Chicago Pneumatic Tool Co. v. Commissioner

CHICAGO PNEUMATIC TOOL CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Chicago Pneumatic Tool Co. v. Commissioner Docket No. 29677. United States Board of Tax Appeals 21 B.T.A. 569; 1930 BTA LEXIS 1835; December 5, 1930, Promulgated *1835 In order to enable its foreign subsidiaries to meet competition in the sale of goods and thereby to continue the outlet of the petitioner for its goods in the foreign market through such means, the petitioner found it necessary in 1923 to adjust and reduce the prices of inventory on hand representing goods already paid for, making a refund for the difference through credits on unpaid bills. Hold that the credits representing such payments are not capital contributions, but constitute deductible loss. George E. H. Goodner, Esq., and F. C. Rohwerder, C.P.A., for the petitioner. F. R. Shearer, Esq., for the respondent. TRAMMELL *569 This proceeding is for the redetermination of a deficiency in income tax of $27,884.17 for 1923. The only matter in controversy is the deductibility in determining taxable net income of an amount *570 of $190,000 representing credits allowed by the petitioner during the taxable year to foreign subsidiary corporations as a result of an agreement made in that year and based on purchases made by the subsidiary corporations from the petitioner prior to the taxable year. FINDINGS OF FACT. The petitioner*1836 is a New Jersey corporation with its principal office in New York City. It filed its corporation income-tax return for 1923 with the collector of internal revenue for the third district of New York. Since incorporation the petitioner has been engaged in the manufacture and sale of compressed air tools, electric tools, air compressors, Diesel engines and similar products. The petitioner is and throughout the taxable year was the owner of all the capital stock of the Consolidated Pneumatic Tool Co., Ltd., of England, hereinafter referred to as the English company, and the Canadian Pneumatic Tool Co., Ltd., of Canada, hereinafter referred to as the Canadian company. The English and Canadian companies are, and in 1923 were, principally engaged in the business of distributing, as selling agencies, the manufactured products of the petitioner. Prior to the year beginning January 1, 1923, it was the consistent practice of the petitioner to bill its shipments to the foreign subsidiary corporations at the domestic selling price, which was the list price at which the petitioner sold its products in the United States less a discount and was in excess of cost to the petitioner. The*1837 amount of such billings was included by the petitioner in its gross sales for the purpose of computing gross income for prior years. The petitioner's annual shipments to the English company increased from about $100,000 in 1902 to about $1,000,000 in 1918 or 1919, when they were at their maximum. Following the World war the petitioner's shipments abroad suffered a severe decline, dropping to about $100,000 in 1921. Conditions were such that it was no longer possible for the English company to market the petitioner's products at a profit under the method of billing theretofore followed. In 1921 the English and Canadian companies requested a reduction in billing prices to them on the ground that they could not longer compete under the old method of billing and under the new conditions following the war and that to continue under the old method meant bankruptcy and extermination for them. The petitioner did not accede to these requests at once. Believing the English company had inadequate supervision, and for the purpose *571 of ascertaining just what the petitioner should do in order to get back its volume of business, the petitioner's president, H. A. Jackson, selected*1838 one H. B. Megary and sent him to London to take charge of the English company as its managing director. The English company operated branches in other countries, including Spain, Belgium, Holland, Italy, India, Australia, and South Africa. Megary, after straightening out things at the London office, went to India and South Africa. After studying the whole situation he returned to the United States and reported to Jackson that if the English company was to continue in existence, with conditions as they then existed, it would be necessary for the petitioner to change the method of billing and to bill the English company at cost. After discussions extending over a period of a year or two, Jackson, about the middle of 1923, agreed to Megary's proposal and gave instructions to the petitioner's accounting department to change the billing to cost on all goods shipped thereafter. With respect to goods shipped in 1923 prior to the acceptance of the proposal, it was agreed that the petitioner would allow the English company a credit representing the difference between the cost of such goods to the petitioner and the amounts at which they had been billed to the English company. Such credit*1839 was made on the books of the petitioner and was allowed as a deduction by the respondent in determining the deficiency here involved. With respect to the English company's inventory at January 1, 1923, it was also agreed that the petitioner would allow that company as a credit an amount representing the difference between the cost to the petitioner of such goods and the amounts at which they had been billed to the English company. About the same time a similar agreement was made with the Canadian company, except that the bills to that company were to be on a cost-plus basis, the excess above cost being certain charges made to conform to the Canadian tariff laws. In accordance with the agreements the petitioner, prior to December 31, 1923, credited the English company with $170,000 and the Canadian company with $20,000, being the amounts which the petitioner computed as the difference between the cost to it of the goods in the inventories of the respective companies on January 1, 1923, and the amounts at which such goods had been billed to the companies. The total of these two amounts, $190,000, was charged to expense on the books of the petitioner and deducted from gross income*1840 on its income-tax return for 1923. The deduction so taken was disallowed by the respondent in determining the deficiency. The petitioner's purpose in making the new arrangement with the English and Canadian companies was to enable them to meet competition in marketing the petitioner's goods abroad, thereby *572 continuing to afford the