Epsen v. Commissioner

EDWARD J. EPSEN (FORMERLY EDWARD J. EPSTEN), PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Epsen v. Commissioner Docket No. 97914. United States Board of Tax Appeals 44 B.T.A. 322; 1941 BTA LEXIS 1344; April 29, 1941, Promulgated *1344 During 1928, in recognition of the valuable services theretofore rendered by the petitioner to a corporation of which he was an officer and stockholder and of which his father was president and owned a majority of the stock, and in recognition of the petitioner's desire to continue in the service of the corporation, his father agreed to sell him sufficient stock at $100 a share to constitute him the owner of a one-half interest in the business after the corporation had acquired certain shares of stock then owned by minority interest. During the petitioner's taxable year ended March 31, 1935, the corporation, for a consideration of $50 per share and valuable service, sold to petitioner 231 shares of its treasury stock, the stock at that time having a fair market value of $266.93 per share. Held, that the difference between $50 a share and the fair market value thereof represented compensation for services and constituted taxable income to the petitioner. Harry E. Judd, Esq., and William A. Schall, Esq., for the petitioner. Benjamin L. Bird, Esq., for the respondent. TURNER *322 The Commissioner determined a deficiency of $13,546.86*1345 in the petitioner's income tax for the fiscal year ended March 31, 1935. The issues presented are (1) whether the right given the petitioner to purchase at $50 a share 231 shares of stock in a corporation of which he was an officer was compensation; (2) whether said stock was purchased by the petitioner during the taxable year ended March 31, 1935; and (3) whether at the time of its receipt the stock had a fair market value of $266.93 per share as determined by respondent. FINDINGS OF FACT The petitioner is a resident of Omaha, Nebraska, and filed his income tax return for the fiscal year ended March 31, 1935, in the collection district of Nebraska. About the middle of 1910, the Hancock-Epstein Co. was incorporated under the laws of Nebraska to engage in the lithographing business, with its principal place of business at Omaha. Its authorized capital stock was $100,000, divided into $22,000 of preferred stock and $78,000 of common stock consisting of 780 shares of a par value of $100 each. The corporation began business in July 1910. Subsequently its name was changed to Epsten Lithographing Co. and afterwards to Epsen Lithographing Co., under which name it is now operating. *1346 *323 The petitioner's father, Edward C. Epsen, formerly Ed. C. Epstein and Ed. C. Edsten, was one of the organizers of the Hancock-Epstein Co., now Epsen Lithographing Co. By 1911 he had become vice president of the corporation and by 1915 had become its president. He has been president of the corporation continuously since 1927. In 1915, at the approximate age of 18 years, the petitioner entered the employment of the corporation and, except for a period during the World War, has remained continuously in its employ. In the beginning he worked as an apprentice in the plant, ran errands, and performed various minor duties. Later he was a salesman for the corporation and as such traveled extensively in the Middle West. After a year or two of service in that capacity, he was procuring most of the business for the corporation, but later was gradually shifted from work as salesman to executive duties. During the years 1927 and 1928 he was vice president of the corporation, having full charge of sales and exercising considerable executive authority. In 1928 and the years which have followed, the work of petitioner's father has been limited to the management of the art*1347 department and some supervision of manufacturing. Petitioner's work during that period has been that of supervising the selling activities, the advertising, the bookkeeping, the making of collections, and employing and managing personnle. Generally speaking, petitioner's father has centered his attention upon the art department and the petitioner has handled the remainder of the business. As an executive the petitioner proved successful and a very substantial part of the prosperity of the corporation has been due to his efforts. He has been secretary and treasurer of the corporation since about 1930. The petitioner acquired four shares of stock in 1918 and 15 shares in September of 1921. According to the record those shares have never been transferred or surrendered by him. Thirty-five shares of common stock were issued to him under date of December 30, 1921, and remained outstanding in his name until October 1, 1927, when they were assigned or surrendered to the corporation. On January 1, 1928, none of the preferred stock of the corporation was outstanding, while the outstanding common stock consisted of 394 shares, 269 of which were owned by the petitioner and his father, *1348 petitioner owning 19 shares. The 250 shares owned by the father stood 151 shares in the name of Edward C. Epsten and 99 shares in the name of Katherine Krine Epsten, petitioner's mother. The remaining 125 shares were owned 110 shares by H. V. Burkley and F. J. Burkley, 10 shares by F. G. Travis, and 5 shares by Sam Alperson. On or prior to that date, petitioner