Mullins v. Commissioner

WILLIAM H. MULLINS, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Mullins v. Commissioner Docket No. 13917. United States Board of Tax Appeals 14 B.T.A. 426; 1928 BTA LEXIS 2976; November 24, 1928, Promulgated *2976 1. Pursuant to agreements entered into by the principal stockholder of a corporation, having control of all the stock, with the corporation and with investment bankers, a new corporation was organized; the old corporation sold its property and assets to the new corporation for cash and distributed the cash to its stockholders pro rata; the principal stockholder, for himself and other stockholders, pro rata, purchased from the new company common and preferred stock for cash and sold the preferred stock at a discount to the bankers for cash; the bankers purchased from the new company common stock for cash and resold the same in the market. Held, the transaction was not an exchange of stock in the old corporation for cash and stock in the new corporation; it was not an exchange of property for other property within the meaning of section 202(b) of the Revenue Act of 1918. 2. The purchase by the old stockholders of stock in the new corporation, however advantageous, resulted in no taxable income to the stockholders. The fact that the purchase was incidental to a plan of reorganization of the old corporation does not render the transaction taxable as an exchange. *2977 Henry J. Richardson, Esq., and C. W. Dudley, Esq., for the petitioner. Maxwell E. McDowell, Esq., for the respondent. VAN FOSSAN *426 This is a proceeding for the redetermination of the income taxes for the calendar year 1919. The Commissioner has determined a deficiency in the sum of $513,631.02, of which $443,848.87 is contested. It is alleged that the Commissioner erred (1) by including in net income the sum of $966,732, representing the alleged value of 24,788 shares of the common stock of the Mullins Body Corporation, at $39 per share, acquired by the petitioner in 1919; and (2) by deducting from income the sum of $181,500, representing a loss upon the alleged sale of 5,500 shares of said stock. FINDINGS OF FACT. Petitioner is an individual, a citizen of the United States and a resident of Salem, Ohio. On July 24, 1919, and prior thereto, he was the president and principal stockholder of the W. H. Mullins Co., a corporation organized and then existing under the laws of Ohio, hereinafter called the Old Company. On or about July 22, 1919, the Mullins Body Corporation, hereinafter called the New Company, was incorporated under the laws*2978 of New York for the purpose of acquiring the property and assets, *427 and continuing the business, of the W. H. Mullins Co. It was incorporated with an authorized capital of 10,000 shares of preferred stock, par value $100 per share, and 100,000 shares of common stock, no par value. At the time of incorporation the issue of common stock was limited to 70,000 shares. Petitioner became president of the corporation upon its organization. The sale, conveyance and transfer of the assets, property and business of the Old Company to the New Company was completed on July 24, 1919, pursuant to agreement theretofore entered into. At that time, and prior thereto, petitioner owned 1,858 shares of the total outstanding capital stock (3,000 shares) of the Old Company, and had complete control of all the stock. The other stockholders, for the purpose of completing this transaction, had theretofore turned over their stock to the petitioner with full authority to deal with as he saw fit. It was understood by the stockholders of the Old Company that they would receive their pro rata share of the benefits or proceeds derived from the transaction. On July 9, 1919, the petitioner, acting*2979 as trustee for the New Company to be thereafter organized, entered into the following agreement with the Old Company: AGREEMENT dated July 9, 1919, between THE W. H. MULLINS COMPANY, an Ohio corporation having its principal place of business at Salem, Ohio, hereinafter called the old company, party of the first part, and W. H. Mullins, as trustee for a new corporation about to be organized under the laws of the State of New York with the name Mullins Body Corporation or other similar name, hereinafter called the new company, party of the second part, WITNESSETH: In consideration of One Dollar by each party to the other paid, receipt whereof is hereby acknowledged, and in consideration of the terms, promises and stipulation herein contained the parties have agreed as follows: The old company agrees to sell and deliver and the new company agrees to take and pay for the entire property and assets, including the good-will, of the old company as a going concern as shown on and upon the basis of the balance sheet of the old company at the close of business May 31, 1919, hereto annexed and made a part hereof and marked SCHEDULE A, save and except only those assets appearing on SCHEDULE*2980 A as "other assets" in the sum of $97,014.49, subject only to current liabilities accruing from June 1, 1919. The old company assumes and agrees to pay and discharge out of its "other assets" and its surplus all the debts and liabilities of the old company accrued at the close of business May 31, 1919, including all such liabilities shown on SCHEDULE A and including all income, war and excess profits taxes that may be assessed or assessable against earnings down to June 1, 1919, and all income, war or excess profits taxes that may