cash could be distributed to its stockholders. Western's directors consulted its counsel regarding possible distribution of such cash and were advised that no distribution could be made while the capital stock was impaired by the existing deficits and that the simplest and most direct way of eliminating the deficit would be by changing the authorized and issued capital stock of Western from 1,000 shares at no par to 1,000 shares at $ 10 par value. At a meeting of Western's directors held on December 11, 1940, the following resolution was adopted: Resolved that the Certificate of Incorporation of the Corporation be amended so as to change the authorized capital stock of the Corporation from one thousand (1,000) shares without par value to one thousand (1,000) shares of the par value of ten dollars ($ 10) per share by amending paragraph Fourth of the Certificate of Incorporation so as to read as follows: Fourth: "The amount of the total authorized capital stock of the Corporation is ten thousand dollars ($ 10,000) *76 divided into one thousand (1,000) *878 shares of the par value of ten dollars ($ 10) each. The amount of capital stock with which it will commence business is one thousand dollars ($ 1,000)." Resolved that the capital of this corporation be reduced from one hundred thousand dollars ($ 100,000) to five thousand dollars ($ 5,000). Resolved that such reduction shall be effected by the exchange of each share of the one thousand (1,000) shares of the capital stock of the corporation without par value outstanding for one share of stock having a par value of ten dollars ($ 10) per share and by acquisition and retirement of five hundred (500) shares of said capital stock of this corporation of the par value of ten dollars ($ 10) per share. Resolved that upon the adoption by the holders of record of a majority of the shares of this corporation, at a meeting of the stockholders of the corporation to be duly called and held, of a resolution supplementing the resolution of this board so to reduce the capital of this corporation, the proper officers of the corporation be and they hereby are authorized and directed to execute and acknowledge a certificate of such reduction under the seal*77 of this corporation, and file such certificate in the office of the Secretary of State of the State of Delaware and record a certified copy thereof in the office of the Recorder for the County of Newcastle, and upon the filing and recording of the said certificate of reduction to acquire and cancel stock certificates for the said five hundred (500) shares * * * Pursuant to the resolution, a certificate of amendment of the certificate of incorporation of Western was duly filed with the Secretary of State of Delaware on December 19, 1940, embodying the resolution and changing the capital stock structure as therein indicated. On December 21, 1940, petitioner and Grinager surrendered to Western's treasurer 780 and 220 no par shares of Western, held by them respectively, and received new certificates for 780 shares and 220 shares, respectively, of Western's stock of par value of $ 10 per share. On December 23, 1940, a certificate of reduction of the capital of Western was filed with the Secretary of State of Delaware, providing for the reduction of Western's capital to $ 5,000. Following the filing and on the same date, Western acquired from petitioner 390 shares of its capital stock *78 for the sum of $ 6,630 and acquired from Grinager 110 shares for the sum of $ 1,870, both being at the rate of $ 17 per share. The 500 shares were thereafter retired and canceled by Western and have never been reissued. On said date, prior to the acquisition of the 500 shares, the fair value of Western's assets, less liabilities, was $ 19,361.49; the fair value of the said shares was not in excess of $ 19.36 per share. Except as hereinabove set forth, there was no other change in the capital stock of Western, nor was there any other distribution or payment to its stockholders between the date of Western's incorporation and the close of the calendar year 1940. No consolidated Federal income tax returns have ever been filed for petitioner and Western. *879 OPINION. In order to obtain the surplus cash accumulated in Western's treasury as a result of the reduction in its activities, petitioner and the other holder of Western's stock brought about a reduction in its capitalization by an exchange of stock and turned in part of the new stock for a roughly equivalent cash distribution. The present controversy is limited to the question of petitioner's right to deduct the resulting loss, *79 respondent having denied it because of the nonrecognition provisions of section 112. Whether we consider that the exchange of stock for stock in the reorganization was a necessary legal preliminary to the partial liquidation, as petitioner at one point contends, or accomplished something more than was inescapably requisite, as seems to be suggested at another, the fact remains that the exchange itself would have been a taxable event but for the provisions of section 112. If the new stock, contrary to the present facts, happened to be worth more than the cost of the old, a tax on the resulting gain would be withheld only because forbidden by the terms of section 112 (b) (3). The postponement of any loss is likewise necessary to accomplish the legislative purpose. But the statutory plan does not end there. It makes provision also for the tax consequence of any cash received as part of the transaction. Here, however, the indentity of treatment as between gains and losses disappears. Gain is taxed to the extent of the cash, but no loss can be