Maloney Electric Co. v. Commissioner

MOLONEY ELECTRIC COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Maloney Electric Co. v. Commissioner Docket No. 96076. United States Board of Tax Appeals 42 B.T.A. 78; 1940 BTA LEXIS 1058; June 13, 1940, Promulgated *1058 1. The amount paid by petitioner to induce a solvent bank to assume the liabilities of another, under the same circumstances as those existing in Robert Gaylord, Inc.,41 B.T.A. 1119, held, following that case to be deductible as ordinary and necessary expenses of carrying on its business, the evidence indicating that such payment was made to preserve, protect and promote petitioner's busness. 2. Contract between petitioner and its creditor executed prior to May 1, 1936, required that 20 percent of its net earnings in excess of $320,000 for the next preceding year, on the first day of June of the succeeding year, be paid to a trustee as a sinking fund for the retirement of its bonds. Another provision of the contract authorized the retirement of the bonds by the petitioner at any time by the payment of $103 for each $100 bond outstanding. At some undisclosed time during the taxable year 1936 petitioner retired all of its remaining outstanding bonds, being $690,500 of the original issue of $1,500,000. Held, that the evidence is insufficient to show petitioner is entitled to the credit allowed under section 26(c)(2) of the Revenue Act of 1936. Strong Manufacturing Co.,41 B.T.A. 1273,*1059 distinguished. 3. Contract referred to in preceding paragraph required payment during the taxable year of 2 percent of largest amount of bonds outstanding and such payment was made. Held petitioner is entitled to credit under section 26(c)(2) of the Revenue Act of 1936 in the amount paid. C. M. Trammell, Esq., Donald McGovern, Esq., and James C. Thompson, C.P.A., for the petitioner. Carroll Walker, Esq., and R. P. Hertzog, Esq., for the respondent. MELLOTT *78 The Commissioner determined a deficiency in petitioner's income tax for the calendar year 1935 in the amount of $3,011.54 and for the calendar year 1936 in the amount of $2,467.08, or a total deficiency of $5,478.62. Some of the adjustments made by the Commissioner are not questioned. The petition alleges that he erred in disallowing the claimed deduction from gross income of $4,150.52 paid by the petitioner under the circumstances hereinafter set out; in failing to allow credit which petitioner claims it is entitled to receive under section 26(c)(2) of the Revenue Act of 1936; and in holding that the petitioner during the taxable years was not entitled to take a deduction*1060 for depreciation on its machinery computed on a composite life of ten years. The respondent concedes that he erred in the particular *79 last mentioned and effect will be given to this concession in the recomputation under the Board's rules. FINDINGS OF FACT. Petitioner is a corporation organized under the laws of the State of Delaware, with its principal office in St. Louis, Missouri. From 1931 through 1936 and at all times material herein petitioner was engaged in the general electric business, particularly manufacturing transformers. In 1931 the Franklin-American Trust Co. (hereinafter referred to as Franklin-American) was a bank and trust company created and existing under the laws of the State of Missouri. It was one of the four leading banks in St. Louis. During December 1931 the banking situation in St. Louis was acute, many depositors were worried over the safety of their deposits, and runs on banks were frequent. During that month Franklin-American experienced a silent run, withdrawals of approximately $1,000,000 a day in excess of deposits being made. The matter was brought to the attention of member banks of the St. Louis Clearing House Association*1061 and they deemed it necessary that immediate action be taken to meet the situation. Accordingly a meeting was called on December 21, 1931, which was attended by the president of petitioner and other business men and bankers of St. Louis. The president of the St. Louis Clearing House Association and vice president of the First National Bank of St. Louis (sometimes hereinafter referred to as First National) advised those present at the meeting that Franklin-American would be unable to open for business unless it could forthwith be merged or consolidated with some other bank, or unless its liabilities should be assumed by some solvent bank in the city of St. Louis. He also advised that First National, in order to avert the serious financial crisis which it was feared would result from the closing of Franklin-American, had given consideration to a plan to take over its assets and assume its liabilities, but stated that it was unwilling to do so unless it should receive guaranties against loss in an amount aggregating $2,000,000. The member banks of the St. Louis Clearing House Association agreed to participate in such