be assessed or assessable upon the sale of assets herein agreed to be made. The purchase price is $1,750,000 in cash and the obligation of the new company with interest at 5 per cent per annum to pay to the old company the sum of $224,093.88 at times and in a manner to be therein specified, the said obligation representing principally the earnings of the old company accrued from January 1, 1919, to June 1, 1919, allowed to the old company upon this sale, and an *428 adjustment of sundry items of assets and reserves. The purchase price is to be paid by the new company at the office of the old company at Salem, Ohio, on the 22nd day of July, 1919, *2981 at twelve noon (or at such other time and place as the President of the old company and the new company may agree upon) and upon delivery to the new company of good and sufficient deeds and transfers conveying to the new company marketable title to all such property and assets. The new company agrees that it will upon said date of transfer by a good and sufficient covenant in writing assume and agree to pay and discharge all debts and obligations of the old company accruing from July 1, 1919, to said date of transfer and will assume performance of all contracts of the old company as from the date of transfer, it being understood that until such transfer the financial and physical condition of the old company shall not be changed except in the ordinary course of business. It is understood that the new company is to pay taxes as though it had physically taken over the property specified herein on June 1, 1919, and if as a result of having taken over said property at a later date the new company is required to pay a less amount of taxes than if it had taken same over on June 1, 1919, it is agreed that the new company shall pay to the old company the amount of such saving in taxes. *2982 This agreement is conditioned on the same being approved by the Board of Directors of the old company and adopted at a meeting of its stockholders to be called for the purpose of considering the same in accordance with the laws of the State of Ohio. The trustee assumes no personal liability for the performance of this agreement. IN WITNESS WHEREOF the old company has caused duplicates of this agreement to be signed by its President thereunto duly authorized and its corporate seal, attested by its Secretary, to be hereunto affixed and W. H. Mullins as trustee in behalf of the new corporation has executed this agreement the day and year first above written. THE W. H. MULLINS COMPANY, By W. H. MULLINS (Signed) President. Attest: C. C. GIBSON. (Signed) Secretary. W. H. MULLINS (Signed) As Trustee. The stockholders and directors of the Old Company, by appropriate resolutions adopted at special meetings duly called and held on July 15, 1919, for the purpose of considering the above-mentioned agreement, adopted the agreement and authorized, ratified, confirmed and approved the execution thereof by its officers on behalf of the company. At the same*2983 time the officers were authorized and empowered to do any and all things and to issue any and all instruments necessary or proper in their judgment to carry out the terms of the agreement. The officers were further authorized and empowered To determine in their discretion all questions incident to the distribution and apportionment among the stockholders of this company (the Old Company) of the cash and other proceeds to be received by this company in consideration of the sale of its properties and assets and all other questions and matters on or about the premises, all acts and determinations by said officers pursuant to the authority now conferred being hereby ratified, confirmed and approved. *429 On July 9, 1919, petitioner entered into the following agreement with Hornblower & Weeks, bankers and brokers of New York City, hereinafter called the bankers: AGREEMENT dated July 9, 1919, between HORNBLOWER & WEEKS, bankers and brokers of No. 42 Broadway, New York, hereinafter called the bankers and W. H. MULLINS of Salem, Ohio, hereinafter called Mullins. In consideration of One Dollar by each party to the other paid and upon the terms, considerations and covenants*2984 hereinafter expressed the parties agree as follows: 1. Mullins agrees to cause to be organized under the laws of New York a new corporation with the name Mullins Body Corporation or other similar name whose certificate of incorporation, by-laws, organization meetings and minutes and issue of securities and purchase of assets shall be in form approved by counsel for the bankers; and agrees that he will subscribe for, take and pay for from such new company all of its preferred stock, namely 10,000 shares par value $100 each for cash at par, and 40,000 shares of common stock without par value at $6 per share; and agrees that as the controlling interest in The W. H. Mullins Company, an Ohio corporation, he will procure to be executed and carried out a contract between the Ohio Company and W. H. Mullins as trustee for the proposed new company bearing even date herewith and providing for the sale of certain of the assets and good-will of the Ohio company to the new company. 