549 F.2d 740 | Ct. Cl. | 1977
Lead Opinion
OPINION
This case comes before the court on plaintiff’s and defendant’s exceptions to the recommended decision of Trial Judge John P. Wiese, filed December 15,1975, pursuant to Rule 134(h), having been submitted to the court on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge’s recom
OPINION OP TRIAL JUDGE
On November 24, 1964, a wholly owned subsidiary distributed to its parent corporation, plaintiff here, ownership of all the outstanding stock that it held in plaintiff’s second-tier subsidiary. Immediately after this transfer, plaintiff sold the stock of both subsidiaries to an unrelated third party pursuant to a then-outstanding offer to purchase. The question that is raised in the case is whether the transfer of stock to plaintiff should be treated as an inter-corporate dividend, a characterization which would here allow for an essentially tax-free transfer of basis to Basic, or, following the Government’s position, is a transfer to be ignored for tax purposes, thereby yielding 'an increase in the capital gain which plaintiff realized from its sale of the stock of the two companies. The conclusion reached is that, for tax purposes, the dividend is to be disregarded and that plaintiff’s gain on the sale should be increased by the corresponding amount.
I. Facts
A. Plaintiff, Basic Incorporated (hereinafter Basic), is an Ohio corporation whose principal business involves the production and sale of basic refractory materials for use largely in steel-maláng furnaces. In May of 1963, Falls Industries Incorporated (hereinafter Falls), became a wholly owned subsidiary of Basic through a merger carried out by an exchange of Basic’s cumulative convertible preference shares for the outstanding shares of Falls. At the time of this acquisition, Falls was engaged in the manufacture and sale of processing equipment made wholly or in part from impervious graphite 'and certain specialized carbon and graphite
On January 1, 1964, Falls transferred its Sanborn plant and related assets, having an adjusted basis of $501,869.75, to a then newly organized New York corporation called Basic Carbon Corporation (hereinafter Carbon). In return for this transfer of assets, Falls received all the stock of Carbon. Thus, as of January 1,1964, Basic owned all the outstanding stock of Falls and Falls, in turn, owned all of the outstanding stock of Carbon. This configuration, expressed in more traditional terms, identified Basic as the parent corporation, Falls as the first-tier subsidiary, and Carbon as the second-tier subsidiary.
In August 1964, discussions were initiated between Basic and The Carborundum Company of Niagara Falls, New York (hereinafter also Carborundum), concerning possible business transactions between the two companies. Initially, these discussions focused only upon a merger between the two companies. However, by early October 1964, the discussions had also come to include the possibility of a partnership between Basic and Carborundum that would jointly expand the carbon and graphite business of Falls and Carbon as well as the possibility of a sale of this business to Carborundum. By the end of October, Basic had decided against the merger route and it had also come to realize that it could not afford the simultaneous capital outlays that would be required for the continuous development of its basic refractory business on the one hand and the costs involved in going forward with the intended expansion of the carbon and graphite business on the other. Accordingly, sale of the carbon and graphite business became the choice that Basic determined it would follow.
Subsequently, on November 6, 1964, at a meeting of the corporate officers of Basic and Carborundum, a purchase price for the carbon and graphite business was tentatively agreed upon between the respective board chairmen of the two companies. The price was tentatively set at $3,985,000 plus an assurance from the buyer, Carborundum, guaranteeing the repayment to Basic of $1,000,000 which that company had previously advanced to Carbon. However, as to the
In the course of the further negotiations that followed, Carborundum first proposed that it purchase all the assets of Falls and Carbon. To this Basic responded that the tentative price would have to be increased by $265,000 in order to allow for various tax and management considerations. Additionally, Basic demanded that Carborundum also agree to indemnify Basic for any further tax assessments that might become payable on the transaction in excess of those which Basic could anticipate and compute in advance. These considerations were unacceptable to Carborundum.
Inasmuch as Carborundum was chiefly interested in acquiring the assets of Falls and Carbon, it next proposed that it purchase from Basic, directly, the Falls stock and the Carbon stock. Its purpose in making this second proposal was to enable it to buy the stock of both companies for cash, to thereafter liquidate the companies so as to thereby acquire their assets and then to allocate the aggregate purchase price to the respective assets.
This second proposal was made by Carborundum because it was seen by that company to be in its own best interests; the proposal was not made by that company for the purpose of specifically granting Basic any tax advantages that might not otherwise result were the transaction to be cast in a different form. In a report to the board of directors of Carborundum, dated November 17, 1964, it was explained that, while Carborundum would have preferred to purchase assets only, it remained advantageous for Carborundum to purchase the stock of Falls and the stock of Carbon directly from Basic and that Basic would, therefore, be requested to transfer the ownership of Carbon from Falls to Basic prior to the transaction.
Basic, for its part, considered the tax consequences of the proposed transaction as well as the alternative approaches that might be taken. It found the second proposal to be satisfactory.
On November 23, 1964, Carborundum submitted a formal offer to Basic conforming with the terms previously discussed. Thus, the offer proposed to: (a) purchase from Basic
On November 24, 1964, one day after Carborundum had made its formal offer to Basic, a special meeting of the board of directors of Falls was held. At this meeting, which was attended by a quorum of Falls’ directors, it was reported that the company’s sole shareholder, Basic, had been discussing with The Carborundum Company the sale to Carborundum of the shares of Falls’ wholly owned subsidiary, Carbon. It was also reported that Carborundum was insisting that it purchase these shares from Basic rather than from Falls directly. Accordingly, at this same meeting, the chairman of the board of Basic, who, as it happened was also a director of Falls,
B. In its federal income tax return for calendar year 1964, Basic reported dividend income from Falls in the amount of $501,869.76 as a result of its receipt of the stock of Carbon. Also, it claimed a dividends-received deduction with respect to 85 percent of this amount pursuant to Section 243(a) (1) of the Internal Revenue Code of 1954
During 1970, the IRS concluded an examination of Basic’s federal income tax return for 1964 and determined that the reported gain from the sale of the shares of Falls and Carbon should be increased by $501,869.76 and that the reported dividend income should be reduced by the corresponding amount. As a result of this determination, and other adjustments to Basic’s return for 1964 which are not in controversy, additional income tax of $68,818.12, plus interest, was assessed against Basic. This additional amount has been paid. On November 3, 1970, after the execution of appropriate agreements extending the limitations period for assessment of Basic’s income taxes for 1964, Basic filed a claim for refund of $87,827.22 on the ground that its treatment of the Carbon stock as a dividend was correct. On August 11,1971, the refund claim was disallowed and on February 14, 1972, the present action was brought.
