Gerlach v. Commissioner

THEODORE R. GERLACH, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Gerlach v. Commissioner Docket Nos. 38042, 41641. United States Board of Tax Appeals 27 B.T.A. 565; 1933 BTA LEXIS 1325; January 31, 1933, Promulgated *1325 Petitioner purchased stock, paying part in cash and giving his notes for the balance, the stock being deposited under a contract with a trustee as collateral security for payment of the notes, with power to sell in case of default. Thereafter, he assigned his interest in the contract and the stock to his wife by another contract, signed by her, providing that the dividends received thereon should be used to satisfy the existing encumbrance on the stock. During the taxable years in question all the dividends on the escrowed stock were paid to the wife and were then applied to the stock encumbrance. The stock was transferred from the original sellers directly to petitioner's wife, on the books of the company, upon the payment of the balance due thereon. Held, that the wife, having assumed, as between herself and petitioner, the payment of the unpaid purchase price of the stock in the amount of the dividends paid thereon in the taxable years, which she collected and applied in accordance therewith, these dividends were income to her and not to petitioner. Paul E. Shorb, Esq., and M. P. Wormhoudt, Esq., for the petitioner. George D. Brabson, Esq., for the*1326 respondent. LEECH *565 These proceedings, consolidated for hearing, seek redetermination of deficiencies in income tax of $2,046.92 and $2,342.81, determined by respondent for the calendar years 1923 and 1924, respectively. The issue presented for each year is the action of respondent in including in petitioner's income for each year dividends on corporate stock paid by the corporation to petitioner's wife in such year. FINDINGS OF FACT. Petitioner, a resident of Joliet, Illinois, is a stockholder of the Gerlach-Barklow Company of that city and during the years 1920 to 1925 was president of that company. On November 11, 1919, petitioner purchased from John Lambert and Harry L. Thompson 3,796 shares of common stock of the Gerlach-Barklow Company for a consideration of $175,000. Of the purchase price $5,000 was paid in cash at the time of sale and a contract entered into by the parties under which the balance was to be paid, $35,000 on January 15, 1920, $33,749.99 on January 15, 1921, $33,749.99 on January 15, 1922, $33,749.99 on January 15, 1923, and $33,750.03 on January 15, 1924. Under the contract in question the certificates covering this stock*1327 were to be assigned in blank by Lambert and Thompson and delivered to Henry J. Weber, as trustee, to hold as collateral security for payment of promissory interest-bearing *566 notes executed by petitioner covering the balance of the purchase price. The contract further provided that petitioner should receive dividends paid on such stock so long as he was not in default in payments of principal or interest, and that he should be entitled to vote the stock, but in case of default in payment of either principal or interest the trustee should, if required by Lambert and Thompson, sell the stock to realize the unpaid balance due. When the purchase price evidenced by the notes was fully paid, the certificates of stock were to be delivered to petitioner by the trustee. Upon execution of this contract the notes were signed and delivered and stock endorsed and deposited as provided. On November 15, 1919, petitioner entered into a written agreement with his wife, the portions of which, pertinent to the issues here presented, are as follows: MEMORANDUM OF AGREEMENT made this 15th day of November 1919 between Theo. R. Gerlach, party of the first part, and Charlotte H. Gerlach, *1328 his wife, party of the second part, both of the City of Joliet, Will County, Illinois. WITNESSETH: Whereas by a certain contract dated November 11th, 1919, the party of the first part purchased of John Lambert and Harry L. Thompson three thousand seven hundred and ninety-six (3796) shares of the common stock of The Gerlach-Barklow Co., and by a certain other contract of date November 12th, 1919, he purchased of the said John Lambert and the said Harry L. Thompson one hundred and ninety-four (194) shares of the capital stock of the Blanchard Co., both Illinois corporations, both of said parties providing for payment of the consideration named in installments extending over a period of years and providing also that the certificates of stock held by the said Lambert and Thompson should be endorsed in blank and deposited with Henry J. Weber as trustee to secure the payment of the purchase price thereof, and providing further that so long as said Gerlach is not in default he should be entitled to collect and receive all dividends paid on said stock and to vote said stock at all meetings of the stockholders, and WHEREAS the party of the first part desires to assign and transfer all*1329 of the stock so purchased by him to the party of the second part, but for reasons above stated it is impracticable to assign and deliver the certificates of stock, or to have them transferred to her upon the books of the respective corporations. Now, therefore, it is agreed that for and in consideration of love and affection and other good and valuable consideration, the receipt of which is hereby acknowledged by him, said party of the first part does hereby sell, assign, transfer and set over unto said party of the second part all of his right, title and interest in and to the contracts above-mentioned and the shares of stock therein and thereby purchased by him, provided, however, and this assignment is made with the express understanding, that pending the completion of the payments provided for in said contracts said party of the first part shall have the right, as in said contracts provided, to