Smoak v. Commissioner

ELLIOTT B. SMOAK, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Smoak v. Commissioner Docket No. 100036. United States Board of Tax Appeals 43 B.T.A. 907; 1941 BTA LEXIS 1432; March 13, 1941, Promulgated *1432 On February 26, 1934, the petitioner accepted an exclusive agency for leasing and licensing machines used in distributing milk and other dairy products in paper containers. He was to receive a portion of the royalties paid by the lessees or licensees in his territory. On April 23, 1936, the petitioner sold all of his interest in the agency contract for $26,000 cash and $19,200 additional, payable $200 per month for a period of eight years. He received from the vendee $27,600 in 1936 and $2,400 in 1937. Held, that the gains were capital gains. Frank B. Murdoch, Esq., for the petitioner. Bernard D. Daniels, Esq., for the respondent. SMITH *907 The respondent determined deficiencies in income tax for the years 1936 and 1937 of $1,759.78 and $45.60, respectively. The petitioner alleges that the respondent erred in treating the gains from the sale of an agency contract as ordinary income rather than as capital gains under section 117(a) of the Revenue Act of 1936. FINDINGS OF FACT. The petitioner is a resident of Philadelphia, Pennsylvania. He made his income tax returns for 1936 and 1937 to the collector at Philadelphia. For*1433 a number of years prior to 1936 the petitioner had been engaged in the production and distribution phases of the dairy industry. He had pioneered in the packaging of milk in paper containers and had successfully fistributed milk in such containers in the Philadelphia area under the title of "Sylvan Seal." About the beginning of 1936 the petitioner negotiated with the American Paper Bottle Co., of Toledo, Ohio, for the agency of that *908 company for the leasing and licensing of machines to package milk in paper containers. He entered into an oral agreement with the company to act as its agent for such machines in the territory of the United States east of the Rocky Mountains, effective February 26, 1934. The contract was reduced to writing under date of August 1, 1934. Under this contract the petitioner agreed to set up a sales organization for the leasing or licensing of the machines to dairy companies throughout his territory, and to undertake the installation and minor maintenance of such machines. Under this contract the petitioner was to receive a portion of the royalties paid by the lessees or licensees in his territory. Pursuant to this contract the petitioner, *1434 at his own expense, set up an office, established a sales and service organization, instituted an extensive advertising campaign, and proceeded to negotiate for the rental, installation, and minor maintenance of the machines. He expended a considerable amount of his own money in establishing such agency, estimated by him at from $25,000 to $26,000. On March 23, 1935, the American Paper Bottle Co. pooled its rights with the EX-Cell-O Aircraft & Tool Corporation. The EX-Cell-O Aircraft & Tool Corporation decided to market, service, and repair the machines through its own established agencies and negotiated with the petitioner for the acquisition of all of his interests in the agency contract which he held with the American Paper Bottle Co. Such an agreement was entered into on April 23, 1936, and reads in material part as follows: AGREEMENT, made this 23rd day of April, A.D., 1936, between ELLIOTT B. SMOAK, of PhiladelphiaPennsylvania (hereinafter called Smoak), and EXCELL-O AIRCRAFT AND TOOL CORPORATION, a corporation, of Detroit, Michigan, (hereinafter called EX-Cell-O). WHEREAS, Smoak on February 26, 1934 entered into a contract with the American Paper Bottle Company, a*1435 corporation of Toledo, Ohio, (hereinafter called Bottle Company), which was reduced to writing and executed on August 1, 1934, whereby Smoak was granted a certain exclusive sales agency, together with certain rights, royalties and other compensation; and * * * WHEREAS, EX-Cell-O wishes to purchase all of the right, title and interest of Smoak in the foregoing agreement and to acquire the sales agency therein provided for; and WHEREAS, Smoak has agreed to sell and relinquish all of his right, title and interest in and to said contract and the sales agency provided for therein for the sum of Twenty-six thousand Dollars (26,000) cash and the sum of Nineteen thousand two hundred Dollars ($19,200.) payable Two hundred Dollars ($200.00) monthly for eight years commencing May 15, 1936; Now, THEREFORE, IT IS AGREED between EX-Cell-O and Smoak as follows: Smoak, in consideration of the sum of Twenty-six thousand Dollars ($26,000.) cash to him in hand paid, receipt whereof is hereby confessed and acknowledged, and in comsideration of the further sum of Nineteen thousand two hundred Dollars ($19,200) to be paid in installments of Two hundred Dollars ($200.00) *909 each month*1436 commencing May 15, 1936, does hereby sell transfer and set over unto EX-Cell-O all the right, title, interest, royalties, benefits and advantages to be derived by Smoak under and by virtue of the aforesaid contract of February 26, 1934; and he does hereby relinquish any and all rights conferred upon him thereby, or