2. The Bankers agree that they will subscribe for, take and pay for 30,000 shares of the common stock of the new company without par value at $17 per share and that they will purchase from Mullins for $900,000*2985 cash the 10,000 shares of preferred stock of the new company for which Mullins has agreed to subscribe which sale to the bankers at said price Mullins hereby agrees to make. 3. It is agreed that payment into the new company for the stock herein agreed to be subscribed for and the aforesaid payment to Mullins shall be simultaneous with the transfer to the new company of the assets of the Ohio company. IN WITNESS WHEREOF the parties have executed this agreement the day and year first above written. (Signed) HORNBLOWER & WEEKS. (Signed) W. H. MULLINS. The aforesaid agreements were thereafter carried out in full and completely performed. The New Company was duly organized on or about July 22, 1919. On the same day petitioner, acting for himself and all stockholders of the Old Company, by letter addressed to the New Company, offered to subscribe to all the preferred stock (10,000 shares) at $100 per share, and to 39,995 shares of the common stock at $6 per share, and to pay therefor $1,239,970 in cash (5 shares of common stock were held as qualifying shares of directors, and apparently were paid for by the petitioner, thus fulfilling his agreement with the bankers to purchase*2986 40,000 shares of the common stock). This offer was accepted by the New Company at the first meeting of its directors held in July 22, 1919, and the officers of the company were directed to issue certificates for said shares to the *430 petitioner upon payment of the required sum. The bankers subscribed to the remaining 30,000 shares of common stock of the New Company at $17 per share. The entire transaction was completed on or about July 24, 1919. Petitioner, acting for himself and all other stockholders of the Old Company paid $1,239,970 in cash to the New Company, having borrowed the funds for the purpose from the National Bank of Commerce of New York City, and received from the New Company in consideration thereof certificates for 10,000 shares of preferred stock and 39,995 shares of common stock. The bankers paid $510,000 in cash to the New Company and received in consideration thereof certificates for $30,000 shares of common stock. Thereafter the bankers purchased from the petitioner for $900,000 in cash the 10,000 shares of preferred stock of the New Company, par value $100 per share, for which the petitioner, representing himself and other stockholders of the*2987 Old Company, had paid $1,000,000 in cash. By deed dated July 24, 1919, and bill of sale dated July 24, 1919, both in proper form and duly executed, the Old Company conveyed, assigned and transferred to the New Company all its property, real and personal, assets and business, except certain assets not material here, designated as "other assets" upon the schedule referred to and attached to the bill of sale. On the same date, and simultaneous with the execution and delivery of said instruments, the New Company paid to the Old Company $1,750,000 in cash and $224,093.88 in notes, in consideration of the property, assets and business so conveyed, assigned and transferred (said notes are not pertinent to the issues of this case and need not be considered further). At a meeting of the directors of the Old Company duly called and held on July 24, 1919, the president reported the execution of the aforesaid deed and bill of sale on behalf of the company and also the receipt from the New Company of $1,750,000 in cash and its obligation in the sum of $224,093.88. Thereupon the following preambles and resolutions were adopted: WHEREAS adequate provision has been made for the payment of*2988 all debts and liabilities of this Company and in the judgment of the Directors the distribution among the stockholders of this Company of the $1,750,000 received from the Mullins Body Corporation as the consideration for the sale and conveyance of the assets and properties of this company is proper and advisable, Now, Therefore, be it RESOLVED that this Company pay to or upon the order of its stockholders of record their pro rata share of said $1,750,000; and WHEREAS William H. Mullins is a stockholder of record and holds orders from all other stockholders of record for the payment to him of their pro rata shares of the money aforesaid; Now, Therefore, be it RESOLVED that for the purpose of making the payment above directed Robert M. Modisette, Vice President of this Company, together with William F. *431 Carpenter, the Treasurer, be authorized and directed to draw a check in favor of William H. Mullins upon the funds of this Company on deposit with the National Bank of Commerce in New York in the sum of $1,750,000. Pursuant to said resolutions the Old Company, through its designated officers, by check dated July 24, 1919, paid $1,750,000 to the petitioner*2989 for and on behalf of himself and all other stockholders of the Old Company in proportion to their stockholdings. This sum, together with $900,000 received from the bankers for the preferred stock, makes a total of $2,650,000 received by the petitioner as representative of the stockholders of the Old Company. After repaying the aforesaid loan of $1,240,000 to the National Bank of Commerce petitioner held $1,410,000 in cash, to be distributed to all stockholders of the Old Company pro rata. He also held 39,995 shares of the common stock of the New Company, purchased by him on behalf of himself and all other stockholders of the Old Company to be distributed to them in proportion to their stockholdings in said company. At or about the same time the petitioner distributed to each stockholder of the Old Company his pro rata share of the net cash distribution