Sheffield Dentifrice Co. v. Commissioner

SHEFFIELD DENTIFRICE CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Sheffield Dentifrice Co. v. Commissioner Docket No. 11814. United States Board of Tax Appeals 13 B.T.A. 877; 1928 BTA LEXIS 3150; October 10, 1928, Promulgated *3150 1. In 1919 the petitioner abandoned the manufacture and sale of a trade-marked alcoholic cordial known as "Creme Yvette" on account of prohibition legislation. The cost of this trade-mark upon which this business depended was $46,875. In the audit of its income-tax return for 1919, the Commissioner allowed as a deduction from gross income $6,818.18 as obsolescence of the value of the trade-mark. Held, that the petitioner is entitled to deduct from the gross income of 1919 as a loss sustained the entire cost of the trade-mark, namely, $46,875. 2. In 1919 the petitioner and the New England Collapsible Tube Co., an affiliated corporation, filed a consolidated return and in 1922 instructed the Commissioner that profits taxes assessable against the group of corporation, including the New England Collapsible Tube Co. and the petitioner, should be allocated to the New England Collapsible Tube Co. The Commissioner determined a deficiency for 1919 upon the group of corporations and has proposed the assessment thereof against the Sheffield Dentifrice Co.Held, that the petitioner is not liable for any deficiency due from the New England Collapsible Tube Co. Ben Jenkins,*3151 Esq., and David J. Shorb, Esq., for the petitioner. John D. Foley, Esq., for the respondent. SMITH *877 The Commissioner has determined a deficiency in income and profits tax due from the petitioner for the calendar year 1919 in the amount of $14,214.11. In its petition the petitioner alleges the following errors on the part of the Commissioner in the determination of the deficiency: 1. The failure of the Commissioner - (a) To allow as a deduction from the gross income in the year 1919 the full amount of the loss sustained in the abandonment of the trade-marked registration of the alcoholic cordial "creme Yvette" due to the enactment of the Eighteenth Amendment. (b) To allow as a deduction from gross income in the year 1919 a loss sustained in the sale of two frame dwellings. (c) To allow as a deduction from gross income in the year 1919 the obsolescence of machinery due to the advent of new and improved types of machines. (d) To compute the excess-profits-tax liability of the petitioner under sections 327 and 328 of the Revenue Act of 1918. (e) To allocate the proposed deficiency in accordance with the provisions of section 240(a) *3152 of the Revenue Act of 1918, and in accordance with a notice to him dated April 26, 1922. *878 2. The determination of the Commissioner - (a) That the invested capital of petitioner as at January 1, 1919, should be reduced by an additional tax liability for the calendar year 1917, determined after the close of 1919. (b) That the invested capital of the petitioner should be reduced by a proration of its tax liability for the preceding taxable year. FINDINGS OF FACT. The petitioner and the New England Collapsible Tube Co. are Connecticut corporations with principal office at New London. They are affiliated corporations within the meaning of section 240 of the Revenue Act of 1918, and filed a consolidated return for 1919. By a series of agreements entered into in 1909, L. T. Sheffield and his brother, owners of the petitioner corporation in equal interest, acquired from their mother all rights in the manufacture and sale of a trade-mark alcoholic product known as "Creme Yvette." The cost of this trade-mark as determined by the Commissioner was $46,875. Immediately thereafter, on October 26, 1909, the two brothers assigned the trade-mark to the petitioner corporation*3153 for a nominal consideration. Under the terms of the war-time prohibition act of November 21, 1918, the petitioner was prevented from manufacturing and selling "Creme Yvette" after June 30, 1919. The last sale of "Creme Yvette" made by it was on June 27, 1919. On its return of income for 1919, the petitioner claimed a deduction for a loss sustained by it arising from the abandonment of the manufacture and sale of "Creme Yvette." After consideration thereof the respondent in the determination of the deficiency proposed disallowed a portion of the claim made by the petitioner but allowed a deduction from gross income of $6,818.18 representing his estimate of the obsolescence loss suffered by the petitioner. In May, 1916, the petitioner acquired at a cost of $7,000 certain real estate improved by two frame houses on a lot adjoining the factory of the petitioner. The petitioner rented these houses from the time of purchase to some time in 1919 at $35 and $40 per month, respectively. The fair market value of the land at the date of acquisition, based upon sales of property on the street, was approximately $15 a front foot for a frontage of 100 feet, or $1,500. At the time of the*3154 purchase the petitioner had no expectation of utilizing the property for building thereon. In 1919 the petitioner, desiring to build an annex to its factory upon the land occupied by the two houses, sold the two buildings for $1,800. The purchaser removed the buildings from the site and the petitioner extended one of its buildings over the cleared site. The reasonable useful life of the buildings from the *879 date they were acquired in 1916 was 