II. Discussion
In matters of taxation, the point is often made that it is the substance of a transaction that determines its tax conse
The “substanee-over-form” doctrine is commonly attributed to the decision in Gregory v. Helvering, 293 U.S. 465 (1935), a case in which the absence of a business purpose made literal compliance with the statutory provisions for a spin-off reorganization insufficient to accomplish what would otherwise have qualified as a tax free transfer. The taxpayer in Gregory had caused her wholly owned corporation to transfer certain property (shares of another corporation) to a newly formed corporation which the taxpayer also owned. Shortly after this transfer, the new corporation was liquidated and its property was distributed to the taxpayer. Immediately thereafter, the taxpayer sold the shares that had been distributed in the liquidation. The only tax that was reported in this transaction was the capital gain realized on the sale after distribution. The Government challenged this tax treatment claiming that, in actuality, the intermediate transfer of the shares between the two corporations was not, as the taxpayer contended, a tax-free reorganization, but simply a means used to accomplish the distribution of a dividend.
In its decision, the Court 'acknowledged that a valid corporate entity had been created and that the transaction fit within the literal requirements of the statute. Nevertheless, in upholding the Government’s position, it went on to say that:
When subdivision (B) [of Section 112 of the Revenue Act of 1928] speaks of a transfer of assets by one corporation to another, it means a transfer made “in pursuance of a plan of reorganization” * * * of corporate business; and not a transfer of assets by one corporation to another in pursuance of a plan having no relation to the business of either, as plainly is the case here. [Gregory v. Helvering, supra, 293 U.S. at 469.]
The Court saw the facts before it 'as “[s] imply an operation having no business or corporate purpose — 'a mere device
Although Gregory was concerned with a corporate reorganization question, the rationale of that case has not been confined in application to such situations alone. Bather, that decision, as Judge Learned Hand explained in Commissioner v. Transport Trading & Terminal Corp., 176 F. 2d 570, 572 (2d Cir. 1949), has come to stand for the proposition “that in construing words of a tax statute which describe commercial or industrial transactions we are to understand them to refer to transactions entered upon for commercial or industrial purposes and not to include transactions entered upon for no other motive but to escape taxation.” An even more incisive formulation of the same thought was later expressed-again by Judge Hand-in Gilbert v. Commissioner, 248 F. 2d 399, 411 (2d Cir. 1957) (dissenting opinion), in these words:
* * * The Income Tax Act imposes liabilities upon taxpayers based upon their financial transactions, and it is of course true that the payment of the tax is itself a financial transaction. If, however, the taxpayer enters into a transaction that does not appreciably affect his beneficial interest except to reduce his tax, the law will disregard it; for we cannot suppose that it was part of the purpose of the act to provide an escape from the liabilities that it sought to impose [emphasis added].
With the foregoing in mind,
From the Government’s point of view, the transaction fits the classic example of “a deal too good to be true.” It argues that for tax purposes there was really no dividend at all. Instead, the court is urged to ignore the form of the transaction and to view the stock distribution simply as an integral step in a transaction in which Falls and Carbon were sold to Carborundum. By that reasoning, it is asked that we consider the value of the transferred basis to be part of the gain realized by Basic on its sale of the two stocks.
Basic stresses the fact that the stock transfer was necessary in order to put Basic, the seller, in the position of being able to meet Carborundum’s requirement that it (Carborundum) purchase the shares of both subsidiaries directly from the parent company. Thus, the point Basic would make is that there was a valid business purpose for the move and, at the same time, the negation of any tax-inspired self-dealing.
This argument cannot be accepted. To begin with, it provides a less-than-complete explanation to say that the transaction took the form it did simply because that was the way Carborundum had wanted it. In actuality, if Carborundum’s demands had alone controlled the shape of the transaction then the purchase would 'have involved an acquisition of the assets of the two companies rather than their stock. The fact is, however, that Carborundum’s preferred approach was not undertaken simply because there were tax considerations attendant to the transfer in that form which had prompted Basic to demand off-setting increases in price. In turn, these price increases were unacceptable to Carborundum. Against this background then, the inference is readily drawn that Carborundum’s second offer, in which it changed the form of the transaction but not the price, was acceptable to Basic for precisely the same reasons that the first was not, namely,
Nevertheless, the fact that Basic may have been persuaded to go along with Carborundum’s offer because of its favorable tax implications would not diminish the value of its argument insofar as that argument is offered to explain the immediate transfer between Basic and Carborundum. That transaction clearly had a business purpose, namely, to effect the sale and purchase of a business; hence, tax minimization considerations would be irrelevant.
However, it is quite another matter to offer that same argument in explanation and justification for the stock transfer that took place between Basic and Falls. The business interests of Falls were distinct from those of its shareholder, Basic. Hence, it will not do to invoke an explanation that has validity only as to Basic, i.e., that the transfer was necessary because 'Carborundum had wanted it that way. Indeed, if such an explanation were sufficient then all manner of intermediate transfers could lay claim to “business purpose” simply by showing some factual connection, no matter how remote, to an otherwise legitimate transaction existing at the end of the line.