received by him from the Old Company. He likewise assigned and transferred to each stockholder of the Old Company his proper proportion of the 39,995 shares of the common stock of the New Company. None of said stockholders paid, contributed, or turned over to petitioner any cash or property, other than control of their stock*2990 in the Old Company, for the purchase of the stock of the New Company. Of the 39,995 shares of common stock of the New Company purchased by petitioner, 24,788 shares were acquired for and on his own behalf and were retained by him. In 1919 certain officers of the Old Company, prior to its dissolution, and certain officers of the New Company, upon its incorporation, were the same individuals, namely: President, W. H. Mullins (petitioner herein). Secretary, C. C. Gibson. Treasurer, William P. Carpenter. The common stock of the New Company was listed on the Boston Stock Exchange on July 29, 1919. Prior thereto the bankers, through their connections in various States and by means of a syndicate agreement invited subscriptions from the public and dealers in securities for the 30,000 shares of the New Company common stock purchased by them. The entire offer was oversubscribed on the first day of the public opening and the books were immediately closed. Petitioner, under his agreement with the bankers, was prohibited from marketing or offering for sale any of the 39,995 shares of said *432 common stock purchased by him until the bankers had sold their stock and had*2991 supported the so-called secondary market therefor. Prior to listing this stock on the exchange there was some informal trading in the same, on various days between July 11 and 29, 1919 and at prices varying from 35 1/2 low to 41 1/4 high per share. The bankers sold common stock of the New Company to their retail customers on various days between July 24, 1919, and August 14, 1919, in blocks of 50 to 500 shares and at prices ranging from 26 low to 41 1/4 high per share. Further sales of this stock were made upon the Boston Exchange on various days between July 29, 1919, and November 29, 1919, in blocks of 3 to 1,000 shares and at prices ranging from 32 1/8 low to 54 high per share. The common stock of the New Company was listed on the New York Stock Exchange on October 18, 1919. In December, 1919, the New Company issued 30,000 additional shares of no par value common stock. The issue was underwritten by the bankers at $44 per share, with a prior right in the stockholders of the company to purchase said additional stock at that price. The entire issue was taken by the stockholders and the bankers and none was offered for sale to the public. None of this additional stock*2992 was subscribed for or purchased by petitioner. Petitioner did not sell any of his common stock in the New Company during the year 1919. The respondent determined that the entire transaction was one whereby the petitioner, together with other stockholders of the Old Company, exchanged stock of the Old Company for cash and stock of the New Company. He determined the value of the 24,788 shares of the New Company common stock acquired by the petitioner to be $39 per share and included the resulting amount as income in the computation of petitioner's taxable net income under section 202(b) of the Revenue Act of 1918. OPINION. VAN FOSSAN: This proceeding presents substantially only one question for determination; namely, whether or not the series of transactions as a result of which the petitioner acquired $873,260 in cash and 24,788 shares of common stock in the New Company constituted an exchange of stock in the Old Company for cash and stock in the New Company; that is, an exchange of property for other property, within the meaning of section 202(b) of the Revenue Act of 1918. Only an affirmative answer to this question necessitates a determination of the fair market value*2993 of the common stock of the New Company on the date acquired by the petitioner. The second allegation of error set forth in our preliminary statement *433 was not urged at the trial. It is merely incidental to the main issue, automatically disposed of therewith, and requires no independent consideration and determination. The petitioner contends that the 24,788 shares of common stock of the New Company were not received in exchange, or partial exchange, for his stock in the Old Company, but were purchased by him for cash. The respondent contends that the sale by the Old Company of its property and assets to the New Company, the distribution of the cash proceeds to petitioner on behalf of all stockholders pro rata, the purchase by the bankers pursuant to a prior agreement with the petitioner of preferred and common stock in the New Company, the purchase by petitioner of common stock in the New Company on behalf of all stockholders of the Old Company pro rata and the distribution by petitioner of the cash and new common stock to the stockholders pro rata, were all steps in a single plan of reorganization. In this reorganization and by means of the plan adopted, it is contended, *2994 the petitioner and other stockholders exchanged their stock in the Old Company for cash and common stock in the New Company. The gain derived from such an exchange, the respondent insists, is taxable under section 202(b) of the Revenue Act of 1918, and in computing such gain the fair market value of the common stock in the New Company must be added to the cash received. The provision of section 202(b) of the Revenue Act