Reid Ice Cream Corp. v. Commissioner

REID ICE CREAM CORPORATION, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Reid Ice Cream Corp. v. Commissioner Docket No. 37051. United States Board of Tax Appeals 24 B.T.A. 823; 1931 BTA LEXIS 1588; November 17, 1931, Promulgated *1588 TRANSFEREES. Petitioner acquired for cash all of the assets of the taxpayer corporation and as an additional consideration agreed in the contract of purchase to assume the debts of the taxpayer, including taxes arising from matters transpiring subsequent to the calendar year 1923. The taxpayer, on receiving the cash consideration, immediately distributed this money to its stockholders and ceased business. Held, that petitioner having as an incident of the transfer of this property assumed the liability for payment of income tax of the transferor for 1925, such liability may be assessed and collected under section 280 of the Revenue Act of 1926. D. B. Priest, Esq., for the petitioner. B. U. Steele, Esq., and Miles J. O'Connor, Esq., for the respondent. TRAMMELL *824 By this proceeding petitioner appeals from the proposed assessment and collection by respondent of an asserted liability in an amount of $28,371.34 under section 280 of the Revenue Act of 1926 as representing unpaid income taxes of the Polar Products Company for the calendar year 1925, liability for the payment of which respondent contends was assumed by petitioner as*1589 one of the considerations for the transfer to it of all of the assets of that company. The only issue raised it the existence of the liability proposed for assessment. For purposes of hearing this proceeding was consolidated with those of John H. Humbert, Docket No. 37052, and Arthur M. Rein, Docket No. 37053, decided this date, wherein the same unpaid tax liability of the Polar Products Company is proposed for assessment against those individuals as liabilities imposed upon them as stockholders of that company to whom were distributed in liquidation the consideration paid by this petitioner for the assets of that company. FINDINGS OF FACT. The corporate petitioner, Reid Ice Cream Corporation, was organized under the laws of Delaware and with principal place of business in New York City. On February 7, 1925, by contract jointly executed by it and the Polar Products Company, Inc., a New York corporation, it agreed to buy and that company agreed to sell and convey all of its assets for the sum of $337,500, payable $5,000 in cash and the balance upon the transfer of the assets. Those portions of the contract pertinent to the issue here presented are as follows: The Purchaser*1590 assumes the payment of the liabilities of the Seller except as hereinafter stated. The Seller represents that the balance sheet set forth in the report of Peat, Marwick, Mitchell & Co. as of November 30, 1924, correctly represents the financial position of said company as of said date, and that the company owns all of the assets set forth in said balance sheet, free from all liens and encumbrances of every kind, except as stated in said report, and that there are no liabilities of said company other than as stated in said report, except such as may have occurred in the ordinary and routine operation of the company since the date of said balance sheet. * * * The Seller hereby assumes and agrees to pay all taxes which are now due for any matter prior to January 1, 1924, and this is expressly understood and *825 agreed to mean and include taxes of any nature whatsoever that the Seller may at any time hereafter be called upon to pay by reason of any matter occurring prior to January 1, 1924. * * * Upon the closing of title hereunder and the delivery of the assets and the receipt of payment therefor, the Seller agrees to take such corporate action as may be necessary*1591 to go into voluntary dissolution. On February 16, 1925, the transaction provided for by the above contract was closed, conveyance of the assets to petitioner by the Polar Products Company being made, and petitioner paid the full consideration called for and delivered to the Polar Products Company an agreement of indemnity executed by it and reading as follows: KNOW ALL MEN BY THESE PRESENTS, that the consideration of the assignment and conveyance on February 16th, 1925, by POLAR PRODUCTS CO. INC., a New York corporation, (hereinafter termed the Company) to REID ICE CREAM CORPORATION, a Delaware corporation, of all of its assets and business, said REID ICE CREAM CORPORATION hereby assumes and agrees with the Company to discharge all liabilities of the Company existing on this date, and covenants and agrees to indemnify and hold harmless the Company against any liabilities to which the Company is subject and against any claim made or action begun against the Company, provided, however, that said REID ICE CREAM CORPORATION shall in no event be liable for the payment of any taxes which are now due for any matter prior to January 1st, 1924, and this is expressly understood and agreed*1592 to mean and include taxes of any nature whatsoever which the Company at any time hereafter be called upon to pay by reason of any matter occurring prior to January 1st, 1924, said tax liabilities for all matters prior to January 1st, 1924, being assumed by certain stockholders of said POLAR PRODUCTS CO. INC. The assets transferred to petitioner by the Polar Products Company were all of the assets of that company, including its cash on deposit, and immediately upon the conclusion of this transaction and the receipt of the $337,500 in payment, this sum was deposited by it in a separate bank account and distributed on the following day to the holders of its common and preferred stock pro rata, the company then ceasing business of any character. No part of the consideration paid by the petitioner for the assets of the Polar Products Company was distributed to petitioner or its stockholders. On May 15, 1925, petitioner prepared and filed for the Polar Products Company an income-tax return covering the calendar year 