petitioner foreign outlets for an important amount of its products. The petitioner deemed it necessary to retain such outlets for its products, which had been an important factor in the past, in order to maintain volume of production and thereby help to absorb the overhead or "burden" in connection with its domestic business. The English company was faced with extermination or bankruptcy unless some rearrangement was made and at that time owed the petitioner between $300,000 and $400,000 on the basis of the old method of billing. This company had an inventory on January 1, 1923, of approximately $1,000,000. In making the new arrangement the question of taxation was not considered. The annual volume of business with the English company under the new arrangement gradually increased so that in 1929 it was close to the maximum volume prior*1841 to 1923. This has absorbed 17 to 18 per cent of the petitioner's overhead expenses which otherwise would have increased costs and reduced its profits. While there is a close business relationship between the petitioner and the English and Canadian companies so far as the determination of policies is concerned, the petitioner does not dictate to them as to business operations. The condition of the English company has materially improved since 1923 and in 1929 made a profit of about $10,000. While the English company is "not a source of revenue to the petitioner," it is "a source of outlet" for the petitioner's goods and the petitioner is perfectly satisfied if the company will continue on that basis. Prior to 1923 the petitioner conducted its business in France through an independent French company over which the petitioner had no control and in which it and the English company had no stock ownership. The French company was confronted with the same problem as the English company. It could not operate profitably with the petitioner's products on the basis of the old method of billing, and also made demands insisting upon lower prices or larger discounts. The petitioner did*1842 not accede to these demands of the French company, but caused to be incorporated its own company to handle its products in France. This new company was incorporated at considerable expense and has been run at a loss, but is maintained solely for the purpose of providing the petitioner with an outlet for its products and absorbing a portion of its "burden." OPINION. TRAMMELL: The petitioner contends that the amount of $190,000 representing $170,000 credited to the English company, and $20,000 credited to the Canadian company, in 1923, as the difference *573 between the cost to the petitioner of the merchandise in the inventories of the respective companies on January 1, 1923, and the amounts at which such merchandise had been billed to the companies, is an allowable deduction in determining its taxable net income for 1923, either as a business expense or as a loss. The respondent denies that the amount is deductible on either basis, and contends that it was in the nature of a capital expenditure made by the petitioner for the purpose of protecting and enhancing the investment already made by the petitioner as stockholder of the two companies. It was conceded at the hearing*1843 that the cost of the goods to the foreign subsidiaries on hand and included in inventory in January, 1923, had already been paid to the petitioner. We must recognize the fact that the petitioner owned all the stock of the foreign subsidiaries and that as between the three companies it made no difference whether the petitioner retained the amount or whether the foreign subsidiaries had the benefit thereof. Taking the companies together, it made no difference. However, we are determining here, as we must do, the income of the petitioner as a separate corporation. While it was affiliated with the foreign corporations, it was neither required nor permitted to file a consolidated return with them for the year involved and neither the respondent nor the petitioner contends that this case presents a situation where the accounts should be consolidated. That issue is not involved in the case. We must also recognize the fact that by treating the corporations as entirely separate taxpayers, the petitioner has received income and has paid tax thereon by virtue of the sales to the foreign subsidiaries on the basis of the sales prices existing, as if it were an unrelated company. We can*1844 not determine tax liability of the petitioner by treating the corporations as separate for determining income without also treating them in the same way for purposes of deductions. If the amount involved would be deductible as an ordinary and necessary expense or as a loss as between entirely separate and unrelated businesses, it should not be classified differently in this case because of the fact of affiliation, when no consolidated return was required or permitted and the taxpayer did not have the benefit of consolidating the accounts when losses of the foreign subsidiaries could be considered in determining the taxable income of the group. It is contended by the respondent that the transaction amounted to a contribution to, or additional investment in, the capital of the foreign companies. It is of course true that the amount did add to and increase the surplus of the foreign corporations, but, on the other hand, if it were in fact an ordinary and necessary expense or a *574 business loss, where the returns or the accounts are not permitted to be consolidated, that fact would not be material here. It is only natural that amounts paid by one corporation may add to*1845 the surplus of the receiving corporation. We are concerned here with the paying corporation and if the amount is an ordinary and necessary expense or a business loss, on its part, it makes no difference that it adds to the surplus of the corporations receiving the payment. This case may be distinguished from cases where the principal stockholder cancels an indebtedness owing by a corporation to him, which we have held to be in the nature of a capital contribution and not allowable as a deduction. The indebtedness for the goods involved here had already been paid. The petitioner in effect paid out money to the foreign corporations. This payment merely took the form of a credit on what was then owing. It was thus not a cancellation of indebtedness, but a payment. This case is also distinguishable from cases involving assessments against stock. Such cases involve only the corporation to which the payments are made and not the