Exolon Co. v. Commissioner

THE EXOLON COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Exolon Co. v. Commissioner Docket No. 101276. United States Board of Tax Appeals 45 B.T.A. 844; 1941 BTA LEXIS 1060; December 2, 1941, Promulgated *1060 Petitioner, a domestic corporation with its main office in this country, operates a plant in Canada. Certain contracts were executed at such main office providing for sales of material to be thereafter manufactured at its Canadian plant. Delivery was to be made and title pass to the purchaser in Canada. Payment for the goods was to be made after delivery to the purchaser and at petitioner's home office in the United States. Held, that such sales were made in Canada, within the purview of section 119(e) of the Revenue Act of 1936. East Coast Oil Co., S.A.,31 B.T.A. 558; affd., 85 Fed.(2d) 322, followed. George H. B. Green, Esq., and David Burstein, Esq., for the petitioner. Henry C. Clark, Esq., for the respondent. LEECH *844 Respondent has determined a deficiency in income tax of $3,000.42 for the calendar year 1936. The issue is whether certain profits from the manufacture and sale of personal property should be treated as derived partly from sources within and partly from sources without the United States under section 119(e) of the Revenue Act of 1936. The parties have filed a formal stipulation*1061 of facts which we include herein by reference. A portion of such stipulation will be hereinafter set out for purposes of reference in connection with additional facts found upon testimony submitted at the hearing. Upon such testimony we find as follows: FINDINGS OF FACT. Petitioner is a domestic corporation engaged in the manufacture and sale of abrasive material. It filed its return for 1936 with the collector of internal revenue for the district of Massachusetts. It owns and operates a plant at Thorold, Canada, and one at Blasdell, New York, and maintains its principal office at the latter point. The Thorold plant produces what is termed crude ore, by a process of manufacture in electric furnaces. This material is there produced in the form of lumps of varying sizes according to specifications. The Blasdell plant is solely a finishing plant. The property involved in the sales which are the subject of the inquiry here consisted wholly of the products of the Thorold plant. Paragraph (2) of the formal stipulation reads as follows: (2) During 1936 the petitioner manufactured crude silicon carbide and aluminum oxide at its plant at Thorold, Canada. During said year*1062 it made sales of said crude materials entirely manufactured in Thorold, Canada and shipped to customers from Thorold, Canada, as set forth in the following four paragraphs: *845 (a) Orders were received at Blasdell, New York, from a customer in England and the customer was notified from Blasdell, New York, of the acceptance of the orders. The goods manufactured entirely in Canada were shipped from Thorold to the customer c.i.f. London. During transit the goods were entirely outside of the United States. The goods were sold upon the basis of net thirty days, payable in United States funds. The English customer paid the petitioner for the goods by forwarding from England to Blasdell, New York, drafts upon an American bank. The gross amount of goods sold by the petitioner in 1936 under this set of facts was $9,945.15 less allowances of $49.92, being a net of $9,895.23. (b) Orders were received at the petitioner's office at Thorold, Canada, from various customers located in Canada. The acceptance of these orders was made from the petitioner's office at Thorold, Canada. The goods were shipped from Thorold direct to the customers in Canada and during transit were entirely*1063 outside of the United States. The Canadian purchasers of these goods made payment in Canadian funds to the petitioner at its Thorold office. During 1936, under this set of facts, the petitioner sold goods in a gross amount of $2,947.50 less $14.73 allowances, being a net of $2,932.77. (c) Orders were received at Blasdell, New York, from Gerard Kluyskens Corporation of New York City. Such orders were accepted at Blasdell, New York. When the goods manufactured entirely in Canada were ready for shipment the petitioner sent Gerard Kluyskens Corporation an invoice and simultaneously shipped the goods f.o.b. Thorold, Canada, by ship to purchasers in England and Germany, to whom Gerard Kluyskens Corporation had resold the goods, pursuant to instructions from said Gerard Kluyskens Corporation. During transit the goods were entirely outside the United States. The petitioner received payment for the goods at Blasdell, New York, in American funds from said Gerard Kluyskens Corporation. The total amount of sales under this set of facts in 1936 was gross $107,953.88, less allowances $1,203.29, being a net amount of $106,750.59. (d) Orders were received at Blasdell, New York, from customers*1064 located within the United States and said orders were accepted from Blasdell, New York. The goods were shipped f.o.b. Thorold, Canada, to said customers at points within the United States. Payment was made by said customers in American funds to the petitioner at Blasdell, New York. In 1936 under this set of facts the petitioner sold a gross amount of $7,520.75 less allowances of $530.64, being a net of $6,990.11. The procedure followed with respect to sales of property specified in paragraph (2)(c) above was that the Gerard Kluyskens Corporation (hereinafter called Kluyskens), having interested some foreign user of abrasive materials, would get the price at which the petitioner would be willing to sell and would advise petitioner of the orders secured and inquire whether petitioner was prepared to make shipments of the material in accordance with the specifications required by its purchaser. Kluyskens did not purchase the material for its own use. The order received from Kluyskens by petitioner would specify the name of the ultimate purchaser of that particular order. The material ordered would be manufactured or produced after the orders were received and accepted. Such*1065 orders did not relate to goods then in existence or ascertained. To some extent they would be manufactured, especially, according to specifications, which *846 called for a somewhat different form of crude ore than that which the Thorold plant supplied the Blasdell plant in normal course for finishing at Blasdell. The transaction described in paragraph (2)(a) above was the only transaction with a foreign customer which was not handled through Kluyskens, but otherwise was similar in nature to those specified in paragraph (2)(c). Goods would be shipped from 30 to 60 days after the order was accepted, being manufactured in that period. The sales were on credit and payment was made from 30 to 60 days from the date of shipment. OPINION. LEECH: The parties are in agreement that the issue is determined by the answer to the question as to whether the sales of property set out in the findings were made within the United States under the provisions of section 119(e) of the Revenue Act of 1936. 