of 1918 relied upon by the respondent is: When property is exchanged for other property, the property received in exchange shall, for the purpose of determining gain or loss, be treated as the equivalent of cash to the amount of its fair market value, if any. It may be conceded that the purpose and plan of this transaction was a reorganization of the Old Company, but that fact is not determinative of the question here nor is it of any special significance. We are concerned only with whether or not the petitioner received 24,788 shares of common stock in the New Company, plus cash, in exchange for stock in the Old Company, within the meaning of the Act. And this question must be resolved upon what was actually done, and not the effect of what was done (*2995 , nor upon what may have been the design and purpose of the parties to the transaction (. Neither is it material that the smae result might have been obtained by some other method or plan of reorganization. In the case of , we said: It seems to us to be fundamentally unsound to determine income tax liability by what might have taken place rather than what actually occurred. Even though the practical effect may be the same in either case, the resulting tax liability may be quite different. . *434 Speaking generally, in determining what was actually done in any case, this Board will regard substance rather than form. However, material and essential facts will not be dismissed or put aside as mere matters of form simply because they are related to and are steps in a comprehensive plan of reorganization, or together constitute a method for the attainment of a single desired result. *2996 . In the instant case each step employed to bring about the ultimate result was essential to the consummation of the transaction and it can not be said that each, or any one, was not substantial. At the beginning of the transactions set forth in our findings, the petitioner possessed 1,858 shares of stock in the Old Company; at the conclusion he possessed a certain amount of cash and 24,788 shares of new stock. It does not necessarily follow, however, that the new stock was obtained in exchange for old stock. The old stock was not transferred or assigned to the New Company, and the new stock was not acquired from the Old Company. Neither company at any time acquired or owned any stock in the other. The two companies were separate and independent entities. The Old Company sold its assets to the New Company and received cash in payment. The petitioner, as agent of the stockholders of the Old Company, acquired the new stock from the New Company and paid cash for the same. As a stockholder of the Old Company he received his proportion of the cash dividend declared and distributed by that company. The fact that the petitioner*2997 promoted the reorganization and represented the interested parties in handling the details, does not alter the true character of the transactions. The sale by the Old Company of its assets to the New Company, the distribution by the Old Company of the cash dividend to its stockholders, and the purchase by the latter of stock from the New Company were separate transactions between independent entities. The fact that these several transactions together comprised a single plan of reorganization does not render them any the less separate and distinct undertakings. The nature of each transaction is determinable from the facts relating to it, and is not changed because of its association with other transactions in a larger and more comprehensive plan. In the Langenbach case, supra, there was a reorganization promoted by the taxpayer, principal stockholder of the old corporation. The taxpayer, for himself and other old stockholders, and a firm of investment bankers purchased the stock of the new corporation. The old corporation sold its assets and property to the new corporation for cash, and then distributed that portion of the cash representing surplus to the taxpayer*2998 and other stockholders as a dividend. The *435 taxpayer and other stockholders sold their old stock at par to the new corporation for cash and the old corporation was dissolved. The taxpayer contested the proposed tax upon this dividend and sale of stock on the ground that he had merely exchanged his old stock for new stock representing approximately the same interest in the same assets. The Commissioner contended that each step was a matter of substance and that a taxable gain was realized from such dividend and sale of stock, which gain he determined to be the difference between the dividend plus the sale price and the March 1, 1913, value of the old stock. It was held that the transaction was not an exchange of stock for stock and that each step was a matter of substance. It was further held that the gain as determined by the Commissioner was erroneous, that the dividend was one declared in ordinary course and taxable as such, and that the gain derived from the sale of stock was the difference between the amount received therefor and the cost or March 1, 1913, value thereof. The Board said: Here the corporation declared and the stockholder received a cash*2999 dividend, which, were it not for his voluntary contract, he had under his complete dominion. At the moment of its receipt he realized income, and what he did with it thereafter, irrespective of how soon, can not change its character at that time. * * * It is our opinion, therefore, that the taxpayer can not escape tax because the amounts