Hervey v. Commissioner

W. R. HERVEY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Hervey v. Commissioner Docket No. 46806. United States Board of Tax Appeals 25 B.T.A. 1282; 1932 BTA LEXIS 1399; April 26, 1932, Promulgatd *1399 1. In September, 1926, petitioner invested $100,000 in a syndicate or pool for the purpose of buying certain stock, which the vendors agreed to repurchase at a specified price, and as a guaranty of their agreement deposited a like number of shares of the stock purchased with the syndicate manager. In December, 1926, the vendors, being unable to repurchase the stock, paid to the syndicate $3 per share as a "present profit * * * in the transaction"; the petitioner received $19,354.80 of the amount so paid. Held, there being no sale of the stock and no diminution of the petitioner's capital investment in 1926, he realized a profit in the amount of the distribution received in 1926. 2. In 1927 there were distributions of cash and stock, by which petitioner received $138,709.60 in cash and 2,150 shares of stock. The syndicate or pool was liquidated. Held, the excess of the amount of the cash and the fair market value of the stock over the amount of petitioner's capital investment, consituted profit in 1927. 3. In May, 1927, the duly appointed receivers for the corporation, whose stock had been dealt in by the syndicate or pool, threatened to sue petitioner for treble*1400 the amount of his profits, charging that he and his associates had violated the usury laws of the State of California. In order to avoid such a suit and in settlement of all claims that might arise against him in connection with the stock pool transaction, petitioner surrendered to the receivers all of the cash profits and stock which he had received. Held, petitioner sustained a deductible loss in the amount of the cash and fair market value of the stock so surrendered in 1927. John B. Milliken, Esq., and George H. Koster, Esq., for the petitioner. Philip M. Clark, Esq., for the respondent. SMITH *1283 The respondent has determined deficiencies in petitioner's income taxes for 1926 and 1927 in the amounts of $4,743 and $14,209.15, respectively. The petitioner alleges that the respondent has erroneously included in his income for 1926 and 1927 certain amounts representing profits from his participation in a stock pool and that if such amounts are taxable in either or both years the respondent has erroneously disallowed the deduction of a loss of the total amount thereof in 1927. FINDINGS OF FACT. The petitioner is an attorney*1401 residing in Los Angeles, California. For a good many years he has been interested in banking and finance. In the latter part of September, 1926, the petitioner was approached by some of his friends and business associates to participate with them in a syndicate or pool which they proposed to organize for the purpose of acquiring a million dollars worth of stock of the Julian Petroleum Corporation. The Julian Petroleum Corporation was the largest of a group of several corporations for which plans for consolidation were then under way. Practically all of its assets had been transferred to the California-Eastern Oil Company in exchange for its shares of stock. One of those interested in organizing the pool was Motley H. Flint, who was a vice president of the bank with which the petitioner was then connected and who had considerable dealings with the *1284 Julian Petroleum Corporation in connection with its finances. The petitioner was informed by Flint, who had conferred with S. C. Lewis, president of the Julian Petroleum Corporation, that the purchase and temporary retirement from the market of a million dollars worth of the Julian Petroleum Corporation stock by the*1402 syndicate would stabilize its value, thereby aiding the corporation to carry out its reorganization plans, and at the same time yield the syndicate members a good profit on their investments. The stock of the Julian Petroleum Corporation at that time was fluctuating violently on the Los Angeles and San Francisco Exchanges within a price range from $6 to $35 a share. Lewis stated that the actual value of the stock was not less than $34 a share and that the market value should be at least $25 a share. The syndicate proposed to purchase a million dollars worth of stock at $15.50 a share. The petitioner agreed to participate in the syndicate and on or about September 22, 1926, contributed thereto $100,000 in cash. A written agreement setting forth the terms and conditions under which the pool was to operate was submitted in a letter dated September 21, 1926, from S. C. Lewis and A. C. Wagy & Company, Inc., a stock brokerage concern of Los Angeles, to H. S. MacKay, Jr. MacKay was one of the participating pool members and had been elected manager of the pool. This agreement was signed by the petitioner and other pool members. The agreement provides, in so far as material in this*1403 proceeding, that the pool members would purchase from A. C. Wagy & Company, Inc., and Lewis, 64,517 shares of Julian Petroleum Corporation preferred stock at $15.50 per share, and that on or before six months from date (September 21, 1926) A. C. Wagy & Company, Inc., and/or Lewis would