guaranty to the extent of $1,250,000. This being $750,000 less*1062 than the amount required by First National, officers and representatives of other businesses in St. Louis, including the petitioner, herein, collectively subscribed the additional required amount. *80 The following "Instrument of Guaranty" was ultimately signed by petitioner and approximately sixty corporations and individuals: THIS INSTRUMENT OF GUARANTY entered into this 21st day of December, 1931, WITNESSETH, That WHEREAS the First National Bank in St. Louis proposes to take over the assets and assume the liabilities of the Franklin-American Trust Company, but is unwilling to do so except upon receipt by it of total guaranties against loss satisfactory to it in a sum equalling Two Million Dollars ($2,000,000.00); and WHEREAS the members of the St. Louis Clearing House Association, including the First National Bank in St. Louis, have agreed to participate in this guaranty to the extent of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00); and WHEREAS the undersigned are desirous of including the First National Bank in St. Louis to so take over said assets and assume said liabilities; NOW, THEREFORE, in consideration of the premises, the undersigned*1063 do agree to participate in such guaranty to the amount set opposite their respective names, and to pay over to the First National Bank in St. Louis, on demand, said amounts, to be held by it as security for such guaranty. The president of petitioner signed the document on its behalf and subscribed $5,000 to the fund. This sum was deposited with First National during the early part of January 1932. The required guaranty was oversubscribed and on January 12 a portion of the amounts paid in by each of the sixty corporations and individuals was refunded. Petitioner received on January 12, 1932, cash of $849.48 and a certificate of deposit of the First National for $4,150.52. The certificate provided that First National should pay "interest on said sum at the rate of five percent (5%) per annum payable semi-annually on July 1st and January 1st of each year so long as same is so held and until same has been either applied on said guaranty or repaid to said Moloney Electric Company." The president of petitioner signed the guaranty for the company because he believed such action to be for its best interest. The company had on deposit in various banks in St. Louis approximately $295,000. *1064 In addition it had substantial accounts receivable, approximately $14,000 of which was owed to it by St. Louis customers, four of whom, on December 21, 1931, were depositors in Franklin-American. He felt that the closing of one or more of the banks in the St. Louis area would materially affect adversely the company's business in St. Louis and the surrounding territory. Petitioner was not a stockholder or a depositor in Franklin-American, but the agreement was signed and the deposit of the above amount was made for the purpose of protecting, preserving, and promoting its own business. Relying upon the guaranty agreement, First National, on December 21, 1931, entered into an agreement with Franklin-American under which it took over all of its assets and assumed its liabilities. *81 First National regularly, at semiannual periods from December 21, 1931, to December 21, 1936, in accordance with the terms of the certificate of deposit paid or credited interest to petitioner on its deposit, which amounts petitioner returned as income in the years received. About the middle of December 1936 petitioner was advised that the remaining assets of Franklin-American acquired*1065 by First National at the time of the merger would not be sufficient to satisfy all of the liabilities of Franklin-American and that the total amounts theretofore deposited in connection with the guaranties were required to be used to make good the deficit. Petitioner was advised that the bank would, as of December 21, 1936, apply the amount of its deposit in accordance with the guaranty; that the certificate of deposit should be surrendered; and that interest on said amount would not be paid after December 21, 1936. Petitioner was requested to sign a supplemental agreement consenting that the liquidation of the assets should be continued for a period of three years after December 21, 1936, it being understood that, if the remaining assets could be disposed of for an amount more than sufficient to liquidate Franklin-American's liabilities, any excess would be distributed pro rata to the guarantors. Petitioner signed the supplemental agreement, but no additional amounts had ever been received by it up to the time of the hearing in September of 1939. From January 1932 to December 1936 the certificate of deposit was carried on petitioner's books as an asset. After the application*1066 of said amount to the satisfaction of the guaranty and within the calendar year 1936, the amount was charged