1 It is not disputed that this property was produced wholly without the United States. Respondent admits that with respect to orders specified in paragraph (2)(b) of the stipulation*1066 above the sales were made in Canada. *1067 Respondent contends that, although the property was produced without the United States and was sold and delivered to foreign customers, *847 the orders for the merchandise having been received and accepted in the United States, the sale must be considered as taking place there and not in Canada, notwithstanding the fact that the goods for which the order had been accepted were not yet manufactured. He argues that the place where title passed to the purchaser is not determinative of the place of sale, but is merely incidental. We do not agree. We have consistently held that the word "sale" as used in section 119(e), supra, must be considered as having its usual and customary meaning and that the place of sale is where the title to the personal property passes to the purchaser. In ; affd., , we held that, under contracts executed in this country, sales to purchasers in this country, of oil to be produced or purchased in Mexico by the seller, although payment was to be made therefor in the United States, were sales occurring in Mexico since the contracts provided for delivery to the*1068 purchasers in Mexico or c.i.f. ports in the United States on shipments from Mexico by common carrier. In that case we said: Respondent points also to the fact that the contracts and the payments under them were made in this country, urging that here was the place of sale. Of course, the place of contract, the place of delivery and of payment, the terms of the agreement, and extraneous circumstances may each have a bearing. But the ultimate goal of the examination of all such considerations is to ascertain when and where the title to the goods passes from the seller to the buyer. It is then and there a sale is consummated - when and where property in the goods passes, when and where the incidents of ownership vest in the vendee. Such is the rule, long and firmly established. In its opinion affirming the decision of the Board in this case the Circuit Court said: * * * No profit resulted from the mere execution of the contracts. The oil was delivered to the buyer in Mexico. The title passed to the buyer in Mexico. When title passed the profit was earned in Mexico. Collection of the price in the United States was incidental and did not earn profit. *1069 In our recent decision in , we reaffirmed this rule in holding that, under contracts executed in the United States by a Puerto Rican corporation for the sale of rum produced in Puerto Rico and to be shipped to purchasers in the United States, the sales occurred in Puerto Rico, where the contracts provided for delivery to the purchaser under bills of lading vesting title in him at point of shipment in Puerto Rico. See also , and . Respondent contends that the present question is new and not controlled by our decisions in the cited cases because those involve foreign corporations, whereas the petitioner here is a domestic corporation. Respondent points to no reason nor is any apparent to *848 us why, in two identically similar transactions under contracts entered into at the same place for goods to be produced in a foreign country, a sale would immediately be effected if the party agreeing to sell was of foreign citizenship but would be delayed until actual transfer of title to the goods where such party was a citizen of the*1070 country in which the contract was executed. We think the issue is controlled by our decisions in the cited cases. Decision will be entered for the petitioner. Footnotes 1. SEC. 119. INCOME FROM SOURCES WITHIN UNITED STATES. * * * (e) INCOME FROM SOURCES PARTLY WITHIN AND PARTLY WITHOUT UNITED STATES. - Items of gross income, expenses, losses and deductions, other than those specified in subsections (a) and (c) of this section, shall be allocated or apportioned to sources within or without the United States, under rules and regulations prescribed by the Commissioner with the approval of the Secretary. Where items of gross income are separately allocated to sources within the United States, there shall be deducted (for the purpose of computing the net income therefrom) the expenses, losses, and other deductions properly apportioned or allocated thereto and a ratable part of other expenses, losses or other deductions which can not definitely be allocated to some item or class of gross income. The remainder, if any, shall be included in full as net income from sources within the United States. In the case of gross income derived from sources partly within and partly without the United States, the net income may first be computed by deducting the expenses, losses, or other deductions apportioned or allocated thereto and a ratable part of any expenses, losses, or other deductions which can not definitely be allocated to some items or class of gross income; and the portion of such net income attributable to sources within the United States may be determined by processes for formulas of general apportionment prescribed by the Commissioner with the approval of the Secretary. Gains, profits, and income from - (1) Transportation or other services rendered partly within and party without the United States, or (2) from the sale of personal property produced (in whole or in part) by the taxpayer within and sold without the United States, or produced (in whole or in part) by the taxpayer without and sold within the United States, shall be treated as derived partly from sources within and partly from sources without the United States. Gains, profits and income derived from the purchase of personal property within and its sale without the United States or from the purchase of personal property without and its sale within the United States, shall be treated as derived entirely from sources within the country in which sold, except that gains, profits, and income derived from the purchase of personal property within the United States and its sale within a possession of the United States or from the purchase of personal property within a possession of the United States and its sale within the United States shall be treated as derived partly from sources within and partly from sources without the United States. ↩