repurchase the stock at a price of not less that $15.50 a share. As a guaranty against loss and as a pledge for their promise to repurchase the stock from the pool members on or before the specified date, A. C. Wagy & Company, Inc., and Lewis deposited with the pool members a like number of shares (64,517) of the same stock. The pool members were authorized to sell the stock to anyone at any time, but all sales were to be made by the pool manager and through A. C. Wagy & Company, Inc., and the stock was not to be sold for less than $15.50 per share, unless first offered to A. C. Wagy & Company, Inc., and/or Lewis at that price. Any and all profits on the sales of the stock made by A. C. Wagy & Company, Inc., were to be divided, 80 per cent to the pool members and 20 per cent to A. C. Wagy & Company, Inc. Lewis and A. C. Wagy & Company, Inc., were to begin repurchasing the stock from the pool members*1404 on or before 40 days from date at the rate of $3,000 shares a day and were to continue *1285 thereafter to purchase the stock at the then prevailing Los Angeles Exchange market price, less a commission of 25 cents a share, but at not less than $15.50 a share until the pool should be completely liquidated. As a part of the above outlined agreement, A. C. Wagy & Company, Inc., and Lewis, by a separate writing, guaranteed the pool members against any loss in the undertaking. Also, as a part of the agreement, they furnished to the pool members a written statement purporting to show the amount of stock of the Julian Petroleum Corporation outstanding and the manner in which it was held, and also a copy of the resolution of the board of directors of the Julian Petroleum Corporation to the effect that no other preferred stock would be issued while the pool was in operation. A. C. Wagy & Company, Inc., and Lewis failed to carry out the terms of the agreement of September 21, 1926, with respect to the repurchase of the stock held by the pool. On November 9, 1926, the parties entered into a further agreement whereby A. C. Wagy & Company, Inc., and Lewis were to repurchase the stock*1405 on or before December 10, 1926, at a price of not less than $18.50 per share. This agreement likewise was not carried out and on December 9, 1926, a further agreement was entered into whereby A. C. Wagy & Company, Inc., and Lewis agreed to pay to H. S. MacKay, Jr., for immediate distribution to the pool members $3 per share on their respective shares of the pool's stock and, further, to repurchase all of the stock on or before January 9, 1927, at prices as follows: If purchased on or before December 20, 1926, at market, but at not less than $16.50 per share; if purchased after December 20, 1926, but before December 30, 1926, at market, but at not less than $17.50 per share; and if purchased after December 30, 1926, at market, but at not less than $18.50 per share. The agreement reads in part as follows: This is supplementary to our Agreements with you as Pool Manager, covering Preferred Stock of Julian Petroleum Corporation, as set forth in our letters to you under date of September 21, 1926, and November 9, 1926. * * * The situation now arises wherein it is our desire to further extend the time within which we are to agree to purchase from you, and your associates, the said*1406 shares of stock. In the original agreement of September 21, 1926, you will recall that we agreed to purchase said stock from you, and your associates, at the price of Fifteen and 50/100ths Dollars ($15.50) per share, and under said extension agreement of November 9, 1926, the purchase price was increased by us to not less than Eighteen and 50/100ths Dollars ($18.50) per share net to you and your associates. It is, therefore, our desire at this time for you to receive the said profit for your said extension of Three Dollars ($3.00) per share on each and all of said shares, and accordingly, we enclose herewith Cashier's check in the sum of Dollars ( ), which is to *1286 be the present profit to you and/or your associates in the transaction. This will leave the purchase price as originally agreed to, namely Fifteen and 50/100ths ($15.50) per share net to you. Pursuant to the agreement of December 9, 1926, the petitioner received from MacKay, in December, 1926, $19,354.80, with the following communication: LOS ANGELES, CALIFORNIA. December 11th, 1926. Mr. W. R. HERVEY, Los Angeles, Calif. DEAR SIR: I enclose herewith Cashier's check in the sum of Nineteen*1407 thousand three hundred fifty four dollars eighty cents ($19,354.80), being your present profit in the pool of which I am Manager. This profit is calculated on the basis of Three Dollars ($3.00) per share for each share to which you are entitled in said Pool, namely six hundred forty five (645) shares. Kindly acknowledge receipt and oblige, Yours very truly, POOL MANAGER. On December 13, 1926, the petitioner replied to the foregoing as follows: Mr. H. S. MACKAY, Jr., 747 Title Insurance Building, Los Angeles, California. DEAR SIR: I acknowledge receipt of your check according to the terms of your letter of December 11th, 1926, and thank you for the same. I am not treating this payment as a profit but as a payment on account of the cash advanced