to its profit and loss account. Petitioner keeps its books and files its income tax returns on the calendar year basis. In its income tax return for the calendar year 1936 it took as a deduction from gross income the amount of $4,150.52 on account of the application of its deposit of that amount to the satisfaction of its agreement of December 21, 1931. Petitioner had not for any year prior to 1936 taken any deduction on account of said agreement or on account of the deposit made by it to secure the agreement. Petitioner was not, and has not been, compensated by insurance or otherwise for any loss sustained from the application of said amount to the satisfaction of its application under the 1931 agreement. On June 1, 1928, petitioner issued its "5 1/2 Percent Sinking Fund Gold Debenture Bonds, Due June 1, 1943" in the aggregate principal amount of $1,500,000. *82 Paragraph 1 of section 1 of article III of the trust agreement reads as follows: Section 1. The Company covenants that as a sinking fund for the retirement of debenture bonds issued hereunder it*1067 will pay to the Trustee on the first day of June, 1930, and the first day of each succeeding June thereafter, so long as any of the debenture bonds hereby authorized are outstanding, a sum equal to 2% of the largest amount of debenture bonds at any time outstanding, and will also pay on said date to the said Trustee 20% of the net earnings, for the next preceding year, as hereinafter defined, of the Company in excess of Three Hundred Twenty Thousand Dollars ($320,000). The determination of the sum to be paid to the sinking fund from the net earnings shall be made from an audit to be made at the close of each calendar year by a firm of certified public accountants acceptable to the Trustee, and when said net earnings are so determined from said audit, which, in no event, shall be later than the first day of each April, said amount shall forthwith be set aside in a separate fund by the Company and shall be paid to the Trustee as herein provided on the first day of June of each year, beginning in the year 1930. Section 3 of article III provides that the company may, at its option redeem the bonds at any time upon giving notice, "at the price of One Hundred and Three Dollars ($103.00) *1068 and accrued interest * * *." Section 1 of article IV of the trust agreement reads as follows: Section 1. Whenever used in this Trust agreement the term "Net Earnings" shall be deemed to mean the gross earnings from the operations of the Company and its subsidiaries, including interest earned, rents earned, additions each year to the cash surrender value of life insurance policies payable to the Company, and other items of income after deducting therefrom all costs, expenses (incurred and accrued), losses and reserves therefor, operating expenses, interest accrued and paid on indebtedness, rentals accrued, insurance premiums, reasonable expenditures for maintenance and renewals, proper reserve for Federal and State taxes and obsolescence and depreciation charges, and such other items as in the opinion of certified public accountants are properly deductible. Section 7 of article V reads as follows: Section 7. The Company will not pay any dividends upon any class of its capital stock now or hereafter authorized, except out of surplus hereafter arising from net earnings attributable to the manufacturing operations of the Company, except dividends of not exceeding in the aggregate*1069 Four Dollars ($4.00) per share on Forty Thousand (40,000) shares of its Class A capital stock, on or before December 1, 1929. Debenture bonds in the aggregate principal amount of $690,500 were outstanding at the beginning of the taxable year 1936. They were all retired during that year. The amount of the "net earnings" of the company for the year 1935 was not shown. OPINION. MELLOTT: The first question is: Did the Commissioner err in disallowing the deduction of $4,150.52? Petitioner, like the taxpayer in , claims that the deduction *83 should be allowed as a loss not compensated for by insurance or otherwise; as an ordinary and necessary expense paid or incurred during the taxable year in carrying on its business; or as a debt ascertained to be worthless and charged off. These allegations are denied in the respondent's answer and he makes substantially the same argument as advanced by him in the Gaylord case. It is unnecessary to repeat what was said in that case. The same conclusion must be reached under the facts before us and it must be, and is, held that the claimed deduction should be allowed under*1070 section 23(a) of the Revenue Act of 1936 as an ordinary and necessary business expense. Brief reference may appropriately be made, however, to some of the evidence relied upon by this petitioner which is not identical to that which was before us in the Gaylord case. Petitioner's president testified that he attended some of the