by any subsequent assignment thereof; and does hereby release both Bottle Company and EX-Cell-O from any and all obligations thereunder or which flow either directly or indirectly therefrom. Smoak also assigns, transfers and sells to EX-Cell-O all of his files pertaining to the sale of Pure-Pak-Paper Bottle Machinery. Under the above sales agreement the petitioner received from EX-Cell-O Aircraft & Tool Corporation $27,600 in 1936 and $2,400 in 1937 which, in his returns for those years, he reported as capital gains taxable under section 117(a) of the Revenue Act of 1936 to the extent of 60 percent thereof. The respondent has determined that the amounts of such gains are taxable to the petitioner in toto as ordinary income. OPINION. SMITH: In his deficiency notice in this proceeding the respondent states: (a) You have treated as capital gains to the extent*1437 limited by Section 117(a) of the Revenue Act of 1936, the payments made to you in 1936 [and 1937] by the EX-Cell-O Aircraft and Tool Corporation, successors to the American Paper Bottle Company, and included in net income 60 percent of the amount received. It is held that there was no sale or exchange of a capital asset within the meaning of Section 117(a) of the Revenue Act of 1936, and that the full amount of the payments should be included in your gross income. * * * At the hearing counsel for the respondent stated: * * * It is the Government's position, however, that there was no sale of a contract. There was a termination or cancellation of a contract as the result of which Mr. Smoak received income in 1936 and 1937. It is our position that the income so received is ordinary income, and not capital gain. The petitioner alleges that the respondent erred in his determination that the amounts received by him in 1936 and 1937 from the EX-Cell-O Aircraft & Tool Corporation were not from the sale of a capital asset. We limit our discussion to the issue raised. Section 117(b) of the Revenue Act of 1936 defines "capital assets" as meaning: * * * property held by the*1438 taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. In support of his contention that the gains realized by the petitioner in 1936 and 1937 were not from the sale of capital assets, the respondent relies upon the following cases: ; *910 ; , affirming ; and . By the agreement of April 23, 1936, the petitioner transferred to the EX-Cell-O Aircraft & Tool Corporation all of the rights inuring to him from the original contract with the American Paper Bottle Co. He relinquished his exclusive right to develop the sales territory allotted to him, the right to all royalties from future sales within*1439 taht territory, and his right to the future royalties to be paid by existing licensees. He transferred also his office files and records and the good will which he had built up over the course of two years. This was much more than the assignment of a mere contractual right to receive royalties in the future. The petitioner had a going agency business. He sold all of the assets of that business, with all of his rights under the agency contract to the EX-Cell-O Aircraft & Tool Corporation. In , the Board held that a partner's sale of his interest in a partnership engaged in buying and selling securities constituted the sale of a capital asset. It the sale by a partner of his interest in a partnership is the sale of a capital asset, where the partner has been a member of a firm for more than two years, a fortiori, the sale of an agency business held for a period of more than two years is likewise a sale of a capital asset. We think that the cases cited by the respondent in support of his contention that the petitioner did not sell a capital asset are not in point. *1440 The cases of , and , involved the cancellation of unexpired employment contracts by the terms of which the employee was bound to perform services before he was entitled to any compensation. The right held by the employee was only a conditional right to receive something in the future. The relinquishment of that right to compensation for future services was held not to be a sale of property within the contemplation of the capital gains provisions of the revenue acts. The cases of , and , are not factually similar to the instant proceeding. In , an attorney, upon the liquidation of his firm, accepted a certain sum in exchange for his interest in fees to be received. It was held that the amount received was merely a commutation of the fee later to be received. It was for personal services performed and constituted taxable income. In the Escher case a similar ruling was made with respect to the sum received by an attorney under a contract providing for*1441 the payment of a proportion of the amount recovered by his client in lieu of a claim for past services and compensation for services to be rendered. *911 What the petitioner sold was an agency business. Since he had owned the agency for a period of more than two years at the date of sale, it was a capital asset. The action of the respondent in including in petitioner's gross income for each of the years 1936 and 1937 the full amount received from the EX-Cell-O Aircraft & Tool Corporation is reversed. Decision will be entered under Rule 50.