Elko Lamoille Power Co. v. Commissioner

ELKO LAMOILLE POWER CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Elko Lamoille Power Co. v. Commissioner Docket Nos. 40758, 45438. United States Board of Tax Appeals 21 B.T.A. 291; 1930 BTA LEXIS 1874; November 12, 1930, Promulgated *1874 1. In the circumstances, held that a certain instrument issued by petitioner and denominated a certificate of preferred stock does not constitute a certificate of indebtedness. 2. Amounts paid to holders of such preferred stock during the taxable years 1926 and 1927 represented the payment of dividends and do not constitute allowable deductions in computing net income. Milton B. Badt, Esq., for the petitioner. W. Frank Gibbs, Esq., for the respondent. MATTHEWS *291 These proceedings, which were consolidated for hearing and decision, are for the redetermination of deficiencies in income taxes asserted by the respondent against the petitioner of $33.82 for the year 1926 and $353.06 for the year 1927. The facts were stipulated, from which we make the following findings of fact. FINDINGS OF FACT. Petitioner, Elko Lamoille Power Co. (hereinafter referred to as the company), is a corporation organized under the laws of the State of Nevada, and is engaged in the power and light business at Elko, Nev. In its income-tax returns for the years 1926 and 1927 petitioner claimed deductions in the respective amounts of $250.50 and $2,495.25, *1875 and described such amounts as: "Miscellaneous interest, preferred stock." In auditing these returns, the respondent disallowed these items as deductions and determined deficiencies for 1926 and 1927 in the respective sums of $33.82 and $353.06. In 1925 petitioner found it necessary to secure additional capital, and preferred stock was issued. The following is a copy of an unissued certificate of the preferred stock and contains all the essential elements of the issued certificates, except in regard to the filling in of the blanks appropriate to each individual case: ELKO LAMOILLE POWER COMPANY. Incorporated Under the Laws of the State of Nevada, December 6, 1912. Seven Per Cent Cumulative Preferred Stock. Common stock $200,000.00 divided into 20.000 shares of the par value of $10.00 each. Preferred stock $80,000.00 divided into 800 shares of the par value of $100.00 each. *292 ALL STOCK FULLY PAID AND NON-ASSESSABLE. This is to certify that is the owner of fully paid and non-assessable shares of the par value of $100.00 each of the preferred capital stock of ELKO LAMOILLE POWER COMPANY, transferable only in person or by attorney upon the books of said corporation*1876 upon the surrender of this certificate. The holders of the preferred stock shall be entitled to receive, when and as declared. from the surplus or net profits of the corporation, dividends at the rate of seven per cent per annum, and no more, payable semi-annually on the first day of May and the first day of November of each year, or on such other dates as may hereafter be fixed by the By-laws or by the Board of Directors. The dividends on the preferred stock shall be cumulative and shall be payable before any dividends on the common stock shall be paid or set apart, so that if in any year dividends amounting to seven per cent shall not have been paid thereon, the deficiency shall be payable before any dividends shall be paid upon or set apart for the common stock. Whenever all cumulative dividends on the preferred stock for all previous years shall have been declared and shall have been payable and the accrued semi-annual installments for the current year shall have been declared and the Company shall have paid such cumulative dividends for previous years and such accrued semi-annual installments, or shall have set aside from its surplus or net profits a sum sufficient for the*1877 payment thereof, the Board of Directors may declare dividends on the common stock payable then or thereafter out of any remaining surplus or net profits. In the event of any liquidation or dissolution or winding up (whether voluntary or involuntary) of the corporation, the holders of the preferred stock shall be entitled to be paid in full, both the par value of their shares and the unpaid dividends accrued thereon, before any amount shall be paid to be holders of the common stock, and after the payment to the holders of the preferred stock of its par value and the unpaid accrued dividends thereon, the remaining assets and funds shall be divided and paid to the holders of the common stock according to their respective shares. The preferred stock and the common stock may be increased as provided in the articles or certificate of incorporation or any amendment thereto. The preferred stock shall be without voting power, said right being restricted to the common stock. Redeemable after 3 years at 110. In 1926 petitioner paid $250.50 to holders and owners of this stock, and in 1927 petitioner paid to such holders and owners the sum of $2,495.25. These payments were disallowed by*1878 the respondent as deductions from gross income on the ground that they represented dividends on preferred stock and did not represent payment of interest on certificates of indebtedness, as claimed by petitioner. These payments were not made by petitioner in connection with any holder of this preferred stock turning in to petitioner his stock and demanding the price paid therefor, together with interest. On July 3, 1928, the board of directors of petitioner passed a resolution which reads as follows: WHEREAS, in 1925, certain extended operations of the Company required additional capital and the borrowing of money for the purpose of said operations; and WHEREAS, this corporation had opportunity at said time to sell and dispose of additional bonds for said purpose and considered the said method and also *293 various other methods of borrowing money for the purposes aforesaid, and