Capital Estates, Inc. v. Commissioner

CAPITAL ESTATES, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Capital Estates, Inc. v. Commissioner Docket No. 104036. United States Board of Tax Appeals 46 B.T.A. 986; 1942 BTA LEXIS 792; April 17, 1942, Promulgated *792 1. A corporation proposing to declare a stock dividend sent a notice to shareholders seeming to give each an election to choose stock or cash but adding that, since it had insufficient cash, the dividend would, in the event that cash were chosen, be passed. No shareholder "elected" cash, and the dividend was declared in stock without reference in the resolution to any election. Held, that no election was given; that, under section 115(f)(2), Revenue Act of 1936, the stock dividend was not taxable to the shareholders, and that it did not provide the basis for a dividends paid credit under section 27(e). 2. Upon a petition based on a notice of deficiency in petitioner's income tax, the Board has jurisdiction to determine a claim for offsetting credit of income tax improperly paid by petitioner as withholding agent. 3. A withholding agent who made an overpayment, held, not entitled under section 143(f) to an offsetting credit therefor, it appearing that the overpaid amount was actually withheld from the primary taxpayer. James B. Howe, Esq., for the petitioner. Harry R. Horrow, Esq., for the respondent. STERNHAGEN *986 The Commissioner*793 determined a deficiency of $37,941.85 in petitioner's income tax for the fiscal year ended June 30, 1937. Petitioner *987 seeks a dividends paid credit for the value of shares of its stock distributed as a dividend, alleging that the dividend was taxable to shareholders because payable in cash or stock at the shareholder's election and so a proper basis for credit under section 27(e), Revenue Act of 1936. FINDINGS OF FACT. Petitioner is a Delaware corporation, with principal office at Vancouver, British Columbia. It was organized in 1934 with an authorized capital stock of 250,000 $1 par value common shares, its sole class of stock. About the time of organization, it issued 180,315 shares to the Coast Breweries, Ltd., a Canadian corporation, and received therefor shares of the General Brewing Corporation, a California corporation. Coast Breweries promptly distributed petitioner's shares among its shareholders, and petitioner has since had over 1,500 shareholders, most of them citizens and residents of Canada. In November 1936 the par value of its share was increased from $1 to $6, and by January 8, 1937, there were outstanding 200,000 shares. Its principal assets*794 are shares of other corporations. Petitioner's officers kept in close touch with officers of the General Brewing Corporation, and in October 1936 were aware that General Brewing would soon declare a dividend payable in shares or cash at the shareholder's election. The officers thought it advisable for petitioner to declare a stock dividend after receipt of the General Brewing dividend, and sought the advice of Price, Waterhouse & Co. as to the manner having the most advantageous tax consequences. They were advised that petitioner would be entitled to a dividends paid credit only if its stock dividend were taxable to the receiving shareholder and that it would be taxable if payable in cash or stock at the shareholder's election. At a shareholders' meeting of November 18, 1936, the chairman reported this opinion, and: IT WAS ACCORDINGLY UNANIMOUSLY RESOLVED: IN VIEW that the Company expects to receive a dividend in stock from General Brewing Corporation; AND IN VIEW also that the Company will suffer a tax known as the Undistributed Profits Tax unless a dividend is declared by the Company; AND IN VIEW that the Company has no means of paying the dividend except by a dividend*795 in stock; AND IN VIEW that, if declared, shareholders must be given the option of taking any dividend so declared in cash or in stock; AND IN VIEW that your directors wish a clear mandate from the shareholders that, if declared by the Directors, the dividend will be taken by the shareholders in stock; THAT the approval of the shareholders be given to the proposal of the Directors to the distribution of a dividend in shares of the Company. General Brewing declared the expected dividend, payable at the rate of $2.50 cash or 1/5 share of stock on each of its shares. On December *988 24, 1936, petitioner elected to take cash on 428 of its General Brewing shares and stock on the remaining 75,587. On the same date petitioner's secretary sent to its shareholders a printed notice that petitioner: proposes to declare a dividend during the month of January next, of which ninety per cent (90%) will be declared payable in stock and ten per cent (10%) in cash. It was explained that the 10 percent cash would be paid directly to the United States Government as a tax on the dividend. In declaring a dividend in stock the Company is obliged by the Law of the United States to*796 make an alternative offer of cash. If you were to elect to take a cash dividend you would be entitled to receive One ($1.00) Dollar per share. If you elect to take stock you will receive one share for each six and one-half shares held by you. The Company has not the money to pay the dividend in cash, so that, if you were to elect to take cash, the Company would be compelled to pass the dividend altogether * * *. Will you kindly sign and return the enclosed election immediately * * *? The "election" was as follows: With regard to the dividend about to be declared by you, of which all or part will be available in shares of the Company rather than in cash, I hereby elect to take shares for my dividend. Many signed "elections" were returned, and on January 12, 1937, petitioner's directors passed a resolution: that a dividend be declared payable to shareholders of record on the books of the Company as