discussed with his father the idea of purchasing a substantial amount of stock of the *324 corporation. His father, considering the fact that he was growing older and was devoting more of his time to the art department and the further fact that the petitioner's past activities had been such as to give promise that he would prove successful in the business, was of the opinion that the petitioner was entitled to own a larger interest in the corporation. He felt that it would be fair and equitable for the petitioner to own one-half of the corporate stock and agreed orally that petitioner should have the right to acquire sufficient of his shares so as to constitute him the owner of one-half of the stock of the corporation outstanding after the stock then held by the Burkleys, Travis, and Alperson had been acquired by*1349 the corporation. Petitioner was to pay his father $100 per share for the stock. Thereafter, after, under date of January 10, 1928, his father prepared, signed, and delivered to petitioner a document reading as follows: This will acknowledge and confirm my previous verbal promise to my son Edw. J. Epsten to sell to him sufficient shares of my common stock holdings in the Epsten Lithographing Co. at par $100.00 per share, whenever the present outstanding stock of the outside shareholders is retired to the treasury, so that Edw. J. Epsten will own exactly one-half interest in the business. On February 8, 1928, the corporation purchased the 110 shares of stock owned by the Burkleys; on February 29, 1928, it acquired the 10 shares owned by Travis, and on April 9, 1930, the 5 shares owned by Alperson. Part of the purchase price of the 110 shares acquired from the Burkleys was evidenced by notes of the corporation and the certificates for the stock, although endorsed over to the corporation on February 8, 1928, and February 28 of the same year, were held by the Burkleys as collateral for the notes until payment of the last note, which occurred in February 1933. After purchase of*1350 the three blocks of stock, as outlined in this paragraph, the corporation had 269 shares outstanding, 19 of which were owned by the petitioner and 250 by his father. Nothing further was done with respect to the acquisition of additional shares by petitioner until early in 1934, when petitioner reminded his father of the promise outlined in the writing under date of January 10, 1928. Petitioner's father did not carry out his agreement to sell petitioner sufficient of his shares so as to make him owner of one-half of the outstanding stock of the corporation, but at a special meeting of the directors on April 3, 1934, authorization was given for the issuance to petitioner of 231 shares of the treasury common stock, for the consideration outlined in the resolution, which reads as follows: RESOLUTION WHEREAS, in consideration of a promise made by the Board of Directors several years ago, and in recognition of the valuable and faithful services of *325 Edw. J. Epsten, who has in fact had full responsibility for the practical and successful management of the business for many years, and in appreciation of his loyal and untiring efforts in building the business to its present*1351 status: Be it resolved that the president of the company authorize the issuance of 231 shares of the common stock of the corporation from the common stock of the treasury, for a consideration of $50.00 cash per share and valuable service. The above resolution was recorded in the minutes of the special meeting of the directors of the corporation on April 3, 1934, which minutes were signed "Ed. C. Epsten, President" and "Edw. J. Epsten, Secy-Treas." Under the authorization so made the petitioner thereafter and in the taxable year acquired the 231 shares of treasury common stock. The petitioner actually paid no cash to the corporation for the stock, his liability therefor being satisfied by a charge of $11,500 against his account with the corporation, in which he had an accumulated balance substantially in excess of the amount of the charge. The entries reflecting the charge of $11,500 were made on the books as of June 3, 1935, and the certificate for the 231 shares of stock was issued to petitioner under the same date. At a special meeting on May 24, 1935, the board of directors adopted a resolution to provide for only one class of stock, namely, common stock, the authorized*1352 amount thereof to be $100,000, said stock to be fully paid when issued; and to provide further that the stock might be issued for cash, as a stock dividend, for services, or for property useful or necessary to the corporation. At the same meeting the following resolution was also adopted: BE IT RESOLVED by the board of directors of the Epsten Lithographing Company that a stock dividend be declared to each holder of the common stock of the Corporation, of one share of the common stock for each share now held by the stockholders as is shown by the books of the corporation, and the President be empowered to issue to each stockholder the shares he is entitled to. Certificates covering the 100 percent stock dividend as authorized by the resolution just quoted were issued under date of June 3, 1935, as follows: Ed. C. Epsten, 151 shares, Katherine K. Epsten, 99 shares, and Edward J. Epsten, 250 shares. On his income tax return for the taxable