to the pool. I hope that the transaction will show a profit, but, if it does not, I think it would be a mistake to treat this payment as velvet. Yours sincerely, [Signed] W. R. HERVEY. The agreement of December 9, 1926, was not carried out and on January 10, 1927, and again on February 10, 1927, the parties entered into further agreements similar to that of December 9, 1926, paying to the pool manager*1408 for distribution to the pool members on each of those dates $3 per share on the stock held by the pool. On or about each of those dates the petitioner received from H. S. MacKay $19,354.80 on account of such payments. A final agreement was entered into on March 30, 1927, pursuant to which the pool was completely liquidated. On the dates named the petitioner received the following payments from the pool manager: On or about March 30, 1927, 2,150 shares of preferred stock of the Julian Petroleum Corporation; on April 5, 1927, $23,809.50 cash; on April 8, 1927, $11,904.76 cash; on April 12, 1927, $23,809.50 cash; and on April 15, 1927, $40,476.24 cash, making a total of $158,064.40 cash, including the payments in 1926, and 2,150 shares of stock received. *1287 Soon after the petitioner had received his final distribution from the pool manager, it became publicly known that the affairs of the Julian Petroleum Corporation had been grossly mismanaged and that there had been a large overissue of the corporation's stock. In May, 1927, the United States District Court for the Southern District of California appointed Joseph Scott and H. L. Carnahan receivers for the Julian Petroleum*1409 Corporation and several of its subsidiaries, or controlled corporations. These individuals were also appointed receivers for A. C. Wagy & Company, Inc., and Lewis. The receivers claimed that the petitioner and other members of the pool had violated the usury laws of the State of California (General Laws of California, 1923 Ed., sec. 3757, subsec. 3), in that the purchase of the stock by the pool constituted a loan to the corporation at a rate of interest in excess of that permitted by the statute, and that as a consequence they, the pool members, were liable for damages treble the amount of their profits. The receivers advised the petitioner and other pool members that it was their intention to bring suit against them under the statute referred to unless the petitioner and others should return to them all of the profits received from the pool operations. After conferring with friends and other attorneys, the petitioner, though not admitting any violation of the usury laws of the State, agreed to surrender all of his share of the profits to the receivers upon the condition that they would forego suit against him. Accordingly, in May, 1927, petitioner paid to the receivers $58,064.40*1410 in cash and endorsed over to them the 2,150 shares of preferred stock of the Julian Petroleum Corporation. Other members of the pool who refused the compromise settlement were sued by the receivers. As a part of the settlement agreement with the petitioner, the receivers, by authority granted, gave receivers' certificates for the cash and stock which the petitioner had paid to them. The certificates remained in the custody of the receivers and were solely for the purpose of protecting the petitioner against any further liability for any claims that might be brought against him by other parties on account of his participation in the pool. In no event was the petitioner to receive any benefit from such certificates. In his income-tax returns for 1926 and 1927 the petitioner did not report any income from his participation in the stock pool. OPINION. SMITH: The petitioner contends, in effect, that he realized no income by reason of the cash and stock distributions by the syndicate or pool manager in 1926 and 1927, but that in the event it is held that he did realize income from such distributions, he sustained *1288 a deductible loss in an equivalent amount in 1927. *1411 The respondent takes the position that the taxpayer realized income in 1926 in the amount of the cash distributions in that year, and realized income in 1927 to the extent that the cash received in that year exceeded his contribution to the pool, plus the 2,150 shares of the preferred stock valued at $9 per share. Respondent further contends that the amount paid to the receivers by the petitioner in settlement of their claim is not deductible, since it was a personal loss and not a loss growing out of the petitioner's investment in the stock pool. Our problem is, therefore, to determine whether the transactions set forth in our findings constitute one continuing transaction, the result of which was neither gain nor loss, or whether they were separate and distinguishable transactions, the result of which in each instance was either gain or loss. The practical effect may be the same in either case, but the resulting tax liability may be quite different. Cf. Anna M. Harkness,1 B.T.A. 127; United States v. Isham,17 Wall. 496. The nature of each transaction is determinable from the facts relating to it, and is not changed because of its association*1412 with other transactions in a larger and more comprehensive plan. Cf. William