after due consideration, on February 2, 1925, and on February 16, 1925, pursuant to resolutions of its stockholders and directors, authorized the borrowing of $80,000.00 and the issuance of 800 shares of preferred stock of the par value of $100.00 per share, bearing interest at 7% per annum, *1879 said interest to be cumulative, and providing that the same be paid before any dividends be paid to the holders of the common stock and securing the payment of the principal and interest thereof by giving the holders of such certificates a preference as to participation in assets in the event of dissolution or winding up of the corporation; and WHEREAS, although the certificates thus issued were denominated certificates of preferred stock, the money to be raised thereby was, in all respects, in the nature of a loan and the dividends or interest to be paid thereon were, in all respects, in the nature of expense of the corporation as interest on borrowed money; and WHEREAS, at the time of the sale of said certificates, the purchasers thereof were promised and assured that they might at any time turn the said certificates in and that this Company would redeem the same at par and accrued interest; but WHEREAS, the Department of the Treasury of the United States of America, in reaching a conclusion as to the nature of the certificates, has held the oral representations made to the purchaser as insufficient to establish the liability of this corporation to redeem the same upon presentation*1880 and, through such holding, has determined that the said certificates are in fact preferred stock, and the payments thereon dividends and not interest; Now, THEREFORE, BE IT HEREBY RESOLVED: 1. That the corporation hereby ratifies, approves and confirms the oral representations made by this corporation to the purchasers of the said so-called certificates of preferred stock, to the effect that they may be redeemed at any time upon presentation and demand at par and accrued interest. 2. That these resolutions take effect as of the dates of the respective sales of any of such preferred stock. 3. That such certificates of preferred stock be deemed and are hereby declared to be certificates of indebtedness of this corporation, payable upon presentation and demand, at par and accrued interest, and that this corporation acknowledges itself obligated accordingly. In 1924 a bond issue of $100,000 was authorized by petitioner and $90,000 was sold, of which amount $15,000 was thereafter retired, leaving $75,000 outstanding and leaving $10,000 available for sale. In 1925 additional money was required for contemplated improvements and extensions in the system. Various methods of*1881 borrowing money were considered by the officers and directors of the company and it was decided that the money which was needed could best be borrowed in small amounts from consumers, which would result in an increased interest in the business on the part of such consumers. It was believed that persons thus lending money to the petitioner corporation were entitled to security and that a preferred stock would give them this security; that the interest on the loans could be paid by way of dividends on the preferred stock. The company authorized what was on its face an issue of $80,000 preferred stock, bearing 7 per cent dividends, payable semiannually, *294 preferred as to income and assets, callable after 3 years at 110. All of the sales of the preferred stock were made by the president or by the secretary of the company and in every sale it was represented, under the authority of the board of directors, that the preferred stock could be turned back to the company at any time, at par and accrued interest. The company always considered it a legal obligation to redeem the stock on such presentation, but in order that there might be no question about this, the above quoted resolution*1882 was passed by the board of directors ratifying, approving, and confirming the oral representations made by the corporation to the purchasers of the certificates of preferred stock, to the effect that they might be redeemed at any time upon presentation and demand, at par and accrued interest. Some of these certificates were thereafter presented to the company for payment and were actually paid at par and accrued interest. The entries in the books of the company for 1926 record the moneys paid to the preferred stockholders as interest paid, and such payments were deducted as a business expense in the company's income-tax return for 1926. OPINION. MATTHEWS: The sole question presented for consideration is whether the amounts paid to holders of the preferred stock were in fact dividends, or were interest on borrowed money. The circumstances surrounding the transaction have been set out in the findings. It must be determined whether the transaction constituted a loan or an investment in preferred stock. It is the generally accepted rule that the name given to the instrument is not conclusive of its character and that inquiry may be made as to its real character, but it is*1883 not lightly to be assumed that parties have given an erroneous name to their transaction. ; . Its true nature will be determined by looking to its terms and its legal effect. . It will be noted that the certificate in question is issued in the ordinary form of a preferred stock certificate; that it provides for dividends at the rate of 7 per cent per annum, payable semiannually, from the surplus or net profits of the corporation, such dividends to be cumulative; that it is redeemable after 3 years at 110; that it provides for no share in additional profits over the fixed rate of 7 per cent; that the preferred stockholders have no right to vote; and that in the event of liquidation, preferred stockholders are entitled to be paid in full, both the par value of their shares and the unpaid dividends accrued