year ended March 31, 1935, which was filed on the cash basis, the petitioner reported as salary, wages, commissions, fees, etc., received from the Epsen Lithographing Co. the amount of $17,232, of which amount $12,500 was received as a bonus. *1353 No amount was reported as income with respect to the 231 shares of stock acquired by the petitioner in that year from the corporation. In determining the deficiency the respondent determined that at the time of its sale to the petitioner the stock had a fair market value of $266.93 a share; that the stock was sold *326 to the petitioner at the low price of $50 a share in recognition of the services performed for and to be performed for the corporation; that the difference between the fair market value of the stock and the price paid constituted compensation for services and as such was taxable income to the petitioner for the fiscal year ended March 31, 1935. Accordingly, the respondent increased the petitioner's taxable income by the amount of $50,110.38, representing the difference between the price paid by the petitioner for the 231 shares of stock and the fair market value thereof as determined by him. OPINION. TURNER: The pleadings present three questions: (1) Whether the price petitioner was to pay for the shares of stock was fixed by the corporation at $50 per share so as to effect the payment of further compensation for services which petitioner had rendered*1354 to it; (2) whether the stock was acquired by the petitioner during the taxable year ended March 31, 1935; and (3) whether the fair market value of the stock at the time acquired by petitioner was $266.93. With respect to the fair market value of the stock at the date of its acquisition by petitioner, the petitioner has offered no proof, and we accordingly sustain the respondent's determination of $266.93 per share. With respect to the compensation issue, it is the contention of the petitioner that the stock was obtained under an option granted to him by his father on January 10, 1928, and in no respect constituted compensation for services rendered by him to the corporation. In that connection it is noted that the option referred to provided that the petitioner should have the privilege of buying at $100 per share a sufficient number of the shares owned by his father so as to make him the owner of one-half of the shares of stock outstanding after the shares then owned by certain minority interests had been retired. During the interval from January 10, 1928, to April 3, 1934, the corporation had been very successful and the efforts of petitioner had been largely responsible for*1355 that success. No explanation is offered, nor is any reason given, why petitioner's father did not carry out his agreement to sell the petitioner a sufficient number of his shares of stock to constitute petitioner the owner of one-half of the shares outstanding other than what may be inferred and concluded from the resolution of April 3, 1934. The argument seems to be that the transaction as carried out was in fact no different from that indicated by the option, since the total amount petitioner would have had to pay his father at $100 per share for 115 1/2 shares, being the number of shares that would have been required under the option, is exactly the same, namely, $11,500, as the amount of cash paid by petitioner *327 to the corporation for 231 shares at $50 per share. Such an argument, if it may be termed an argument, does not negative, however, the fact that the stock here in question was acquired from the corporation and not petitioner's father, nor the reasons as expressed in the corporate resolution of April 3, 1934, for selling the 231 shares of stock to petitioner at $50 per share. In that resolution it is stated that "in recognition of the valuable and faithful*1356 services of Edw. J. Epsten who has in fact had full responsibility for the practical and successful management of the business for many years and in appreciation of his loyal and untiring efforts in building the business" to its then existing status it is "resolved that the president of the Company authorize the issuance of 231 shares of the common stock of the corporation from the common stock of the treasury, for a consideration of $50.00 cash per share and valuable service." Regardless of the fact that the petitioner may have had some claim on his father for 115 1/2 shares at $100 per share, 115 1/2 being a sufficient number of his father's shares to constitute petitioner the owner of one-half of the shares outstanding, and regardless of the fact that that promise may have had some bearing upon the action of the corporation, the fact remains that the petitioner acquired 231 shares at $50 cash per share not from his father, but from the treasury stock of the corporation, and a part of the consideration for such stock was the valuable service which had been rendered during the interval by petitioner to the corporation. The petitioner makes an argument, however, which in effect*1357 is that the resolution does not mean what it says and some of the answers elicited by petitioner's counsel from the petitioner and his father seemed directed to the thought that no directors' meeting was held on April 3, 1934, and that the resolution was written up not to indicate action taken but for the benefit of petitioner's