at January 8, 1937; the said dividend to be ninety (90%) per cent payable in stock and ten (10%) per cent payable in cash, viz., one (1) share of stock and the sum of sixty-six (66??) cents for each six and one-half shares held; the cash to be paid by the Company direct to*797 the Government of the United States in payment of the income tax payable on this dividend by all shareholders who are not citizens of the United States. In the case of United States citizens who are shareholders of the Company, the 66?? will be forwarded direct to said shareholders. In payment of this dividend petitioner issued 30,769 additional shares of its stock, paid to shareholders residing in the United States $474.79, representing 66?? for each six and one-half shares held by them, and, as withholding agent, paid $10,253.54 to the Collector of Internal Revenue at Wilmington, Delaware, representing a 5 percent tax regarded as payable at the source on the dividend distributed to citizens and residents of Canada. As the rate of tax to be withheld was 10 percent when the 66?? was fixed in the resolution, a subsequent limitation to 5 percent under a "Reciprocal Tax Convention" between the United States and Canada left $9,579.29 covered by the declaration, but petitioner did not distribute this to shareholders. The fair market value of the shares distributed as a dividend was $184,614 at the time of distribution. Petitioner had earnings and profits available during the fiscal*798 year ended June 30, 1937, in excess of this amount, and on January 1, 1937, had over $30,000 cash. During January 1937 petitioner's *989 shares were sold on the stock exchange at prices ranging from $9.50 to $7.85 a share. It has never paid any other dividend. OPINION. STERNHAGEN: 1. Petitioner demands a dividends paid credit under Revenue Act of 1936, section 27(e), 1 and to that end seeks to establish that the dividend paid by it in January 1937 was not such a nonincome dividend as is covered by section 115(f)(1), 2 but a taxable dividend in the hands of the shareholders, as set forth in section 115(f)(2). 3 Although the shareholders are not here, their duty to include the dividend in their income must be determined as the foundation for the petitioner's case, since its dividends paid credit can only exist if to the shareholders the dividend is taxable. The credit of the corporation is correlative with the taxability of the shareholders. To prove that the dividend "constitutes a taxable dividend in the hands of all shareholders" under section 115(f)(2), petitioner seeks to prove that it was, at the election of the shareholders, payable either in its stock or*799 in money. *800 We are of opinion that the payment of the dividend in the alternative was not permissible but that as to 90 percent it was required to be made only in stock. The shareholders had no election. The dividend was in fact paid in stock, but petitioner says that this was because all the shareholders exercised an election to have it so payable, and that the company's intention was that they should have such an election. We think that this has not been supported. The intention was that petitioner should have a dividends paid credit, as the Brewing Co. had, and petitioner was ready to go a long way to get it; but for some reason it failed to give the election, as the Brewing Co. had. When the dividend was declared by the directors, the resolution described it as payable 90 percent in stock and 10 percent in cash, i.e., *990 one share and 66?? for each 6 1/2 shares held. Not a word was said about an election or which would give a shareholder a right to demand anything other than one share and 66?? for each 6 1/2 shares held. The earlier notice to the shareholders was not the declaration of the dividend, but was an inquiry which turned out to be without substance. *801 It was couched with extreme subtlety. It stated first, in the subjunctive, that if the shareholder were to elect to take a cash dividend he would be entitled to receive one dollar per share, and then, "if you elect to take stock you will receive one share for each 6 1/2 shares held." He was then told that an election to take cash would frustrate the dividend altogether, since, as he already knew, "the company has no means of paying the dividend except by a dividend in stock." Even if these had been the terms of the actual declaration, they would have presented but a Hobson's choice - an "or else" - which was not a true election between two available dividends, but a choice between a stock dividend and no dividend at all. Cf. Skenandoa Rayon Corporation v. Commissioner, 122 Fed.(2d) 268; certiorari denied, 314 U.S. 696. Since a true stock dividend in the present state of the law is not income, Eisner v. Macomber,252 U.S. 189, it would be frivolous to attempt to compel the shareholders to include the dividend in income merely because the corporation had made this hypothetical statement and asked them to sign a*802 paper which it called an "election", recognizing in terms that the dividend was only available in shares. Cf. Pacific Grape Products Co.,42 B.T.A. 914; Humphryes Manufacturing Co.,45 B.T.A. 114. No force can be given to the shareholders' resolution of November 18, 1936, giving their approval to the directors' proposal of a stock dividend, even though it was passed in response to the directors' wish for a "clear mandate" and recited the importance of the shareholders' option of taking cash or stock. Shareholders have nothing to say in control of the kind of a dividend; they must abide by the action of the directors, who alone are responsible for the choice of its terms. Gibbons v. Mahon,136 U.S. 549; Long v. Rike, 50 Fed.