This then brings us to the second part of Basic’s argument — the claim, as Basic puts it, that the “distribution * * * had independent significance.” Under this heading, Basic points out that the distribution occurred before Basie’s board of directors had approved the sale to Carborundum and also before any agreement existed with Carborundum. Additionally, with respect to post-agreement contingencies, Basic stresses that consummation of the sale was subject to a number of conditions including audit verification of financial statements and the buyer’s option to avoid the contract in the event of a material change in the financial condition of the two subsidiaries or for such other significant risk considerations as major lawsuits or material fire damage. These points, says Basic, represented real possibilities, any one of which
These points are all unpersuasive. First, with respect to the argument regarding the timing of the stock distribution, that is, that the distribution had occurred before Basic had approved the sale and before there had existed an agreement with Carborundum, this argument presents a point more illusory than real. The stock transfer did not occur until after the receipt of Carborundum’s formal offer on November 23, 1964. Much more important than that even is the fact that Carborundum’s formal offer was irrevocable by its own terms until November 27, 1964-a circumstance which thus assured Basic and Falls that they could proceed with the stock transfer in the certain knowledge that all,elements .necessary to finalization of the transaction were in Basic’s control alone. This was precisely the way the several' steps were carried out: the formal offer was given on November 23, 1964, the transfer of stock was voted upon and carried put on November 24, 1964, and the offer was accepted by Basic on November 25, 1964. Furthermore, the same individuals who had been responsible for setting up- the sale between Basic and Carborundum were likewise the individuals responsible for effectuating the transfer of the Carbon stock from Falls to Basic. Given these circumstances, it is an empty point to say that the stock transfer had independent significance because it preceded in time Basic’s approval of the sale and the existence of a binding agreement with Carborundum. That was purely a happenstance; the whole transaction was a foregone conclusion that might just as well have been carried out in reverse order without changing the .attendant risks or final result to the slightest degree.
With respect to the post-acceptance factors that plaintiff also offers in proof of the stock transfer’s independent significance, these too contribute little to the point for which they are offered. In tata, they represent nothing more than the sort of risk factors that normally remain with a seller after contract execution but before final delivery.
These facts leave no room for a conclusion that a business interest was served by the claimed dividend. From all that
Nor would it change the result to impute to Falls a purpose separate from that which had been imposed upon it. For even if that had been the case, still no more could then be said save that Falls itself had consented to the sale of its property and to that end had transferred the subject of the sale (the shares of Carbon) to Basic to enable it to carry out the transaction. And so viewed, the transaction fits squarely within the rule laid down in Commissioner v. Court Holding Co., 324 U.S. 331 (1945), wherein it was held that the gain from a sale which had been embarked upon by the corporation could not be avoided by an abrupt liquidation which left the shareholders to then carry on with the transaction which' the corporation had started. As the Court there explained it, “[a] sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title. * * * To permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.” (324 U.S. at 334 (footnote citations omitted).)
Basic cites a number of decisions which it claims are support for a contrary conclusion. Among these is this court’s decision in Dynamics Corp. of America v. United States, 196 Ct. Cl. 282, 449 F. 2d 402 (1971). That case, like this one, involved a distribution in kind (corporate real estate) from subsidiary to parent followed by the parent’s later sale of the distributed property. The issue, as here, was whether the transfer was legitimately treated as a dividend.
The difference between Dynamics and the instant situation needs 'little elaboration. The transfer there was explainable on valid business grounds, a conclusion reinforced by the lack of any sale commitment at the time of transfer as well as by the time lapse involved between the subsidiary’s initial transfer of the property and the parent’s sale thereof 9 months later. In short, the initial transfer was sustainable as a dividend because distribution by the subsidiary and sale by the parent were seen as unconnected events.
Similarly distinguishable are our decisions in Sheppard v. United States, 176 Ct. Cl. 244, 361 F. 2d 972 (1966), and DeWitt v. United States, 204 Ct. Cl. 274 (1974), which plaintiff also cites. Both of these cases involved a donation-in-kind of appreciated property which was thereafter reacquired through purchase from the donee by a corporation controlled by the taxpayer. The transaction offered tax advantages at both ends: the initial transfer provided the taxpayer with a charitable deduction; the reacquisition provided the purchasing corporation with a stepped-up basis. In neither case would the donation have been made had there not existed a realistic opportunity for its recovery by purchase from the donee.
Because reacquisition of the property represented a dominant concern in the taxpayer’s choice of donees, the Government, in each case, sought to avoid the tax consequences connected with the gift. Thus, in Sheppard it argued against the initial transfer (the taxpayer’s gift to the charity) by claiming that, in terms of end result, the entire transaction actually amounted to a sale by the taxpayer to his controlled corporation ; in DeWitt it argued on more straightforward grounds contending simply that the taxpayer’s gift had only been a conditional one. Common to both arguments was the thought
The Government’s arguments did not prevail. In each case the decisive point was that the gifts were bona fide transactions, that is to say, the taxpayer was found to have had the requisite donative intent and had accomplished a complete divestiture of the property. The donee, in other words, had received the property with “no strings attached.” Therefore, under these circumstances, it mattered little that tax minimization was also part of the taxpayer’s objective or that the gift was only a step towards a different final end. Having departed with all incidents of ownership the transaction was complete unto itself and in seeking to reacquire the property the taxpayer’s controlled corporation had to deal with the donee as might any other third party. This meant that reacquisition of the property was an expectation and not a certainty. In this situation the gift stood the test of independent transaction for one could readily say that the donation affected the taxpayer’s beneficial interests for reasons apart from the possibility of the property’s later reacquisition.
Between this case and Sheppard and DeWitt, there exists this essential difference: here no reason has been given for the stock transfer save that it played a part in the whole, whereas in the 'gift cases, the transfer, at the time it was made, served a purpose unrelated to the transaction of which it became a part. The difference between the two is the difference between dependent and independent transfers.
The final case that requires mention is United States v. Cumberland Public Service Co., 338 U.S. 451 (1950). There assets which had been received as part of a liquidating dividend (a tax-free distribution) were sold by the receiving shareholders pursuant to a plan which they, as individuals, had collectively determined upon while the corporation was still in existence. It was the Government’s contention that the sale was actually a sale by the corporation and that it therefore owed a capital gains tax on the transaction. The argument was rejected. It had been found as a fact by the court
The point which plaintiff draws from the Cumberland case is the contention that taxes are to be assessed according to what actually happened and not according to a fictitious restructuring of events which maximize the revenue based upon a hypothetical situation. Since the bona fides of the corporate liquidation and shareholder sale were honored as independent transactions in that case, so, likewise, it is claimed, should the distribution followed-by-sale arrangement that took place here.