H. Mullins,14 B.T.A. 426. To carry the petitioner's contention to its logical conclusion would be to treat the payments to the receivers as being comprehended by the general plan of the syndicate or pool, and hold that the plan and purpose of the pool was not to make a profit for the petitioner and his associates. In the case of J. D. Bigger,19 B.T.A. 797, the Board held that the taxpayer's capital contribution to a syndicate for the acquisition of certain oil and gas leases constituted a closed transaction and that he realized a taxable gain upon the exchange of his interest in the syndicate for shares of stock in the operating corporation to which the leases were transferred. Had there been but one distribution in the instant proceeding, and that in 1927, in the amount of $158,064.40 in cash and 2,150 shares of stock, no one would seriously contend that petitioner, having recovered the full amount of his capital investment in cash, did not realize a taxable gain to the extent of the amount of the excess of the distribution over the amount of his investment. In the*1413 circumstances, we hold that for tax purposes the transactions here involved are separate and distinguishable. J. D. Bigger, supra, and cases there cited. On September 22, 1926, the petitioner contributed $100,000 to the syndicate or pool for the purchase of stock of the Julian Petroleum Corporation at a specified price. In this manner he made his capital investment by which he acquired either an undivided interest in the syndicate (see J. D. Bigger, supra ) or a proportionate amount of the stock purchased by the syndicate or pool (see William K. Dick et al.,*1289 Executors,20 B.T.A. 637). The syndicate bought 64,517 shares of the stock at $15.50 per share, which Lewis and A. C. Wagy & Company, Inc., agreed to repurchase, and, as a guaranty to the syndicate against loss, deposited with the syndicate a like number of shares of this stock. On December 9, 1926, Lewis and A. C. Wagy & Company, Inc., being unable to carry out their agreements to repurchase the stock at $18.50 per share, made a further agreement for the repurchase of the stock and paid over to the syndicate $3 per shae as a "present profit * * * in the*1414 transaction." The new agreement provided for the repurchase of the stock at prices that advanced $1 per share for each period of 10 days that elapsed before the repurchase. After December 30, 1926, the repurchase price was not less than $18.50 per share. At the close of the taxcable year 1926, petitioner had received a cash distribution of $19,354.80 upon his interest in the pool. The 64,517 shares of the stock purchased at $15.50 were subject to an agreement to sell at $18.50, and this agreement was guaranteed by the deposit of the same amount of the stock. In other words, the parties to these transactions at the close of the year 1926 were in the same position that they were in prior to the payment of $3 per share to the pool, which in substance was in the nature of a forfeit for failure to carry out the agreement to repurchase. Upon the distribution to the petitioner, he realized a gain which was segregated from his capital investment - he had neither parted with nor diminished his interest in the syndicate or the stock. See *1415 Cullinan v. Walker,262 U.S. 134, 137. In the circumstances, there being no sale of the stock in 1926 such as would entail the return of the capital investment before there could be a realized gain (cf. Burnet v. Logan,283 U.S. 404), we believe that the cash distribution in 1926 was just what the parties said it was, viz., a present profit upon the transaction. The respondent's determination that the amount so received in 1926 is taxable income of 1926 is sustained. In much the same manner petitioner received in 1927 cash distributions prior to the liquidation of the pool in that year. The pool was completely liquidated in 1927 and the petitioner received cash in the amount of $138,709.60 and 2,150 shares of preferred stock of the Julian Petroleum Corporation, which the respondent has valued at $9 per share. The net result of the distributions prior to and in liquidation of the pool was that the petitioner realized income to the extent that these distributions exceeded his capital investment. The respondent's inclusion of the amount of this gain in petitioner's income for 1927 is sustained. However, later in the taxabel year 1927, *1416 the petitioner was required to turn over all of his profits to the receivers of the Julian Petroleum Corporation or be prosecuted for violation of the usury laws of the *1290 State of California. Although admitting no violation of the statute, the petitioner chose to surrender the cash and stock to the receivers upon the condition that they would forego suit against him. This was the aftermath of the stock pool transaction, entered into for profit, and having found that petitioner realized income in the taxable years from his interest in the pool or the stock, he, as a result of turning over to the receivers in 1927 cash in the amount of $58,064.40 and 2,150 shares of stock valued at $9 per share, sustained a deductible loss. The statute permits the deduction of "losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transaction entered into for profit, though not connected with the trade or business." (Section 214(a)(5) of the Revenue Act of 1926.) Admittedly, the petitioner's investment in the pool was a transaction entered into for profit. It seems to us, too, that the compromise settlement with the trustees was*1417 directly related to this transaction. Certainly, the loss was not a personal loss in the sense that it was disassociated from any business transaction, nor did it result from any patently wrongful and extrinsic act on the part of the petitioner such as perjury (see Sarah Backer et al., Executors,1 B.T.A. 214). The petitioner's payment to the trustees was in settlement of an alleged civil liability which was predicated upon the very substance of the transaction upon which the profits were computed. It was not in the nature of a fine for violation of a criminal statute as in Columbus Bread Co.,4 B.T.A. 1126. No criminal action against the petition had been proposed. The discussion in Kornhauser v. United States,276 U.S. 145, of proximity of cause as related to business expense deductions is pertinent. The court said: In the Appeal of F. Meyer & Brother Co.,4 B.T.A. 481, the Board of Tax Appeals held that a legal expenditure made in defending a suit for an accounting and damages resulting from an alleged patent infringement was deductible as a business expense. *1418 The basis of these holdings seems to be that where a suit or action against a taxpayer is directly connected with, or, as otherwise stated (Appeal of Backer,1 B.T.A. 214, 216), proximately resulted from, his business, the expense incurred is a business expense within the meaning of section 214(a), subd. 1, of the act. These rulings seem to us to be sound and the principle upon which they rest covers the present case. * * * This principle would seem to apply with equal effect in the case of losses, the evident purpose of the statute being to allow the deduction of both the ordinary and necessary expenses and the losses incident to the business or transaction which has yielded the profits to be taxed. In a number of cases we have denied the deduction as business expenses of fines, penalties, and legal expenses arising from violations of various regulatory and criminal laws. See Sarah Backer*1291 et al., Executors, supra;John Stephens,2 B.T.A. 724; Columbus Bread Co., supra;*1419 Great Northern Railway Co.,8 B.T.A. 225; affd., 40 Fed.(2d) 372; Atlantic Terra Cotta Co.,13 B.T.A. 1289; Buroughs Building Material Co.,18 B.T.A. 101; affd., 47 Fed.(2d) 178. The necessity for the rule is laid to the statutory limitation of deductible expenses to the "ordinary" and "necessary" expenses, which terms are said to exclude the expenses arising from unlawful acts. The statute, however, does not use these restricting terms in providing for the deduction of losses. With exceptions not here material, it authorizes the deduction of all losses incurred in trade or business (section 214(a)(4), Revenue Act of 1926), or incurred in any transaction entered into for profit (section 214(a)(5), Revenue Act of 1926). The term "loss" is said to be a comprehensive one. Ernest E. Lloyd,8 B.T.A. 1029. In Electric Reduction Co. v. Lewellyn, 11 Fed.(2d) 493, the court described a loss as a "failure to keep that which one has." In Burroughs Building Material Co. v. Commissioner, supra, the court said that "the disallowance may properly rest on a refusal to sanction*1420 expenditures of such a character as we have here on grounds of public policy." The expenditures referred to were fines and attorneys' fees paid in connection with prosecution or indictment for participating in a price-fixing agreement in violation of the laws of New York. We do not understand, however, that the laws of California prohibit the operation of or the participation in stock pools of the character under consideration in this proceeding, nor do we think that it can be said that such a transaction is malum in se or contrary to public policy. In the cases cited, where the deductions have been disallowed, the transactions involved were all illegal. In other cases, where the illegality of the transactions was not established, similar deductions have been allowed, as in Huff, Andrews & Thomas,1 B.T.A. 542, where the taxpayer, although denying his guilt, was accused of violating the United States Food Control Act and required to pay a fine of $5,000 to the Red Cross or have its license canceled. See also superheater *1421 Co.,12 B.T.A. 5; Continental Screen Co.,19 B.T.A. 1095; H. M. Howard,22 B.T.A. 375; Matson Navigation Co.,24 B.T.A. 14. We have reached the above conclusions in the manner stated because cause the tax liability for each taxable year must be determined upon the basis of the transactions occurring within the year (see Florence B. Fawsett,23 B.T.A. 1147), and although we have both taxable years before us, we do not deem it proper, for tax purposes, to hold *1292 that the net result of the transactions was neither gain nor loss to the petitioner. He realized gains in both taxable years, and sustained a loss in 1927; he should be taxed accordingly. Reviewed by the Board. Judgment will be entered under Rule 50.