recognized. Sec. 112 (c) and (e). That the cash distribution took the form of a partial liquidation under section 115 does not authorize us*80 to depart from the treatment prescribed in section 112. The direction of the former section is to the contrary. The consequence of an admitted distribution in liquidation is specified by section 115 (c) to be the tax recognition of gain or loss only to the extent prescribed by section 112. This is consonant with the underlying theory of liquidating distributions, that they are "in part or full payment in exchange for the stock." To the extent of the receipt of cash, the liquidation compares to a sale. In so far as a reorganization partakes of the nature of a sale, the gain is recognized but the loss is not. See 3 Mertens Law of Federal Income Taxation, 301. In seeking to avoid the effect of section 112 and particularly of 112 (e), we think petitioner is thus doing no more than attempting to escape from the difference in treatment prescribed by this part of the statute as to gains on the one hand and losses on the other. If the distribution of cash had resulted in gain, recognition would have followed, not merely because there was a partial liquidation, but by the explicit mandate of section 112 (c). That Congress, for adequate *880 reasons, 1 has elected to forbid the*81 recognition of any loss under identical circumstances furnishes no justification for our disregard of its command. *82 Nor can the fact that the reorganization was occasioned by the poor financial condition of the corporation afford any reason for refusing to apply the very section which was designed to operate in such situations. See Helvering v. Alabama Asphaltic Limestone Co., 315 U.S. 179, 184. The sole purpose of the exchange, to issue new stock representing the shareholders' reduced interests, was such that if the transactions were to be treated separately, as petitioner contends they should be, the loss would be the result of the exchange, not of the liquidating distribution. Cf. Edith M. Greenwood, 41 B. T. A. 664. To give it effect, we should again be required to depart from the terms of section 112, in the very type of situation to which it is most clearly applicable. 2 *83 None of these difficulties would arise in the case of a corporation whose capital structure needed -- or was given -- no reconstruction. So that it is the very essence of the present situation, and no mere accident, that recognition of petitioner's loss is denied by the legislative design, taken as a whole. In John P. Elton, 47 B. T. A. 111, neither of the issues discussed even remotely touches upon the present controversy. We conclude that the exchange of stock for stock was a reorganization under 112 (g) as to which accounting for gain or loss was postponed under 112 (b) (3), except as to the cash received, and that as to that, loss was not recognized under 112 (e); that, whether necessary *881 or not, the exchange and distribution were parts of a single transaction of which the effect must be considered as a unit, Helvering v. Alabama Asphaltic Limestone Co., supra, 185; and that, although the cash was distributed in partial liquidation under section 115, the loss (if any) resulting from it can be accorded recognition only in accordance with section 112. The claimed loss must accordingly be disallowed. Cf. *84 Hellman v. Helvering ( App. D. C., 68 Fed. (2d) 763. Decision will be entered for the respondent. Footnotes 1. Ways and Means Committee report on the 1924 Revenue Act. sec. 203 (f): "* * * In case the exchange results in a gain, the situation is covered in subdivision (d) (1) by a provision that the gain shall be recognized in an amount not in excess of the 'boot.' This limitation, however, is not a logical one, if applied to the case of an exchange resulting in a loss. Subdivision (b) of this section provides that no loss shall be recognized if the entire consideration for the exchange is a certain type of property. Unless some provision is made for cases in which part of the consideration is money, the provisions of subdivision (b) could be avoided and the entire amount of the loss recognized if a small amount of money were received in addition to the specified property. The only way to cover such a case and prevent the taxpayer from taking the entire loss by adding a small amount of money to the property received is to provide that no loss shall be recognized, otherwise the law might be evaded." House Report No. 179, 68th Cong., 1st sess., p. 15.↩ 2. Thus, Montgomery, Income Tax Procedure, (1925), pp. 634-635, gives the following illustration to explain the effect of section 203 (f) of the 1924 Act: "* * * Suppose A exchanges a share of common stock in corporation X which cost him $ 100 for a share of common stock in the same corporation whose value is $ 80 and receives $ 1 cash in addition. His actual loss is $ 19. But this type of transaction is considered a continuing one under the law with respect to gains represented by securities still undisposed of (that is, gain is recognized only to the extent of the boot). The question is: What is the loss represented by securities still undisposed of? Such loss clearly should not be recognized at the time of the exchange if the corresponding gain is not brought to account at that time, for this would bring about a one-sided arrangement working to the disadvantage of the Treasury. The $ 1 received in cash must, of course, be used to reduce the value at which the stock is carried for the purpose of establishing the gain or loss upon subsequent sale. The basis of the new stock is $ 99 (cost of the old stock, $ 100, less cash received $ 1.)"↩