On the surface the argument has appeal but its problem is that it builds upon too loose a reading of the Cwnberland, decision. That case stands essentially for the rule of corporate recognition, that is, that a corporation, though closely held, yet remains a legal creature separate and apart from its shareholders. Once that fact is grasped then the result that it reached was predictable: having never itself determined to sell the corporate assets, and having undergone a genuine liquidation, the corporation could not then be charged with the gain later realized on a sale of assets it never made.
Here, of course, no question has been raised regarding the separate identities between Falls, the corporation, and Basic, its shareholder. But the similarities between this case and Cwnberland go no further than that. The point of departure is to be found in the fact that the property transfer in Cumberland was undertaken as an end unto itself. The same was true of the transfers in Sheppard and DeWitl. In all these cases the object of the transfer was to accomplish a change in legal status between the taxpayer and his property for reasons independent of the later disposition of that property at the hands of the recipient. That is clearly not the situation here. In Cwnberla/nd there was a purpose to liquidate;
* * * When a taxpayer supposes that the transaction, in addition to its effect on his tax, will promote his beneficial interests in the venture, he will of course secure the desired reduction, for it would be absurd to hold that he must deny himself an economic advantage unless, he pay the tax based upon the facts that have ceased to exist. [248 F. 2d at 411.]
Under the facts and circumstances presented here, plaintiff has not shown that there was a reason for the transfer of the Carbon stock from Falls to Basic aside from the tax consequences attributable to that move. Accordingly, for purposes of taxation, the transfer was not a dividend within the meaning of Section 316(a) (1). Instead, it should be regarded as a transfer that avoided part of the gain to be expected from the sale of the business to Carborundum, and should, therefore, be now taxed accordingly. Such a treatment is in keeping with the results reached in like situations. Steel Improvement & Forge Co. v. Commissioner, 314 F. 2d 96, 98 (6th Cir. 1963); Commissioner v. Transport Trading & Terminal Corp., supra.
The Government’s tax assessment having been correct in principle and in amount, it follows that plaintiff is not entitled to any recovery.
The dissenting opinion of Nichols, Judge, follows the opinion of the trial judge which has been adopted by the court.
The facts that are noted at this point repeat, for the most part, the separate Findings of Fact which accompany the opinion.
The meeting was attended by three of Falls’ directors. Of these three, two— a Mr. Eells and a Mr. Ludwig — held positions of comparable responsibility In Basle. Mr. Eells was chairman of the board of Basle and It was he who, together with his counterpart In Carborundum, had established the tentative purchase .price; Mr. Ludwig was the financial vice-president of Basle and It was he who had participated In the followup negotiations that led eventually to the second Carborundum offer.
Aside from this stock transfer, the only other dividend distribution made by Falls during the period of Basic’s ownership was a cash dividend of $275,000 that Falls had declared on November 5, 1964. The purpose of this November 5th dividend, which had been made payable on December 31, 1964, was to reimburse Basic for the cash dividends that it had paid and would continue to pay through December 1964 on the convertible preferred stock that It had Issued at the time of Its merger with Falls in May 1963.
The initial purchase price of $3,935,000 was adjusted downward by $25,000 in compromise of an accounting issue that developed following the offer-specified examination of the books and records of Falls and Carbon. This matter is immaterial to the issue presented in this case.
Other references in this opinion to code sections shall be understood to refer to the Internal Revenue Code of 1954, as amended, and in force during 1964, the tax year involved in this suit.
The Gilbert formulation quoted in the text above was later adopted by the Supreme Court in Knetsch v. United States, 364 U.S. 361, 366 (1960).
The Court Molding analysis would not alter either the posture or the correctness of the Government’s assessment against Basic since, under that analysis, any gain that could be imputed to Falls through its sale of the shares of Carbon would in any event be realized by Basic, and in the same amount, upon its sale of the shares of Falls. In short, the same gain reaches Basie’s treasury absent, however, the off-setting advantage of the tax-free transferred basis which the purported dividend would have allowed.
A recent revenue ruling, Rev. Rul. 75-493, 1975 int. rev. bull. No. 46, at 8, found a dividend in the situation where a corporation’s cash distribution to its noncorporate shareholder took place immediately prior to the shareholder’s sale of the corporation to a third party. That result is distinguishable from the present case in that the property there transferred (l.e., the cash), while it affected the purchase price, was not itself the intended subject of any later sale at the hands of the recipient. Aside from noting this distinction, we intend no judgment here as to the correctness of the cited ruling. For an apparent contrary ruling, however, see Steel Improvement & Forge Co. v. Commissioner, 314 F. 2d 96 (6th Cir. 1963).
In the conclusion to its brief, the Government asked that “costs” be assessed against the taxpayer. The costs sought were neither identified by category nor by amount and, absent any specificity with respect to what the requested assessment is meant to entail, it cannot be considered.
Dissenting Opinion
dissenting:
Respectfully I dissent because the evidence leads me to conclude that a good and sufficient non-tax purpose motivated the distribution of Carbon’s stock from Palls to Basic. I would find that the form of the transaction amply reflected its substance, and hold that the tax treatment should follow from that. I would treat the distribution of Carbon’s stock as a dividend paid by Falls to Basic, just as it purported to be.
First, 'as to the governing law. I will point out why I differ with the trial judge’s opinion as I go along, but I agree with the trial judge that a useful place to begin analyzing this problem is with Gregory v. Helvering, 293 U.S. 465 (1935), the watershed of the “substance-versus-form” doctrine of our tax law. The trial judge accurately summarizes the outcome in Gregory: a taxpayer was denied certain tax advantages because the Supreme Court found her claim to such treatment rested solely upon her literal, but not meaningful, compliance with the tax statute that conferred the benefit. Since its genesis in the context of corporate reorganizations, the doctrine of Gregory has enlisted such a following that an inquiry into whether the substance of a transaction corresponds to its form is now appropriate in every area of tax law. Accordingly, wherever there occurs a transaction so heavily laden with tax avoidance motives that it appears to be a sham, our courts are justified in disregarding the mere formalisms and recasting the transaction as its economic substance suggests. See, B. Bittker & J. Eustice, Federal income Taxation of Corporations and Shareholders, ¶14.51 at 14-99 (1971).