1924, and paid the tax due thereon. On May 15, 1926, the petitioner prepared and filed an income-tax return for the Polar Products Company for the period from January 1*1593 to February 16, 1925. The tax as computed thereon amounted to $28,371.34. This return was executed by the individuals who were officers of the Polar Products Company at the time of the transfer of its assets. There was included in income shown by *826 this return a profit from the sale of the taxpayer's assets to this petitioner of $232,077.33. The total gross income reported was $257,359.85, and the deductions against this incident to the operations of the company for the period January 1 to February 16, 1925, amounted to $39,118.75, the tax being computed upon a net income of $218,241.10. The tax shown upon this return is still unpaid, it having been assessed against that taxpayer and a warrant for distraint issued by the collector of internal revenue for the first district of New York, which warrant was returned unsatisfied for the reason that no property could be found. OPINION. TRAMMELL: No question is raised by petitioner as to the correctness of the amount of the unpaid income taxes of the Polar Products Company, the only issue raised being as to the existence of a liability on its part as transferee of the assets of that company. Petitioner contends that*1594 the contract under which these assets were acquired and the agreement of indemnity given the seller did not place upon it a libility to pay this tax due upon income accruing to the seller from the sale of these assets. It is insisted by petitioner that the debts of the selling corporation which it is obligated to pay are only such debts as arose through the usual and customary operations of the company in transaction of its business. Petitioner further contends that even though the debt in question was one for which it was obligated under its contract, it is a liability under contract and not as a transferee and is not such a liability as is contemplated by section 280 of the Revenue Act of 1926. In the distribution made by the transferor of the cash consideration received, no part thereof was received by petitioner or its stockholders. It follows that no liability exists on its part for the unpaid debts of the transferor and arising merely from the receipt of the assets by it and distribution of the cash consideration by the seller. *1595 . If it has a liability, it is one specifically assumed and upon this point we do not agree with petitioner's contention that a liability assumed by contract in acquisition of assets is not a liability as transferee in contemplation of section 280 of the Revenue Act of 1926. We can see no distinction so far as the liabilities contemplated by that section are concerned, between one attaching to transferred property by reason of the circumstances of the transfer and one attaching by reason of specific agreement as a condition of such transfer. In fact, if petitioner has agreed to pay the income tax for 1925 as one of the considerations for the tranfer of the taxpayer's assets, it has not *827 paid the full consideration until it satisfies such obligation and may not, until such condition is met, claim immunity from liability as a purchaser for value. The issue here presented appears to us to turn upon whether this petitioner has in fact assumed a liability for the Polar Products Company income taxes for the calendar year 1925, including such portion of that tax as may have accrued by reason of the receipt by that*1596 corporation of income from the sale of its assets. The determination of this question is by ascertainment of the actual intent of the parties as evidenced by the contract of purchase and sale and the contract of indemnity, considered together and in the light of the conditions which they were executed to meet. ; . Petitioner's counsel calls our attention to certain excerpts from these agreements as indicating a limitation upon the liability for debts assumed by petitioner beyond the specific limitation set out in respect of tax liabilities of the Polar Products Company for periods prior to the calendar year 1924, and were we to consider these portions of the contracts alone there would be weight in petitioner's contention. However, when the two instruments are considered as a whole, we must reach the conclusion that the agreement of the parties as evidenced thereby was that the seller or its stockholders would pay all taxes in respect to transactions prior to the calendar year 1924, and that the purchaser would pay all liabilities, *1597 including income taxes, arising out of matters transpiring in the year 1924 and that portion of the year 1925 beginning on January 1 and ending on the date the selling corporation ceased to do business, the contract contemplating that this should immediately follow the transfer of the assets and receipt of the consideration, and the record shows that it did so follow, the only additional act of the selling corporation being the distribution to its stockholders of the proceeds of the sale. It must have been apparent to the parties to this agreement that the seller, before the cessation of business provided for, would be in receipt of the proceeds of the sale and would have to account for any income represented thereby. Petitioner insists that the tax upon such income was not intended to be assumed by it, but under the contract the exception to its general assumption of liability for debts placed upon the selling corporation only responsibility for income taxes arising from transactions prior to the calendar year 1924. Our conclusion is that under the contract of February 7, 1925, and the agreement of indemnity of February 16, 1925, petitioner assumed the payment of the tax liability*1598 here in question and, the taxpayer having ceased business and having no property, that liability is one *828 enforceable by the United States against petitioner. ; ; ; . Reviewed by the Board. Judgment will be entered for the respondent.