thereon, before any amount is paid to the holders of common stock. *295 We are of the opinion that there is nothing in the contract between petitioner and the preferred stockholders which takes the holders of*1884 the preferred stock out of the class of stockholders. The preferred stock entitles the holders thereof to receive dividends from the earnings of the company before a dividend is paid on the common stock, but a preference over the holders of common stock does not make them creditors. The holder of stock in a corporation, whether common or preferred, can not, by virtue of the ownership of such stock, be a creditor of the corporation. A corporate creditor is one who has loaned to the corporation money or its equivalent, usually for compensation or interest, at a fixed rate, to be repaid at a designated time or in a designated manner. The stockholder risks his money in the enterprise. The creditor assumes no such risk. As was said by the Supreme Court of the United States in : Creditors may resort to the body of their debtor's property for interest as well as principal. But these holders of preferred stock are limited, for any income or interest, to net earnings. In , we held: It will be noted that both the certificate of incorporation and the recital or contract*1885 on the face of the preferred stock certificate expressly provide that dividends on such stock are payable only from the net earnings of the petitioner. Clearly, the amounts paid in for preferred stock are at risk in the business and are a part of the capital of the petitioner. There is nothing in the written instruments evidencing the acts of the parties inconsistent with the holding that preferred stock was issued and that the preferred stockholders had claims against the assets of the corporation which were subordinate to those of creditors, but superior to the claims of the holders of common stock. Where one advances money for a business enterprise, depending upon the hazards of the business as to whether he will receive the return of his principal or receive any profit thereon, he becomes a shareholder in the transaction. It has been found that when the preferred stock was sold, it was agreed by petitioner that the holders of the preferred stock, upon demand, would be paid the par value of their stock, plus accrued interest, and it has been shown that such payments have been actually made where the holders of the preferred stock have presented their stock and demanded payment. *1886 In our opinion it is not sufficient to show that the issuance of the stock represented the procuring of a loan, secured by the assets of the company, which was callable at any time. It is provided in the instrument that the stock is redeemable after 3 years at 110, but there is nothing to indicate that the corporation would pay to the holder, upon demand, the par value plus accrued interest. There was not created any definite obligation *296 on the part of the corporation to repay a specified sum of money. Nor did the subsequent passing by the board of directors of a resolution acknowledging liability by the corporation to redeem the preferred stock at par, upon presentation and demand, change the situation which existed at the time the stock was issued and for the years involved in these appeals. At that time, the entire capital, including that paid in for both common and preferred stock, and without regard to any understanding between petitioner and the preferred stockholders, was at the risk of the business and subject to and liable for the debts of petitioner. In *1887 , where it was held that certain instruments denominated preferred stock were in fact preferred stock and not certificates of indebtedness, it was said, "There is nothing in the instrument to give the strained construction that the taxpayer would put upon it. If it really were intended that the transaction was to secure money as a loan, it would have been just as convenient and easy to issue bonds or notes to carry out such intention." See also ; . Petitioner has placed reliance in the case of , in which the Circuit Court of Appeals for the Seventh Circuit reversed our decision, reported at . It was held that a taxpayer who borrows money at usurious rates may, as against the Government, disclose the true relationship of debtor and creditor, where it appears that the relationship of the parties was incorrectly described in a document executed to circumvent the usury laws of the State in which the transaction took place. *1888 This decision is based upon the particular facts under which the loan was made and may not be extended to cover a situation where no question is involved with respect to usury. Each case must be determined by its own facts. In the instant case, additional money was needed by petitioner. It could have been raised in several different ways, but it was decided by the officers of the company to issue preferred stock. No provision was made for the retirement of the preferred stock at a definite date or in a designated manner. Dividends were made payable only from the surplus or net profits of the corporation. The provisions of the contract between petitioner and the preferred stockholders are not inconsistent with the holding that the relation of the parties was what they said it was in their written instruments. Nor is the terminology of the company's bookkeeper determinative of the legal character of the accounts. ;; *1889 . The preponderance of legal authority is in support of the Commissioner's conclusion that the dividends paid by petitioner upon its shares of preferred stock *297 outstanding during the years 1926 and 1927, were not the equivalent of interest paid on indebtedness, and, therefore, that the amount of dividends paid upon such stock is not a legal deduction from gross income. See ; . Reviewed by the Board. Judgment will be entered for the respondent.