meetings being held in connection with the contemplated absorption by First National of Franklin-American. He stated that the president of the Clearing House Association "presented a very gruesome picture of what was happening here in reference to the Franklin-American * * *"; that his company had on deposit in three banks in St. Louis $295,000; and "we wanted those deposits safe-guarded * * *." "We did not want a calamity to happen in the City of St. Louis if the Franklin Trust Company closed its doors the following morning * * *." "Another thing was that it would materially affect our business in the city of St. Louis and surrounding territory." "The greatest consideration that I had was to protect my own interests that I had in banks of St. Louis and I had in my business." The testimony submitted in this proceeding upon this issue was not as extended*1071 as the evidence adduced in the Gaylord and other cases involving a similar issue tried at substantially the same time. However, we think judicial notice may be taken of the fact that the period was a very critical one in the banking situation generally. As stated by us in the Gaylord case, bank failures in 1931 were twice as numerous as they had been during the preceding year, four times as numerous as during the year 1929, and six times as numerous as during the average year in the predepression era. All of this was known to the St. Louis business men and was forcefully brought to their attention by the president of the clearing house at the hastily called meetings which the president of this petitioner attended. The expenditure of the relatively small sum of money by the petitioner under the circumstances disclosed by the present record, supplemented by the matters as to which we have taken judicial notice, constituted, we think, an ordinary and necessary expense of carrying on its trade or business. We hold, therefore, that the respondent erred in denying the claimed deduction. *84 The remaining question is: May petitioner be allowed any "credit" under section*1072 26(c)(2) of the Revenue Act of 1936, 1 against its "undistributed profits tax?" The deficiency*1073 notice indicates that petitioner's net income for 1935, as disclosed by its return, was $183,667.02 and, after giving effect to the adjustments made by the Commissioner, was $205,569.16. The principal adjustment - the disallowance of $22,650.12 of the amount claimed as depreciation - is now conceded by the respondent to have been erroneous; so the net income as adjusted (after giving effect to a deduction of $747.98 allowed by the Commissioner but not claimed by petitioner in its return) was $184,415. The amount of the "net earnings" for said year, as defined in the trust agreement, was not shown. The deficiency notice also indicates - the returns not having been introduced in evidence - that petitioner's net income for 1936 was $477,633.31. Giving effect to the adjustments made by the respondent, other than the disallowance of a portion of the depreciation, it seems that petitioner's net income for 1936, as adjusted, was $482,105.83. It is alleged in the petition that the largest amount of bonds at any time outstanding during the year 1936 was $690,500; that 2 percent thereof, or $13,810, was "required to be paid to the trustee or set aside out of earnings and profits of the*1074 taxable year 1936 by virtue of the provisions" of the trust agreements; that the "net earnings for the taxable year 1936" amounted to $477,633.31; that 20 percent of the excess over $320,000 ($157,633.31) or $31,526.66 "is required by the provisions of said Trust agreement * * * to be paid or set aside within the taxable year for the purpose of retiring said outstanding debenture bonds"; and that petitioner is therefore entitled to an aggregate credit under section 26(c)(2), supra, in the amount of $45,336.66. These allegations are denied in the respondent's answer. Consideration will first be given to petitioner's contention that it is entitled to credit in the amount of $31,526.66. It will be noted that the statute requires: (1) That there be a written contract executed prior to May 1, 1936; (2) that it contain a provision expressly *85 dealing with the disposition of earnings and profits of the taxable year; (3) that it require a "portion of the earnings and profits of the taxable year" (a) to be paid within the taxable year in discharge of a debt, or (b) to be irrevocably set aside within the taxable year for the discharge of a debt; and (4) when the above conditions*1075 are met then the credit may be given to the extent that such amount (a) has been paid, or (b) has been set aside. The first requirement has been met. It is doubtful, however, if the second has; for, as pointed out by the respondent, it deals with the disposition of earnings and profits of a preceding year rather than of the taxable year. Assuming arguendo (though not deciding) that