Of course, the Gregory doctrine is not without its limits; courts are not entitled to discard routinely the form given to taxpayers’ affairs 'as if form were merely a dispensable wrapper surrounding a distinct substance within. “The solution of hard tax cases requires something more than the easy generalization that the substance rather than the form of a transaction is determinative of its tax effects, since in numerous situations the form by which a transaction is effected does influence or control its tax consequences.” Waterman S. S. Corp. v. Commissioner, 430 F. 2d 1185, 1192 (5th Cir. 1970); United States v. General Geophysical Co., 296 F. 2d
* * * If * * * the taxpayer enters into a transaction that does not appreciably affect his beneficial interest except to reduce his tax, the law will disregard it; * * "When a taxpayer supposes that the transaction, in addition to its effect on his tax, will promote his beneficial interests in the venture, he will of course secure the desired [tax] reduction, for it would be absurd to hold that he must deny himself an economic advantage unless he pay the tax based upon the facts that have ceased to exist. * * *
Id. at 411.
The touchstone, therefore, that distinguishes a transaction worthy of being recognized as it appears from one deserving to be disregarded is the presence of a “good business purpose” rather than the absence of any desire on the taxpayer’s part to save taxes. The taxpayer’s purpose to escape taxes is legally neutral. Chisholm v. Commissioner, 79 F. 2d 14 (2d Cir. 1935). “[T]here is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. * * * [N]obody owes any public duty to pay more than the lajw demands: taxes are enforced exactions, not voluntary contributions.” Commissioner v. Newman, 159 F. 2d 848, 850-51 (2d Cir. 1947) (L. Hand, J., dissenting on other grounds). I would hold that Basic is entitled to favorable tax treatment if its method of selling its subsidiaries furthered its business interests, even if Basic chose one means of accomplishing this over the alternatives because this one exposed it to the least tax.
Second, as to the facts. As I see our task, we now must examine the facts of record to determine whether the tax
Usually, it is the taxpayer’s own business purpose that attracts the court’s attention. Where the taxpayer establishes that it acted to further its own business, the question is resolved in the taxpayer’s favor, and the transaction taxed as it appears. In an arm’s length transaction the business purpose may also be that of the party other than the taxpayer, who insisted on it for his own business reasons. Here, the taxpayer relies for its business purpose on Carborundum’s desires to structure the purchase of taxpayer’s subsidiaries in a particular way, and the trial judge correctly desired to know whether Carborundum’s position was itself supportable by legitimate business considerations. The trial judge’s concern is well-taken, for this might have been an instance of collusion if, for example, the taxpayer sought to protect itself by putting the words of its defense in the mouth of another corporate taxpayer, which it controlled. If that kind of self-dealing were found here, I would agree with the majority’s result. Similarly, I would agree if self-dealing took another form, as in Waterman S. S. Corp. v. Commissioner, supra, where just before it was sold to another corporation, the taxpayer’s subsidiary transferred cash to the taxpayer, as an obvious advance of the purchase price. There was no such evidence here, however, and none of the trial judge’s findings suggest collusion. To the contrary, Finding 31 states that “Carborundum and Basic were unrelated parties that dealt
In summary, Carborundum originally proposed to buy assets only leaving the corporate stock untouched. Basic rejected this except at a price Carborundum did not wish to pay, $265,000 above the price the executives had already agreed on in principle. This was because of unfavorable tax consequences that Basic anticipated from a sale of assets that included depreciated facilities, on which any gain over basis would be taxable as ordinary income, and also, no doubt, inventory. No one suggests that Basic should now have to pay the taxes such a sale would have generated. This left stock sales as the remaining options the parties could have. They might be as follows:
(A) Carborundum might buy the Falls stock from Basic, leaving the Carbon stock undisturbed in Falls’ treasury. Carborundum objected to this because it could not 'have allocated part of the purchase price, over the book values, to make a new basis for Carbon’s assets. Carbon in tact owned a substantial part of the assets Carborundum wished to acquire.
(B) Carborundum might buy the Carbon stock from Falls and then buy the Falls stock from Basic. Carborundum objected to this for both tax and non-tax reasons. The tax objection was that Falls would have realized a taxable gain which Carborundum, as its new owner, would have had to pay, even if indirectly. The non-tax reason was that Carborundum would have had no contractual recourse except against itself had the Carbon assets been found to be not as represented.
(C) Carborundum might buy the stock of each subsidiary from Basic. To make this possible, the Carbon stock had to be got from Falls’ treasury into Basic’s. No matter how accomplished, this would have appeared to be a dividend for tax law purposes, and under other*420 circumstances, the IRS would probably have insisted it was a dividend even if called something else.
It would seem that, from Carborundum’s point of view, option C had to be adopted because there existed fatal objections to A and B. It is not apparent what other options there could have 'been. It remains to inquire whether these considerations were actually in Carborundum’s mind at the time or were afterthoughts. It is now time to look at Mr. Le-bold’s testimony in the record:
Plaintiff’s counsel. What was the reason for your suggesting that Carborundum purchase the stock of Carbon from Basic?
MR. Lebold. Well, the reason was that * * * there was a substantial premium we were paying over the book value or the tax basis of the assets [in] the respective companies. If we bought the shares for cash we could liquidate [both subsidiaries] under section 334(b) (2) [of the Internal Revenue Code] and write up the assets to their respective fair market values. [Transcript at 77-78.]
Plaintiff’s counsel. Was it then your opinion that the price to be paid could not be satisfactorily allocated to the 'assets of the two companies if Carborundum simply purchased the stock of Falls from Basic?
Mr. Lebold. Yes, definitely. You have to purchase at least 80% of the shares of a company in order to meet the requirements of * * * section 334(b) (2).
Plaintiff’s counsel. Were you desirous of purchasing the stock of Carbon so that you could attribute the price paid for that stock to the assets of Carbon ?