received were incidental to the reorganization. Similarly in the case at bar, after the sale of all its assets, a cash dividend of $1,750,000 (apparently in liquidation) was declared by the Old Company and paid to Mullins as representative of all the stockholders. Receipt by Mullins as agent was receipt by the stockholders. To the extent, if any, that this cash distribution represented profit it is taxable. The amount of this gain is not, however, before us at this time. The case was tried solely with reference to the contention of the respondent that gain was derived on the acquisition of the stock in the New Company. What the petitioner did with the income thus received, however soon after its receipt, does not alter its character as income, nor is the character of the subsequent transaction in anywise affected by the source of the funds*3000 employed by the petitioner therein. The purchase by petitioner of new stock from the New Company with cash borrowed from the bank is no less a purchase and sale because made in anticipation of the dividend, and at or about the time the dividend was received. The respondent can not impose a tax upon the purchase of the new stock by petitioner merely because the purchase was incidental to the reorganization. The respondent cites the Langenbach case in support of his position in this case. We are unable to find any authority in that case for *436 holding this transaction an exchange of property for other property within the meaning of the 1918 Revenue Act. There we referred to the transaction as a reorganization, but we expressly held that each step was a matter of substance, that the gain derived must be determined upon each step separately and that the several steps could not be combined for the purpose of determining the amount of the gain taxable under the Act. In reaching that conclusion we rejected the taxpayer's contention that the transaction was merely an exchange of old stock for new stock. Thus, the Langenbach case, supra, is direct authority for*3001 the petitioner's contention that the transaction in the instant case was not an exchange of stock in the Old Company for cash and stock in the New Company. To look at the picture in another way, as agent of the stockholders of the Old Company Mullins borrowed $1,240,000 from the National Bank of Commerce and bought therewith 10,000 shares of preferred and 40,000 shares of common stock of the New Company. Hornblower & Weeks bought 30,000 shares of common stock in the New Company, paying $510,000 for the same. The total of these two sums, $1,750,000, represents all the funds that came into the possession of the New Company and this amount was immediately paid to the Old Company for all of its assets and business. The Old Company thereupon paid the entire sum to Mullins are agent of the stockholders in liquidation of the Old Company. Mullins also had in his hands $900,000 received from the sale of the preferred stock by him to Hornblower & Weeks, or a total, as agent of the stockholders, of $2,650,000. Out of this fund he repaid the loan of $1,240,000, leaving $1,410,000 in cash on hand. This last-mentioned sum was the actual cash distributed by Mullins, as agent, to the stockholders*3002 of the Old Company. Mullins also distributed to the stockholders their proportionate share of the common stock of the New Company purchased by him with the borrowed money. In this situation it is clear that the parties to the series of transactions so conducted the several steps thereof that there was neither an exchange of stock for stock nor of stock for cash and stock. To hold that the stockholders of the Old Company received the stock in the New Company as a part of a liquidating dividend would be to read into the transaction something neither appearing in the contracts nor proved at the hearings. We are of the opinion, therefore, that the petitioner did not acquire or receive the 24,788 shares of common stock in the New Company in exchange for his old stock, or any other property, within the meaning of section 202(b) of the Revenue Act of 1918. ; and See also ; affd., . Nor *437 was taxable income received or realized by petitioner from the purchase of stock in the New Company, however advantageous*3003 the purchase may have been. In , where it was held that stock in a corporation purchased pursuant to prior commitments or agreements was not received in exchange for property previously owned, we said: By reason of the previous agreement, the petitioner acquired 25 shares of stock in the corporation, paying therefor in cash pursuant to the terms of the agreement. This amounts to no more than a purchase of such stock pursuant to the terms of an outstanding agreement. Admittedly, the market value of the stock was much greater than the price paid, but such a purchase, however advantageous, gives rise to no taxable income. The respondent erred in adding to petitioner's taxable income for 1919, otherwise determined, any amount on account of the 24,788 shares of common stock in the New Company acquired by the petitioner. Our conclusion renders unnecessary a determination of the fair market value of the common stock of the New Company. The second allegation of error contained in the pleadings and set forth in our preliminary statement, is automatically disposed of by our decision upon the first issue and requires no separate discussion*3004 and decision. Reviewed by the Board. Judgment will be entered under Rule 50. PHILLIPS and ARUNDELL dissent.