the second requirement has been met, we pass to a consideration of the others. It would require a strained construction to hold that either the third or the fourth requirement has been met. Petitioner contends that the facts bring it "within the letter and the spirit of the section." It may be that it is within the spirit; but that is not sufficient. "A taxpayer seeking a deduction must be able to point to an applicable statute and show that he comes within its terms." . Nothing that was said in , can be construed as putting any lighter burden upon a taxpayer seeking the credit under the statute in question. It is our duty to construe the statute precisely as written; and*1076 unless the petitioner brings itself within its terms it can not prevail. There is nothing in the trust agreement requiring "a portion of the earnings and profits of the taxable year" either to be paid or to be set aside "within the taxable year for the discharge of a debt." Petitioner does not contend that payment was required. Upon brief it says: "The provisions of the agreement certainly did not require payment out of 1936 net earnings to be made until June 1, 1937. Therefore 3(a) (which it has phrased substantially as set out above) is not met." It contends, however, that the contract "did require the company to irrevocably set aside within the taxable year 20% of the net earnings in excess of $320,000 for the discharge of the bonded indebtedness." We do not agree. The contract requires that when the net earnings are determined from the audit (which is "to be made at the close of each calendar year") "which, in no event, shall be later than the first day of April, said amount shall forthwith be set aside in a separate fund." This provision of the contract is clear and unambiguous and is susceptible of no other construction than that no irrevocable setting aside was required*1077 to be made earlier than April of the succeeding year. We think it is clear, therefore, that neither requirement 3(a) nor 3(b) is met. It has been pointed out that when all of the requirements have been met, credit is to be allowed to the extent that the earnings and *86 profits have been paid or set aside within the taxable year. Petitioner argues that the contract required an irrevocable setting aside and that it has gone even further than required. It says: "besides being set aside, the sum was actually paid to the Trustee under the agreement." Our holding to the effect that the contract did not require an irrevocable setting aside within the taxable year of any portion of the earnings of the taxable year leaves no major premise upon which the minor may be based. But if we have erred in so holding, still petitioner can not prevail. There is no evidence upon which to base a conclusion that any portion of the amount paid in 1936 was paid because of petitioner's obligation to apply 20 percent of its net earnings in excess of $320,000 toward the reduction of its indebtedness. The record does not disclose whether the payment was made near the close of the year when it*1078 was apparent that the earnings would be in excess of $320,000 or whether it was made earlier in the year when the earnings were much less than that amount. It seems to be obvious that the payment was made under the option contained in section 3 of article III rather than because of any requirement of the contract that it be made. In any event, in the absence of any showing as to when the payment was made and in the absence of any showing as to the amount of net earnings at that time, it is impossible to find that the payment was made because of the requirement that 20 percent of the net earnings in excess of $320,000 be applied upon the debt. The instant proceeding is distinguishable upon its facts from . In the cited case it was found that "compliance with * * * [the] conditions" of the statute was questionable in only one respect. It was held that "the 'application' of the designated portion of the earnings and profits required by the contract" was "to be considered as operative 'as of' the taxable year and therefore as the irrevocable setting aside contemplated by the statute." The contract in that case required the*1079 taxpayer to "apply forty percent (40%) of its net earnings * * * upon the unpaid balance of said purchase price." The findings show that "since it appeared (in October of 1936) that petitioner's profits would be such that 40 percent thereof would be in excess of the amount required to discharge the mortgage in full, it was decided to make the payment at that time." In other words, the taxpayer recognized that under its contract its creditor had an equitable lien, during the taxable year, upon 40 percent of its net earnings. But in the instant proceeding the creditor had no equitable lien upon petitioner's earnings until and unless they should be in excess of $320,000. It has been pointed out above that the evidence