Mr. Lebold. Yes, we were because the assets of Carbon contained some intangibles that were more valuable than assets held by Falls, so we wanted to purchase each company’s shares. [Transcript at 78-79.]
On subsequent cross-examination, Mr. Lebold participated in this exchange:
Government’s counsel. Why did you not consider * * _* buying the Carbon shares from Falls and then buying the Falls shares from Basic ?
Mr. Lebold. Well, that didn’t seem to be the clean way to handle the transaction if we even gave it serious thought * * * it seems to me it would be quite awkward and not even feasible[. IJf we had bought the shares [of Carbon] from Falls, then Falls would have a gain. Then*421 if we wanted to buy tbe Shares of Falls from Basic, Inc., we would 'have to pay a bigger price because the profit on the sale of Carbon would be in Falls. [Transcript at 87.]
Mr. Lebold later elaborated on this “awkwardness” in response to the trial judge’s request for clarification of Carborundum’s position. Mr. Lebold replied:
* * * it seemed to me that if we had bought the shares [of Carbon from Falls] there probably would have been a gain that Falls would have had on the sale. Then we would have this profit in Falls. Let’s see, if we bought the Falls shares from Basic, Inc., we would have to pay for the profit twice, wouldn’t we? [Transcript at 106.]
I believe that Mr. Lebold was correct that Carborundum would have paid twice if the transaction were attempted in this manner. If 'Carborundum had paid Falls the cash price for Carbon’s stock, Falls and not Basic would have realized the profit. If Basic could not have reached that profit, it would reasonably expect that Carborundum, in the next step of the transaction, would pay for Falls stock an amount that represents the expected profit on both Falls’ and Carbon’s stocks. As Mr. Lebold anticipated, Carborundum would thus have paid twice for Carbon, first to Falls and then to Basic. And after Falls became a part of Carborundum’s corporate organization, it must still pay a tax on the gain realized upon selling Carbon’s stock. In the end, Carborundum would have transferred funds from one of its corporate pockets to another, serving no purpose but incurring a tax nevertheless. Awkward indeed! There might have been additional alternatives, but each would have injected an awkwardness of its own. 'Carborundum could have, for example, paid a lower price for Carbon stock and a higher price for Falls, but thereby it would sacrifice its ability to allocate its costs among Carbon’s valuable assets, which was Carborundum’s primary purpose from the outset. Similarly, if Carborundum purchased solely Falls’ stock from Basic, it would not have been entitled to invoke section 334(b) (2) upon liquidating Carbon, because Carborundum would not have purchased 80% of the stock of Carbon as that section requires.
GovbRnment’s counsel. Could you describe for me what you mean by the term “awkward” in your response just before?
Mr. Lebold. Well, “awkward” from the standpoint that I just covered [the problem of having to duplicate the profit to Basic], and from the fact that we would be dealing with a company that we are going to turn right around and buy[.] I would sooner deal with a third party and buy companies from them where I could have some recourse if something in the agreement was defective from our standpoint later. [Transcript at 106.]
* * * [This] other consideration is the one in the contract itself. We would rather have an existing company that is on the New York Stock Exchange [as] the seller in case we do have some problems turn up later under the agreement. [Transcript at 107.]
Plaintiee’s counsel. [I]s it correct * * * that if you had purchased the stock in * * * Carbon from Falls that would have involved a contractual obligation between you and Falls ?
Mr. Lebold. Yes.
PlaiNtiuf’s counsel. Then if you had immediately thereafter purchased the stock of Falls from Basic your first contract relating to the purchase of the Carbon stock would have been between you and your own preaching?
Mr. Lebold. Yes.
t Plaintuht’s counsel. Which is not a very satisfactory situation if you need any recourse under the contract ?
Me. Lebold. That’s right.
Plaintiep’s counsel. So that the awkwardness did not, in fact, only relate to the tax considerations?
Mr. Lebold. That’s right. [Transcript at 108.]
Little more need be said, in my view, to establish a sufficient business purpose — or, perhaps, several business purposes. I might even entertain the suggestion that the structure chosen by the parties may have been the only way to satisfy both
The trial judge makes much of the fact that the taxpayer and Carborundum actively considered how the tax results would differ depending on how they chose to structure the transaction. It can be said bluntly, I think, without undermining their respective positions, that both Basic and Carborundum sought to consummate the deal at the smallest tax -cost. This is no inore than a taxpayer’s legitimate desire to escape taxes, which is legally neutral so long as the form of the transaction is otherwise supported by the taxpayer’s business interests. Since I cannot conclude, upon reviewing the record, that the stock distribution was “a mere device * * * a disguise for concealing its real character” inveighed against in Gregory v. Helvering, supra, I would sustain the taxpayer’s refund claim.
BINDINGS OK PACT
1. Plaintiff, Basic Incorporated (hereinafter Basic), is an Ohio corporation having its principal office in Cleveland, Ohio.
2. During the time period relevant here, 1963-1964, Basic’s principal business involved the production and sale of basic refractory materials for use largely in steel-making furnaces.
3. On May 10, 1963, Falls Industries Incorporated (hereinafter Falls), became a wholly owned subsidiary of Basic through merger. In this transaction Basic issued to the shareholders of Falls 63,228 shares of its own 5 percent cumulative convertible preference shares in exchange for the outstanding Falls shares. Basic’s adjusted basis for its stock in Falls at this time was $1,134,076.35.
4. At the time of its acquisition, Falls was engaged in the manufacture and sale of processing equipment made wholly or in part from impervious graphite and certain specialized carbon and graphite formulations. This business was con
5. On January 1,1964, Falls transferred its Sanborn plant and related assets, which together had an adjusted basis of $501,869.75, to a then newly organized New York corporation called Basic 'Carbon Corporation (hereinafter Carbon). Falls, in return for this transfer of assets, received all the stock of Carbon. As of January 1, 1964, Basic owned all of the outstanding stock of Falls, and, in turn, Falls owned all of the outstanding stock of Carbon. Thus, Basic was the parent company, Falls the first-tier subsidiary, and Carbon the second-tier subsidiary.