vote such stock at all meetings of the stockholders and to collect and to receive all dividends paid thereon, it being agreed by him that all dividends so received upon said stock shall be applied by him toward the payment of the principal of the notes evidencing the *567 various*1330 installments of the purchase price of said stock as they mature, and it being further understood that the party of the first part will himself pay the interest on said notes according to the terms thereof and the balance of the principal after applying the dividends received as aforesaid, and Whereas also party of the first part is the owner of (100) one hundred shares of the capital stock of the Joilet Wrought Washer Co., Joilet, Ill., which company is about to reorganize and contemplates declaring a one hundred per cent cash dividend on the present capital stock and a stock dividend consisting of two shares of preferred and three shares of common to each share of stock now held by the stockholders, and whereas said party of the first part also desires to give to the party of the second part all the benefits of every kind to be derived from his holdings in said company, except that he wishes to reserve for himself sufficient of the common stock of said company to permit him to qualify as a director thereof, and It is further agreed that in consideration of love and affection and other good and sufficient consideration, the receipt of which is hereby acknowledged, the said party*1331 of the first part shall and does hereby sell, assign, transfer and set over unto said party of the second part all of his interest in his holdings in said Joliet Wrought Washer Co. as aforesaid, that is, the party of the second part shall receive the cash dividend contemplated to be declared at an early date and all of the preferred stock and all but twenty-five shares of the common stock received upon such reorganization for the present holdings of the party of the first part, provided, however, that the cash dividend soon expected to be paid, as well as all dividends earned upon the new stock shall be received and collected by the said party of the first part and applied by him on the payments to John Lambert and Harry L. Thompson heretofore referred to until the stock purchased from them shall be fully paid for. It is hereby declared to be the purpose of this memorandum to transfer to the party of the second part so far as practicable under the circumstances all interest of the party of the first part in and to the stocks mentioned, that in the Joliet Wrought Washer Co. to be properly placed in the name of the party of the second part as soon as the new stock is issued and that*1332 in The Gerlach-Barklow Co. and The Blanchard Co. to be placed in her name as soon as the contracts with said Lambert and Thompson herein referred to are fully carried out and performed. It is further expressly understood and agreed that all dividends hereafter paid on the stock in all of said companies, whether paid by the respective company to the party of the second part or to the party of the first part, shall be treated as the property of the second part, but if paid direct to the party of the first part they are to be applied by him for the benefit of the party of the second part toward the payment of the purchase price of said stock as aforesaid, but when said payments to Lambert and Thompson are fully completed and the stock is transferred to the party of the second part as above provided, she shall hold the same and all the profits derived therefrom without any conditions or restrictions whatsoever. The party of the second part executes this agreement as evidence of her acquiescence in and approval of the conditions and restrictions under which said gifts and assignments are made. [Signed] THEO. R. GERLACH Party of the first part CHARLOTTE H. GERLACH *1333 Party of the second part *568 There is no question involved in this proceeding in respect to the stock of the Blanchard Company and the Joliet Wrought Washer Company mentioned in the foregoing contract. This agreement of petitioner and his wife was prepared by an attorney in Joliet, a brother of Mrs. Gerlach, who was told by petitioner simply what he wanted to do. Petitioner's wife executed the agreement and accepted it and Lambert and Thompson were notified thereof by petitioner, together with the treasurer and assistant treasurer of the Gerlach-Barklow Company, a copy of the agreement being filed with the assistant treasurer. Following the execution of this contract, petitioner never represented himself as the owner of the stock in question, but it was treated and considered as the property of Mrs. Gerlach. Following the assignment by petitioner of his interest in the stock in question to his wife, the dividends paid thereon by the company were paid by check to Mrs. Gerlach personally and these checks were deposited by her in her personal bank account. During the years in question she gave her personal checks to petitioner for amounts slightly in excess of the*1334 dividends she received, which petitioner applied on the purchase obligation. The payments provided to be made to Lambert and Thompson were duly made as required and the stock was transferred directly from Lambert and Thompson to petitioner's wife, certificates for 2,000 shares being issued to her on January 12, 1924, by the company and certificates for 1,796 shares being issued to her on June 25, 1924. The dividends paid on the stock in question to petitioner's wife during the years 1921 to 1924, inclusive, were reported by her in her individual income tax return for those respective years. The amount in dividends so paid to her in 1923 and 1924 was at the rate of $4 per share, or in the amount of $15,184 in each of those years. Petitioner's wife also received in each of the years 1923 and 1924 dividends of $4 per share on 67 