business of the separate stockholders, but here the payment was made by the petitioner for its own business purposes and on account of its own necessities. It was not merely for the use and benefit of the corporation to which paid. Any benefit to the*1846 subsidiary corporation was merely incidental. If the corporations to which the amounts were paid were alone involved and it was merely for their benefit and purposes that the payment was made, a different situation would be presented. Under such circumstances it might well be that the amount might be considered a capital contribution. The testimony is that the foreign companies involved could no longer carry on business on the basis of old prices due to the competition of foreign goods. During 1923 the foreign companies could not compete with other companies on the price at which the goods had been paid for. The English and Canadian companies were headed for bankruptcy. They could not make a profit and there was serious question as to whether they could pay the petitioner the amount owing, which was between $300,000 and $400,000. The petitioner desired to have the foreign markets afforded by the English and Canadian companies as a continuing outlet for its goods and the payment by way of a credit was made of the difference between old prices and the new for this business purpose. This was not a voluntary payment or contribution to the foreign corporations. The petitioner's*1847 president, who made this adjustment, testified that it was absolutely necessary and was the "bitterest pill" he ever had *575 to swallow. Subsequent events showed the wisdom of the action from a business standpoint. It was not a mere voluntary transfer of surplus from one corporation to another, but a payment for what was considered, from all existing facts, a business necessity. We can see no difference in principle between this situation and that existing in the case of , where an individual, in order to assure the continuance of the business being conducted by a corporation of which he was a stockholder, gave up certain shares of his stock to bankers. This was held to be a deductible loss. There is no real difference between paying over the stock to the company, itself, for the purpose of paying the bankers, than paying the bankers direct. See , and . The foreign corporations had their own separate income, their own separate capital, separate management, and their own businesses. The petitioner*1848 considered it necessary for these companies to continue to have income and to carry on their businesses and to be able to sell goods in competition with other companies engaged in the same business in foreign countries. The evidence is uncontradicted that they could not do so at the prices at which goods had been billed prior to 1923 and it was just as necessary to reduce the prices of inventories on hand for this purpose as it was to reduce the prices of goods sold in 1923. We see no real difference in principle between the goods sold in 1923 which had already been billed but not paid for at the existing prices, and goods sold in the previous years remaining on hand in 1923 which had been paid for. In one case, in order to make the adjustment for the substantial reasons testified to, it was necessary to make a refund of a portion of the price paid. In the other case, where the goods had not been paid for, the prices were reduced and the accounts credited, yet in the latter situation the respondent has not raised any objection. Our decisions also support this view. See *1849 ; . The adjustment, where the goods had been paid for, necessitated an outlay, a payment, however, which was effected by credits on other bills. The same motive impelled the action in both situations. The substance of the transactions was that the petitioner found it necessary to sacrifice a part of the profits it had already made, thereby sustaining a loss of income already received in order to assure the continuance of an outlet for its products in the manner considered best for its business interests. *576 It may well be that all would not agree as to the wisdom or necessity of the course pursued by the petitioner. What one may consider necessary to be done, another might not, but there is no requirement that the method pursued be recognized generally as the best or that an expenditure be absolutely essential in order to be deductible as a loss incurred in business or as an ordinary and necessary expense. It may well be that the petitioner could have permitted the foreign corporations to become hopelessly involved in debt, or to have gone into bankruptcy and*1850 assumed all its debts and carried on business in an entirely different way. It could have paid its expenses direct, or, when its capital was impaired or exhausted, could have replenished it. Owning all the stock of the foreign corporations, the petitioner undoubtedly could have handled its foreign business differently from what it did, but it considered the method adopted most suitable to its business purposes. We are not to determine whether a business should be conducted in one way in preference to another, but being conducted in the manner adopted, we can not say that an expenditure was of a capital nature merely because the same result might in the end have been accomplished through the means of such an expenditure or that a loss sustained is not deductible because all would not agree as to the real necessity of sustaining it. We must consider what was actually done. The fact that this payment was made as it was may have and doubtless did prevent the necessity of a further payment into the capital or the direct payment of debts, but this fact does not make it of a capital nature and does not prevent the deduction allowed by statute for a loss actually sustained. The facts*1851 here, in our opinion, bring the case within the principle of , where we allowed as a loss a reduction in price of goods sold made necessary by existing conditions. From a consideration of all the evidence, we think that the expenditure involved, which took the form of credits, constituted a deductible loss in 1923 when made. Reviewed by the Board. Judgment will be entered under Rule 50. STERNHAGEN, TRUSSELL, ARUNDELL, and MURDOCK concur in the result only. SMITH SMITH, concurring: I concur in the result reached, but believe that the $190,000 in question should be allowed as a deduction from gross income as an ordinary and necessary expense of operation and not as a loss sustained. VAN FOSSAN and MATTHEWS dissent.