6. In August 1964, discussions were initiated between Basic and The Carborundum. Company of Niagara Falls, New York (hereinafter Carborundum), concerning possible business transactions between the two companies. Initially, these discussions concerned a possible merger of Basic into Carborundum. At some time prior to the meeting of the executive committee of Basic on October 8, 1964, the discussions between Basic and Carborundum also came to include the possible purchase by Carborundum of the carbon and graphite business conducted by the Falls and Carbon subsidiaries.
7. Later, at the October 8th executive committee meeting, the consensus reached was that management should continue its discussions with Carborundum concerning the merger or purchase possibilities that had been explored between the two companies up to that time. By mid-October 1964, however, Basic had decided against a merger with Carborundum.
8. During October 1964, Basic had also been considering its own expansion of the carbon and graphite business conducted by Falls and Carbon and, to that end, alternative methods of financing such expansion were then also under examination. At a meeting of the board of directors of Basic on October 21,1964, it was concluded that one or more business partners should be sought to assist Basic in financing this contemplated expansion. With this in mind discussions were had with Carborundum and at least two other companies. At the same time, Basic was also consulting with financial advisors as to other likely methods of financing the
9. Prior to November 6, 1964, no tentative agreement or other understanding had been reached between Basic and Carborundum as to the purchase and sale of the carbon and graphite business conducted by Falls and Carbon. On November 6, 1964, Mr. Eells, the chairman and president of Basic, and vice-president of finance for Basic, met in Niagara Falls, New York with Mr. Wendel, the chief executive of Carborundum and with other officers of Carborundum to discuss the possible sale to Carborundum of the carbon and graphite business of Falls and Carbon. At this meeting, Messrs. Eells and Wendel tentatively agreed on a price of $3,985,000 for the sale of the business plus the repayment by Carbon of $1,000,000 which it had been advanced by Basic.
10. During the course of the November 6, 1964, meeting, no understanding or agreement was reached concerning the details of the purchase transaction or the form in which it should be carried out.
11. Subsequent to reaching the tentative agreement on price for the sale of the Falls and Carbon business to Carborundum, Mr. Ludwig and officials of Carborundum began negotiations to work out the details of the transaction including, of course, such matters as the form the transaction was to take. 'Since Carborundum was primarily interested in obtaining the assets of the two companies involved, it first proposed that the transaction take the form of a purchase of the assets of Falls and Carbon.
12. Basic’s reaction to this first Carborundum proposal was that if the transaction were to take the form of a sale of assets, then the tentative purchase price earlier reached between Messrs. Eells and Wendel would have to be increased by $265,000 to allow for various tax and management considerations. Additionally, Carborundum would then also have to agree to indemnify Basic for any further assessment
13. Since Carborundum was chiefly interested in acquiring the assets of Falls and Carbon, it next proposed that it purchase from Basic all of the Falls and Carbon stock. Carborundum’s purpose in mailing this second proposal was to enable it to buy the stock of both companies for cash and thereafter to liquidate them so as to acquire their assets and then allocate the aggregate purchase price paid for the stock of the two companies to their respective assets in accordance with Section 834(b) (2) of the Internal Bevenue Code of 1954.
14. This second proposal was made by Carborundum because it was seen by that company to be in its own best interests; the proposal was not made for the purpose of specifically granting Basic any tax advantages that might not otherwise result were the transaction to be cast in a different form. However, Basic, in acting in its own behalf, did consider the tax consequences of the proposed transaction as well as alternative approaches that might be taken. Because it found the offer as made to be satisfactory, it accepted Carborundum’s second proposal.
15. In a report to the board of directors of Carborundum, dated November 17, 1964, it was explained that, while Carborundum would have preferred to purchase assets only, it remained advantageous for Carborundum to purchase the stock of Falls and all the stock of Carbon directly from Basic and that Basic would, therefore, be requested to transfer the ownership of Carbon stock from Falls to Basic prior to the transaction.
16. At a meeting of the Carborundum board of directors on November 19, 1964, approval was given to recommendations for the purchase of all the stock of Falls and all the stock of Carbon from Basic for $3,935,000 in cash and to an agreement to pay the debt of Carbon to Basic in the amount of $1,000,000. Also approved was the purchase of certain land in Hickman, Kentucky, then being acquired by Basic.
18. On November 24, 1969, one day after Carborundum had made its formal offer to Basic, a special meeting of the board of directors of Falls was held. Those attending (and who together made up a quorum of the board) were Mr. Eells, Mr. Ludwig, and a Mr. Lee. At the meeting, which was chaired by Mr. Eells (he was also the chairman and president of Basic), it was reported that the company’s sole shareholder, namely, Basic, had been discussing with The Carborundum Company the sale by Basic to Carborundum of the shares of Falls’ wholly owned subsidiary, Carbon. It was also reported that Carborundum was insisting that it purchase those shares from Basic rather than from Falls directly.
19. At the November 24,1964, meeting (identified in Finding 18), Mr. Eells recommended that Falls distribute the stock of Carbon to Basic as a dividend so as to enable Basic to deal separately with the stock of Carbon and the stock of Falls. Accordingly, after discussion, the following resolution was passed:
RESOLVED, that a dividend be declared and paid to the holder of all the outstanding shares of common stock of the Company by the distribution to such holder on November 24, 1964 of all the shares of outstanding stock of Basic Carbon Corporation.
20. Thereafter, on November 24, 1964, pursuant to the above resolution, all of the stock of Carbon was transferred by Falls to Basic. At the time of this transfer, no shares of stock of Falls were surrendered by the transferee, Basic, in exchange for receiving the stock of Carbon. The transaction
21. At a meeting of the board of directors of Basic on November 25, 1964, acceptance of the Carborundum offer to buy all the stock of Falls and all the stock of Carbon on the terms and conditions contained in the Carborundum letter of November 28, 1964, was authorized. Acceptance of the offer was endorsed on the Carborundum letter by Mr. Eells, the president of Basic, on November 25,1964.