shares of stock in the Gerlach-Barklow Company, which she owned independently and separately from the 3,796 shares involved herein. The dividends received by her on these 67 shares, amounting to $288 in each year, she included as income on her tax return for such year. The minute book of the Gerlach-Barklow Company for the years 1922, 1923, and 1924*1335 listed Mrs. Gerlach as the owner for voting and dividend purposes of 3,863 shares of the common stock of that company. This figure included the 67 shares of stock above referred to as independently owned by her. In 1923 and 1924 petitioner's wife gave to the petitioner, J. C. Flowers, and E. J. Barklow, her proxy to represent her stock at the stockholders' meetings held in those years. *569 Petitioner maintained personal books containing a record of all of his investments and in these no entry was made of the 3,796 shares of common stock involved herein, but in the personal record kept by Mrs. Gerlach for those years 3,863 shares of Gerlach-Barklow common stock were entered as belonging to her. Of the $33,749.99 due on January 15, 1921, under said contract of November 11, 1919, petitioner paid $16,929.99 and his wife paid $16,820. Of the $33,749.99 due on January 15, 1922, petitioner paid $18,297.99 and his wife paid $15,452. Of the $33,749.99 due on January 15, 1923, petitioner paid $12,779.99 and his wife paid $20,970. Of the $33,750.03 due on January 15, 1924, petitioner paid $18,053.91 and his wife paid $15,696.12. Shortly after November 11, 1919, petitioner*1336 purchased for himself and others approximately 1,700 shares of Gerlach-Barklow common stock at $51 per share, and other sales were made of that stock between that time and January 1, 1925. In none of these sales did the stock bring less than $46.10 per share. In determining the deficiencies here in question, the respondent has included in petitioner's income for each of the years 1923 and 1924 the dividends paid by the Gerlach-Barklow Company to petitioner's wife on the 3,796 shares of stock here involved and also the dividends paid her in those years on the 67 shares of the stock of that company acquired by her independently of the contract of November 15, 1919. OPINION. LEECH: A stipulation of the parties discloses that the sum of $268 included by respondent in petitioner's income for each of the years involved represented dividends paid his wife on 67 shares of stock acquired by her independently of the contract of November 15, 1919. It is apparent that these amounts did not represent income to petitioner and respondent is therefore in error as to this item. This leaves the question as to whether the dividend payments made by the Gerlach-Barklow Company of $15,184*1337 in each of the years 1923 and 1924 to petitioner's wife on 3,796 shares of stock acquired by her under the contract of November 15, 1919, represented income to her or to petitioner. Petitioner clearly acquired the beneficial title to this stock by his purchase from Lambert and Thompson on November 11, even though the stock register of the company did not show the actual transfer. ; . Petitioner was entitled thereafter to the dividends thereon though the stock was placed in escrow to secure payment of the purchase price. . *570 The taxable status of the dividends in question is determined not only by the intention of the petitioner and his wife in reference thereto, which is evidenced by the contracts of November 11 and November 15, but by what was done thereunder. It is fundamental that in construing a written instrument, it must be considered as a whole, and, if possible, effect be given to each provision. *1338 ; ; 6 Ruling Case Law, 837, 838. The contract between petitioner and his wife provides that petitioner shall have the right: * * * to vote such stock at all meetings of the stockholders and to collect and to receive all dividends paid thereon, it being agreed by him that all dividends so received upon said stock shall be applied by him toward the payment of the principal of the notes evidencing the various installments of the purchase price of said stock as they mature, and it being further understood that the party of the first part will himself pay the interest on said notes according to the terms thereof and the balance of the principal after applying the dividends received as aforesaid. * * *. Respondent argues that this provision constitutes a specific reservation of the income from the stock for petitioner's use and benefit. Even if the quoted provision stood alone, it would be difficult to accept this view, as it provides that petitioner will, in addition to the application of the dividends, "himself" pay the interest and the balance of the principal. This language*1339 would naturally indicate that the latter payments were the only ones made by petitioner in his individual capacity. However, the quoted portion of the assignment does not stand alone, but must be considered in connection with other sections of the agreement, just as specific, which we would have to disregard to apply the construction for which respondent contends. One of these is the provision that it should be "expressly understood and agreed that all dividends hereafter paid on the stock * * * whether paid by the respective company to the party of the second part or the party of the first part shall be treated as the property of the second part, but if paid direct to the party of the first part they are to be applied by him for the benefit of the party of the second part toward the payment of the purchase price of said stock * * *." In our opinion, it is impossible to reconcile this last provision with the one first quoted, if that provision constitutes a reservation of the income on the stock to petitioner for his use and benefit. On the other hand, it is possible to reconcile it with the foregoing provision if the latter merely