is not sufficient to establish this fact; and without it the *87 rationale of Strong Manufacturing Co. can not be applied. It is therefore held that the Commissioner did not err in denying petitioner's claim for a credit of $31,526.66 under section 26(c)(2), supra. Petitioner's claim for credit in the amount of $13,810 is in a different category. The contract required it to "pay to the Trustee on the first day of June * * * a sum equal to 2% of the largest*1080 amount of debenture bonds at any time outstanding." Petitioner has given this expression the construction least favorable to it, construing it as if it read "the largest amount * * * at any time during the taxable year outstanding." Here, then, was a contract executed by the corporation prior to May 1, 1936, requiring a definite amount to be paid within the taxable year in discharge of a debt and the amount was so paid. Can it be said that the provision "expressly deals with the disposition of earnings and profits of the taxable year"? If so, was it incumbent upon petitioner to show that payment was actually made out of "the earnings and profits of the taxable year"? If the last question be answered in the negative, then it is unimportant; but if in the affirmative, then it must be held that petitioner has made the required showing, for its president testified that $240,000 of its earnings for 1936 was used in liquidating its bonded indebtedness. But the first suggested question can not be answered so readily. In , it was pointed out that bonds evidence a debt within the meaning of the section now under consideration. *1081 It was therefore held that a provision of the trust indenture requiring the taxpayer to pay to the trustee a definite amount for each ton of sand produced and sold by it should be construed as a provision expressly dealing with the disposition of earnings and profits of the taxable year even though the provision did not expressly use the term earnings and profits. The cited case, though not determinative of the present issue, makes a "practical" application of the section. Cf. . A similar application should be made in the instant proceeding, though the burden upon petitioner to show that it comes within the precise language of the statute must be met. The paragraph of the trust agreement set out in our findings does expressly deal with the disposition of earnings and profits of the taxable year even though the provision requiring the payment of a sum equal to 2 percent of the largest amount of outstanding bonds, taken from its setting, makes no specific reference to earnings and profits. It is apparent, however, the parties intended that petitioner's*1082 net earnings and profits should be applied as follows: The first $320,000 toward the payment of the bonds and as dividends upon the outstanding stock; 20 percent of the excess over that amount toward the payment *88 of the bonds; and that the balance should be added to surplus or paid out as additional dividends. This, we believe, is a practical interpretation of the whole paragraph. So construed, it must be held that the payment was made out of the earnings and profits of the taxable year, pursuant to the provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly deals with the disposition of earnings and profits of the taxable year, and that therefore it comes literally within the terms of the statute. The Commissioner should have allowed petitioner a credit of $13,810 under section 26(c)(2), supra. Reviewed by the Board. Decision will be entered under Rule 50. DISNEY dissents. LEECH LEECH, dissenting: I do not think that the facts here permit the application of any rule other than that recognized by the Board in Strong Manufacturing Co.,41 B.T.A. 1273, and Michigan Silica Co.,41 B.T.A. 511.*1083 That rule requires that petitioner be sustained on the second issue. MURDOCK agrees with this dissent. Footnotes 1. SEC. 26. CREDITS OF CORPORATIONS. In the case of a corporation the following credits shall be allowed to the extent provided in the various sections imposing tax - * * * (c) CONTRACTS RESTRICTING PAYMENT OF DIVIDENDS. - * * * (2) DISPOSITION OF PROFITS OF TAXABLE YEAR. - An amount equal to the portion of the earnings and profits of the taxable year which is required (by a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly deals with the disposition of earnings and profits of the taxable year) to be paid within the taxable year in discharge of a debt, or to be irrevocably set aside within the taxable year for the discharge of a debt; to the extent that such amount has been so paid or set aside. For the purposes of this paragraph, a requirement to pay or set aside an amount equal to a percentage of earnings and profits shall be considered a requirement to pay or set aside such percentage of earnings and profits. As used in this paragraph, the word "debt" does not include a debt incurred after April 30, 1936. ↩