1926 BTA LEXIS 2076 | B.T.A. | 1926
Lead Opinion
The first issue relates to the value for invested capital purposes of Lot No. 417, City of Youngstown, State of Ohio, which the petitioner acquired for stock. The answer avers that the property for invested capital purposes should be taken at its cost to the transferror as provided in section 331 of the Revenue Act of 1918. This position is not well founded for the reason that the petitioner acquired the property prior to March 3, 1917. If the actual cash value of tangible property at the time paid in for stock is shown to have been clearly and substantially in excess of the par value of the stock issued therefor, such excess shall be treated as paid-in surplus for the purposes of invested capital. See section 326 of the Revenue Act of 1918. Applying the law to this issue — if the actual cash value of Lot No. 417 was clearly in excess of the par value of the stock issued therefor, the excess shall be treated as paid-in surplus. We are satisfied that the actual cash value of the lot was in excess of the par value of the stock issued therefor. A careful examination of the record convinces us that, apart from improvements, the lot had an actual cash value at the time paid in.of $165,000, and such value should be used for invested capital purposes.
The second issue relates to the alleged profit which the Commissioner has assigned to the forced sale of the lot in 1920. The value
Sec. 234. (a) That in computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions:
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(14) If property is compulsorily or involuntarily converted into cash or its equivalent as a result of (A) its destruction in whole or in part, (B) theft or seizure, or (C) an exercise of the power of requisition or condemnation, or the threat or imminence thereof; and if the taxpayer proceeds forthwith in good faith, under regulations prescribed by the Commissioner with the approval of the Secretary, to expend the proceeds of such conversion in the acquisition of other property of a character similar or related in service or use to the property so converted, or in the acquisition of 80 per centum or more of the stock or shares of a corporation owning such other property, or in the establishment of a replacement fund, then there shall he allowed as a deduction such portion of the gain derived as the portion of the proceeds so expended bears to the entire proceeds. The provisions of this paragraph prescribing the conditions under which a deduction may be taken in respect of the proceeds or gains derived from the compulsory or involuntary conversion of property into cash or its equivalent, shall apply so far as may be practicable to the exemption or exclusion of such proceeds or gains from gross income under prior income, war-profits and excess-profits tax Acts.
The findings of fact show that in order to obtain the valuable distributing agency for the sale of Overland and Willys-Knight automobiles, it was necessary to acquire a suitable building lot, and that Lot No. 417 was admirably located as a site for a building to be used for the increased business of the petitioner. As soon as Lot No. 417 was transferred to the corporation, contracts were let for the erection of the building, excavation work was begun, and foundations were laid. The advent of the World War caused a cessation of building operations and, as soon as peace-time construction was permitted, petitioner found itself in the position where its property was about to be condemned. The findings of fact outline the facts in relation to the condemnation. Within approximately 60 days after petitioner had received payment for its property from the railroad company, it entered into a contract for the purchase of all of the outstanding capital stock of the Youngstown Carriage Co., which company owned land and other real estate well adapted for the business of the petitioner. The petitioner contends that in so far as it used the proceeds from the condemnation
The real question to determine is whether the petitioner with the proceeds of the condemnation sale proceeded forthwith in good faith to expend the same in acquiring other property similar in character or related in service or use to the property condemned. We think the petitioner proceeded forthwith, since the purchase of the property was consummated within sixty days after the receipt of the money from the condemnation sale and the good faith of the petitioner- has not been challenged. The statute does not prescribe that the property acquired shall be absolutely identical in all respects with the property condemned. Here the petitioner had a lot with certain excavations and foundations for a building and he acquired a lot with certain buildings thereon. The two lots were similar in character and certainly were related in service or use, and we are of the opinion that in so far as the two lots are concerned, the petitioner is entitled to the benefits of the relief provisions of section 234(a) (14).
The third issue relates to the promissory demand notes which the petitioner received from its stockholders in payment for capital stock. The petitioner, seeks to take the notes in the amount of $100,100 into its vested capital. The notes bore no interest and were non-negotiable. No payments have ever been demanded on the notes nor have any payments been made. The record is silent as to the solvency or financial responsibility of the makers of the notes. The determination of the Commissioner as concerns this issue is approved.
Order of redetermination will be entered on 15 days’ notice, under Rule 50.