22. The agreement between Carborundum and Basic embodied in the 'Carborundum letter of November 23,1964, contained a number of conditions to which Carborundum’s obligation to consummate the transaction was subject. Among these was assurance from Price Waterhouse & Co. as to the correctness of the financial statements of Falls and Carbon as of October 31,1964. In its examination, Price Waterhouse & Co. prepared consolidated financial statements of Falls and Carbon as of October 31, 1964, making 'adjustments to the common stock equity and net income of Falls and Carbon as reflected in the separate financial statements attached to the agreement embodied in the Carborundum letter of November 23, 1964. The adjustments reduced the common stock equity of Falls and Carbon, as reflected in such, separate financial statements, by $48,364. Although Basic felt that the amounts in the separate financial statements were correct, this difference was nevertheless compromised by agreement between Basic and Carborundum resulting in a reduction of the purchase price by $25,000 from $3,935,000 to $3,910,000.
23. On December 29,1964, the sale and transfer of all the stock of Falls and Carbon by Basic to Carborundum was consummated, the adjusted price of $3,910,000 was paid, the debt of Carbon to Basic in the amount of $1,000,000 was paid and other payments and transfers completed, all in accordance with the agreement.
24. Except for its initial proposal to purchase the assets of Falls and Carbon, Carborundum made no proposal offer to Basic to carry out the transaction in any form other than a direct purchase from Basic of the stock of Falls and the stock of Carbon. This form of the transaction was proposed
25. While the purchase price that was paid in the finalized transaction remained substantially the same as that which had been tentatively agreed upon by the chief executives of Basic and Carborundum, that amount was affected by the form in which the transaction was carried out. Had the transaction involved, say, a sale of assets rather than a sale of stock, then Basic’s price would have been increased by $265,000.
26. With respect to the transaction as finally executed, Basic and Carborundum never discussed alternative purchase prices depending upon Whether or not the transfer of Carbon stock to Basic was carried out. However, plaintiff does admit that methods of transferring the Carbon stock to Basic, other than the distribution of that stock as an intended dividend, would have changed the final purchase price or would otherwise have affected the economics of the transaction.
27. On June 30, 1965, Falls and Carbon were completely liquidated into Carborundum by transfers of all their respective properties and assets, subject to liabilities, in exchange for, and upon surrender of, all the stock of the two companies.
28. The adjusted basis of all the stock of Carbon in the hands of Palls immediately before the transfer of such stock to Basic on November 24,1964, was $501,869.76. On November 5, 1964, at a meeting of its board of directors, Falls declared a cash dividend to Basic of $275,000, payable December 31, 1964, in order to reimburse Basic for cash dividends that it had paid, and would pay through December 1964, on the 68,228 shares of convertible preferred stock issued by Basic in the May 10,1963, merger. This cash dividend was paid to Basic prior to the transfer of the stock of Falls to Carborundum. During the period of Basic’s ownership of Falls, Falls made no distributions to Basic other than
29. Although the earnings and profits of Falls for the year 1964, plus its earnings and profits accumulated after February 28,1913, exceeded the sum of $176,869.76, and were thus sufficient to cover the dividend distributions to Basic, Falls did have to borrow some money in order to carry out its cash dividend of $275,000.
30. Basic’s adjusted basis for its stock in Falls at the time of its acquisition was $1,134,076.35. Basic’s adjusted basis for this stock at the time of its sale to Carborundum was $1,136,-726.35, the increase being attributable to selling expenses.
31. Throughout the course of the negotiations which culminated in the November 23, 1964, offer of Carborundum to purchase all the stock of Falls and Carbon from Basic and the consummation of the transaction which that offer contemplated, Carborundum and Basic were Unrelated parties that dealt with one another on an arm’s length basis. At all times material hereto, Basic and Carborundum were publicly held corporations whose shares were traded on the New York Stock Exchange.
32. Basic used the accrual method of accounting in keeping its books and records and in reporting income in its calendar year corporation income tax return.
33. In its federal income tax return for 1964, which Basic filed with the District Director of Internal Revenue, Cleveland, Ohio, the company reported dividend income from Falls in the amount of $501,869.76 as a result of the receipt of the stock of Carbon. Also, it claimed a dividends-received deduction with respect to such dividend income and it reported a long-term capital gain of $2,310,217.52 from the sale to Carborundum of the shares of stock of Falls and Carbon. Income tax in the amount of $1,207,406.36, shown due in such return, was timely paid by Basic.
34. During 1970 representatives of the Commissioner of Internal Revenue (the Commissioner) concluded an examination of Basic’s federal income tax return for 1964 and determined that the reported gain from the sale of the stock of Falls and Carbon should be increased by $501,869.76 and that the dividend income reported by Basic should be re
35. The period of limitation for assessment of Basic’s income tax for 1964 was extended to December 31, 1970, by timely agreements duly executed. On November 3, 1970, Basic filed a claim for refund of 1964 income tax in the amount of $87,827.22 on the ground that it had correctly reported in its 1964 return a dividend of $501,869.76 from Falls as a result of the receipt of all stock of Carbon and that the reduction of its dividend income by that amount and the increase by an equivalent amount in the gain from the sale of the stock of Falls and Carbon were erroneous.
36. By letter, dated August 11,1971, Basic was notified by the Commissioner that its refund claim was disallowed in full. Basic has received no credit or refund of any income tax or interest thereon paid for the year 1964.
ULTIMATE VENDING
37. The transfer of the ownership of the shares of Carbon from Falls to Basic was a transfer that was dictated by the sole shareholder, the parent, Basic, in furtherance of a sale of the business which the parent had decided upon for its own purposes.
Alternatively, if the transfer is taken as a self-initiated move on the part of the distributing corporation rather than as a shareholder-dictated distribution, the tax consequences would remain the same. For a corporate transfer that is undertaken in furtherance of an agreed-to sale of the distributed property at the hands of the distributee is, in reality, a sale by the corporation itself. Under this alternative view, the gain realized by Falls on the sale of its own property (namely, the shares of Carbon) would reach Basic’s treasury upon the latter’s sale of Falls. There would, however, be no dividend.
Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed.