provides for the receipt of the income by petitioner*1340 for his wife and solely for the purpose of its application by him in her interest. Assuming the contract of assignment is impossible of such a construction as will give effect to each provision contained therein, we *571 may obtain the general intent of the parties to the writing from the language employed in the entire instrument, as applied to its subject matter, even if such intent is apparently in conflict with some word or clause in the writing. ; . In proceeding to such a determination, the interpretation placed on the contract in question by the parties thereto, evidenced by what they actually did thereunder, is important, if not controlling: ; ; . Taxation is a highly practical matter, and, in any event, what we are called upon to decide is not an intention, upon which no tax is imposed, but the legal status of what actually occurred:*1341 ; ; ; . What does the record disclose actually occurred here? Immediately following the assignment by petitioner to his wife, the petitioner notified officials of the company and others that he had transferred his entire interest in the stock to his wife. Nobody, including petitioner, ever thereafter asserted by word or act any claim or right to ownership in the stock or the dividends therefrom, except the wife of the petitioner. The minute book of the company proclaimed her the owner. The stock was voted on her proxy - not by petitioner alone, but by three individuals, including petitioner, who actively directed the affairs of the company. The dividends were actually paid to the wife in every instance. The contract of assignment of November 15 by Gerlach to his wife was certainly sufficient to vest in her all his transferable "right, title and interest in the contract (with Lambert and Thompson) and the stock," itself, which carried with it the right to dividends*1342 thereon, unless reserved. The stock was encumbered with the balance due on the purchase price, evidenced by the petitioner's notes and the escrow agreement of November 11. Although Gerlach could not assign his personal liability on the notes without the acquiescence of Lambert and Thompson, he could assign his interest in the stock subject to the encumbrance thereon, effective as between him and his assignee, Mrs. Gerlach, in passing this obligation to her. We conclude that this was accomplished, as to a part of the encumbrance, by his assignment on November 15 of "all his right, title and interest in and to the contracts above mentioned and the shares of stock" to Mrs. Gerlach. In accepting this assignment and signing the contract, she assumed, as between the petitioner and herself, the obligation of paying the amount of the dividends she received on the stock on account of the balance *572 due on the original purchase price, during the period covered by the contract. Mrs. Gerlach actually received all the dividends in question. She applied them to the payment of the encumbrance on the stock. Her primary interest*1343 was to pay the obligation she assumed in the contract of November 15 and such dividends were therefore income to Mrs. Gerlach within the definition of the court in . It can not be said that petitioner's wife was a purchaser from him of the stock in question in consideration of the dividends to be received and that these dividends represented income first to her and, then were taxable again to petitioner when paid over to him as part of the purchase price. Such theory could be based only upon the premise that the transaction was one giving rise to gain, whereas, in fact, it was one from which no gain could possibly accrue to petitioner. If the dividends, when paid, represented income to petitioner's wife, they could in no event be taxable income to petitioner when paid by her to him, as they would represent merely a return of petitioner's capital outlay to that extent, and this, being in excess of any possible payment to be received from his wife, no portion of any of such payment could represent gain to him. We can not agree that, because petitioner had executed his promissory notes for the unpaid portion of the*1344 purchase price, the use of the dividends in payment of these notes was one primarily in his interest as reducing his obligation, for the evidence shows that a failure to pay the notes would have resulted in liability of the stock to sale. This stock was the property of his wife and its fair market value was at no time less than the amount of the notes. In fact, in 1923, when the first of the dividends here in question was paid to petitioner's wife, 60 per cent of the purchase price of the stock had been paid and the stock had a substantially higher market value at that time than its cost to petitioner. Petitioner's wife, and not petitioner, would have been the loser had the notes not been paid. The application of the dividends for their payment was a use of them in her interest, and they were income to her. Cf. ;. Respondent cites , as controlling. That case is clearly distinguishable upon the facts, for there title to stock was transferred by a mother to her son, with reservation of the income to her for life for*1345 her personal and unrestricted use. However, the reasoning of the court as to the situation presented in that case seems to sustain our present conclusion upon the facts presented here. *573 We hold that the dividends of $15,184 paid in each of the years 1923 and 1924 to petitioner's wife represented income to Mrs. Gerlach and not to petitioner. Reviewed by the Board. Judgment will be entered under Rule 50. MURDOCK MURDOCK, dissenting: The petitioner retained the right to collect and receive the dividends pending the payment of his notes. The dividends were actually used to pay the petitioner's notes. Therefore, the dividends were income to him. SMITH and VAN FOSSAN agree with this dissent.