two younger brothers in the event they might later complain that the father had discriminated against them in favor of petitioner. The resolution as set forth in our findings of fact regularly appeared as a part of the corporate minutes at the time respondent's agent made his examination herein in 1936, which minutes were signed by Ed. C. Epsten, as president, and Edward J. Epsten, as secretary and treasurer. Later at a formal conference in the office of the revenue agent in charge in Omaha petitioner and his counsel presented what purported to be the minutes of the meeting of April 3, 1934, claiming that the resolution as set forth therein was the correct resolution. The resolution so submitted read as follows: RESOLUTION WHEREAS, in consideration of an agreement or promise of Ed. C. Epsten several years ago to sell Edw. J. Epsten a sufficient portion*1358 of his holdings at *328 not over par value so that the stock holdings of Ed. C. Epsten and Edw. J. Epsten would be identical, and to simplify the mechanics of fulfilling this promise: BE IT RESOLVED that the President of the Company authorize the issuance of two hundred and thirty-one (231) shares of the common stock of the Corporation from the common stock in the treasury, for a consideration of fifty dollars ($50.00) cash per share. The explanation offered with respect to the absence from the minute book of the minutes as they originally stood was "We haven't them any more; they have been destroyed." At the hearing in this proceeding the minute book was produced and the resolution appearing therein as having been adopted at the directors' meeting of April 3, 1934, was in the same form and words as it appeared originally, one difference being however that the minutes produced at the hearing were not signed. In the light of the above, it is our conclusion that the resolution as it appears in our findings of fact was regularly adopted by the board of directors on April 3, 1934, and properly reflects the action of the board of directors taken on that day. That resolution, *1359 as we have previously indicated, shows that the consideration for the 231 shares of common stock of the corporation sold to petitioner was $50 per share and the valuable services which had been rendered to the corporation by the petitioner. Having acquired the said shares for the consideration stated, compensation was realized by petitioner in an amount equal to the difference between the price paid by him for the stock and the fair market value of said stock. ; ; and . Cf. ; ; and . The remaining contention of the petitioner is that in any event the stock was not acquired until after the close of the taxable year, and even though he did receive compensation for services rendered as a result of the transaction, such compensation was not received during the taxable year. He relies on entries made in the books of account and in the stock book to show that the stock*1360 was not acquired by him until June 3, 1935. Answering this contention of the petitioner, the respondent relies, among other things, on the statements appearing in an affidavit signed by petitioner and in an affidavit signed by his father submitted to the respondent in protest of any determination that the petitioner realized any sum as compensation upon the purchase of said shares. In both of the affidavits it is stated that the stock was acquired by the petitioner in 1934. The explanation offered by the petitioner and his father when they appeared as witnesses at the hearing was that these affidavits were prepared by others and that they were not then aware of the entries appearing on the corporate books under date of June 3, 1935. Such action on *329 the part of these two individuals to say the least indicates a careless disregard of the importance of an oath. Furthermore in our opinion the statements appearing in the affidavits rather than the statements made from the witness stand present the true picture. In the resolution adopted on May 24, 1935, it was provided that there should be issued as a stock dividend to each holder of common stock of the corporation one*1361 share of common stock for each share "now held by the stockholders as is shown by the books of the corporation." Under authority of that resolution 250 shares of stock were issued to petitioner as a stock dividend. If petitioner had not acquired the original 231 shares here in question until June 3, 1935, as he now contends, he would not, according to the resolution of May 24, have been entitled to 231 shares of the stock dividend distributed to and received by him. The charge against petitioner's personal account as of June 3, 1935, to cover payment of the $50 per share for the stock was apparently only a belated entry to cover a transaction regarded by all of the interested parties as having been previously concluded. The respondent's determination that the stock was acquired by the petitioner in the taxable year is supported by the acts of the parties themselves, their attitude with respect to the ownership of the stock, and the statements contained in the affidavits previously submitted to the respondent by the petitioner and his father. We accordingly conclude that the stock was acquired in the taxable year and sustain the respondent's determination. Decision will be*1362 entered for the respondent.