40 years. They depreciated from May, 1916, to December 31, 1918, two and two-thirds years, $366.67, on an estimated value on the date of acquisition of $5,500. The consolidated income-tax return filed for 1919 showed a net income of $54,488 and a tax due of $13,891.83. The Commissioner has determined that the taxable net income of the petitioner for the calendar year 1919 was $21,739.50, and that the taxable net income of the New England Collapsible Tube Co. for 1919 was $64,877.88. On April 26, 1922, L. T. Sheffield, president and treasurer of the two corporations, addressed a communication to the Commissioner in which he advised him: Profits taxes assessable against the group of corporations including the New England Collapsible*3155 Tube Co. and the Sheffield Dentifrice Co., should be allocated to the New England Collapsible Tube Co. The Commissioner finds the tax liability of the affiliated group for 1919 to be $28,105.94; that there was originally assessed $13,891.83; and that there is therefore a deficiency in income and profits tax of $14,214.11, which the Commissioner proposes to assert against the petitioner. OPINION. SMITH: 1. In its petition the petitioner alleges that the Commissioner has determined that the cost of the trade-mark "Creme Yvette," upon which a profitable branch of its business depended, was $46,875. This is admitted by the answer of the respondent. The evidence indicates that this was acquired by the two Sheffield brothers, who owned all of the capital stock of the petitioner and of the New England Collapsible Tube Co. in equal interest and that they turned over this business to the Sheffield Dentifrice Co. for a nominal consideration. The March 1, 1913, value of the trade-mark is not definitely shown but the value of the trade-mark was as great on March 1, 1913, as it was at the date of acquisition by the brothers. Under the provisions of the war-time prohibition act of*3156 November 21, 1918, the petitioner was prevented from manufacturing and selling the product after June 30, 1919. Its last sale of the product was on June 27, 1919. Prior to that date the Eighteenth Amendment to the Constitution had been ratified and the manufacture and sale of "Creme Yvette" could under lno circumstances be made after the early part of 1920. In these circumstances we think that any deductible loss to the petitioner upon its investment in the trade-mark "Creme Yvette" was sustained in 1919. This is in accordance with the decision of the Board in William Zakon,7 B.T.A. 687. *880 The investment of the petitioner in the trade-mark was $46,875, and it is entitled to deduct that amount from its gross income of 1919 as a loss sustained within the year. 2. The petitioner claims that the cost to it in 1916 of two frame dwellings standing upon a lot adjoining its factory was $5,500; that depreciation has been sustained upon the buildings up to January 1, 1919, of $366.67; and that when it sold the buildings in 1919 for $1,800 it sustained a loss of $3,333.33. In view of the decision upon the first point it becomes unnecessary to decide this issue, *3157 since the loss sustained on the trade-mark "Creme Yvette" is in excess of the net income claimed to have been realized by the petitioner from 1919 operations. 3. Section 240(a) of the Revenue Act of 1918 provides in part: In any case in which a tax is assessed upon the basis of a consolidated return, the total tax shall be computed in the first instance as a unit and shall then be assessed upon the respective affiliated corporations in such proportions as may be agreed upon among them, or, in the absence of any such agreement, then on the basis of the net income properly assignable to each. * * * The respondent has ignored this provision of law in the determination of a deficiency due from the petitioner. He has sought to hold the petitioner liable to the total income and profits tax due from the petitioner and the New England Collapsible Tube Co. In American Creosoting Co.,12 B.T.A. 247, we held: A corporation affiliated with another corporation under section 240 of the Revenue Act of 1918 does not lose its status as a "taxpayer" and an assessment against such corporation in the absence of an agreement that the taxes due from other affiliated corporations*3158 may be collected from it will not authorize the collection from it of taxes due from such other corporations, and a notice to it of a deficiency in taxes due from other affiliated corporations joining with it in filing a consolidated return will not authorize the filing with the Board of petitions for the redetermination of deficiencies by other affiliated corporations. The application of the same principle to the case at bar requires us to hold that any deficiency which may be due from the New England Collapsible Tube Co. may not be asserted against the petitioner. Other assignments of error made by the petitioner in its petition have either been waived or no evidence has been adduced in support of them. The Board must, therefore, consider that they have been abandoned. Motion for judgment on behalf of the respondent for the deficiency determined by him is denied. It clearly appears that the petitioner had no taxable net income for 1919, after allowing the deduction from gross income of the loss sustained upon its investment in the trade-mark "Creme Yvette." Reviewed by the Board. Judgment of no deficiency will be entered. MURDOCK dissents.