(2d) 124. The shareholders' resolution was merely hortatory. Petitioner recognizes the devastating effect of the language of the declaration in the resolution as set forth in its minute book, and has introduced oral testimony of the recollection of three of the derectors who attended the meeting. Such evidence might conceivably serve to disclose the action of the directors' meeting*803 better than the formal minutes, and its tendency to do so is enough to justify its admissibility. But the testimony must be weighed with the other evidence to find the facts. The recollections of the witnesses several years after the meeting were not clear an their testimony was not convincing. The other evidence indicates that the tentative thought of making the *991 dividend elective was not in fact carried out because the corporation was not in a cash position to enable it to incur the risk of carrying it out. The corporation was in a dilemma and resolved it by foregoing the tax credit and having the assurance that it would not distribute cash; it kept the cash and let the credit go (to borrow from the) Rubaiyat). Since we hold that no election was given the shareholders, it is unnecessary to discuss the meaning of the parenthetical provision permitting an election to be exercised before or after the declaration of the dividend. It is enough to say that it assumes that by the declaration an election will be given, and permits its exercise to be made either before or after the declaration. The respondent's disallowance of dividends paid credit is sustained. *804 2. The petitioner, failing in the claim for a dividends paid credit, demands that the deficiency be reduced by the amount of tax on the stock dividend which was erroneously withheld by it and paid as withholding agent to the collector at Wilmington. The respondent, without disputing the error of petitioner's withholding and payment, contends that the Board has no jurisdiction to apply such an offsetting credit, and that section 143(f) 4 prohibits the credit. In Houston Street Corporation v. Commissioner, 84 Fed.(2d) 821, it was held that the Board has jurisdiction to redetermine a deficiency in income tax for which a withholding agent is in the first instance liable. Thereafter the Commissioner, in G.C.M. 17274, C.B. XVI-1, p. 159, adopted the view, arising from the Houston Street opinion, that the administrative*805 provisions and jurisdiction of the Board relating to an ordinary deficiency of a primary taxpayer were equally applicable to a tax collectible from a withholding agent. We can see no reason why the jurisdiction of the Board, which is now sufficient to comprehend a petition by a withholding agent assailing a deficiency in the withheld tax, should not also be sufficient to comprehend a claim by the same withholding agent that an erroneous withholding and payment of a purported tax should reduce a deficiency otherwise determined under the same title of the act. The claim for offsetting credit is, however, met by the last clause of section 143(f). The credit is to be made, under the section, to a withholding agent who makes an overpayment "unless the amount of such tax was actually withheld by the withholding agent." This means actually withheld from the primary taxpayer. Pauker v. United States,23 Fed.Supp. 821. The evidence shows that the amount *992 of tax paid by petitioner to the Wilmington collector was in fact withheld, and there is nothing to justify an inference that the petitioner has counteracted this withholding by paying or distributing the*806 amount to the shareholders. Indeed it appears that the additional amount of $9,579.29, which, after the amendment of the Canadian Treaty, was released from the charge of half (5 percent) of the original 10 percent tax, is still withheld by the petitioner from the shareholders, and from this it may be inferred that the $10,253.54 is likewise withheld from the shareholders. Manifestly, if the withholding agent is given a refund or a credit against its own deficiency and is able to withhold the refunded amount from the shareholders, it may be benefiting by the credit in precisely the way that the restrictive clause of the section was intended to prevent. We are of opinion that no refund or credit may be made. Decision will be entered under Rule 50. Footnotes 1. SEC. 27. CORPORATION CREDIT FOR DIVIDENDS PAID. * * * (e) TAXABLE STOCK DIVIDENDS. - In case of a stock dividend or stock right which is a taxable dividend in the hands of shareholders under section 115(f), the dividends paid credit with respect thereto shall be the fair market value of the stock or the stock right at the time of payment. ↩ 2. SEC. 115. DISTRIBUTIONS BY CORPORATIONS. * * * (f) STOCK DIVIDENDS. - (1) GENERAL RULE. - A distribution made by a corporation to its shareholders in its stock or in rights to acquire its stock shall not be treated as a dividend to the extent that it does not constitute income to the shareholder within the meaning of the Sixteenth Amendment to the Constitution↩. 3. (2) ELECTION OF SHAREHOLDERS AS TO MEDIUM OF PAYMENT. - Whenever a distribution by a corporation is, at the election of any of the shareholders (whether exercised before or after the declaration thereof), payable either (A) in its stock or in rights to acquire its stock, of a class which if distributed without election would be exempt from tax under paragraph (1), or (B) in money or any other property (including its stock or in rights to acquire its stock, of a class which if distributed without election would not be exempt from tax under paragraph (1)), then the distribution shall constitute a taxable dividend in the hands of all shareholders, regardless of the medium in which paid. ↩ 4. SEC. 143. WITHHOLDING OF TAX AT SOURCE. * * * (f) REFUNDS AND CREDITS. - Where there has been asn overpayment of tax under this section any refund or credit made under the provisions of section 322 shall be made to the withholding agent unless the amount of such tax was actually withheld by the withholding agent. ↩