Lead Opinion
Respondent determined the following deficiency and additions to tax:
Additions to tax
Year Deficiency Sec. 6653(a)(1) Sec. 6661
1988 $477,816 $23,891 $119,454
In so doing, respondent determined that Martin Ice Cream Co. (MIC or petitioner) recognized taxable gain of $1,430,340 on the distribution of stock of its newly created subsidiary, Strassberg Ice Cream Distributors, Inc. (sic), to one of petitioner’s two shareholders, Arnold Strassberg (Arnold), in redemption of his 51-percent stock interest in petitioner. Shortly before trial, we granted respondent’s motion for leave to amend answer to allege that a subsequent sale of assets to the Háagen-Dazs Co., Inc. (Háagen-Dazs), by Arnold and SIC should be attributed to petitioner under Commissioner v. Court Holding Co.,
We reject respondent’s attempt to apply Court Holding, although we uphold respondent’s original determination that petitioner recognized gain on the redemption of Arnold’s stock in petitioner. We find that petitioner’s gain is substantially less than the gain determined by respondent. We reject respondent’s imposition of an addition to tax under section 6653(a)(1) but uphold the addition to tax for substantial understatement under section 6661.
FINDINGS OF FACT
Some of the facts are stipulated and are so found. MIC is a New Jersey corporation whose principal place of business was Bloomfield, New Jersey, when it filed its petition.
MIC was incorporated in 1971 as a wholesale ice cream distributor, with Martin Strassberg (Martin) as its sole shareholder. MIC was a C corporation from 1971 through 1986. On December 30, 1986, MIC filed with the Internal Revenue Service a Form 2553, Election by a Small Business Corporation, which took effect on November 1, 1987. As a
Soon after World War II, Arnold, Martin’s father, a high school mathematics teacher, began a part-time business after school hours, selling ice cream products wholesale to stores in Newark, New Jersey. During summer vacations, Arnold expanded his coverage to small stores and ice cream parlors on the Jersey Shore. By 1960, Arnold had incorporated his own company, Arnold’s Ice Cream, and was engaging full time in the wholesale distribution of ice cream. In the 1960’s, Arnold began to develop relationships with the owners and managers of several supermarket chains when he conceived an innovative packaging and sales campaign that used bright colors and catchy slogans to market ice cream products to supermarkets for resale to consumers. Ice cream had hitherto been sold by supermarkets to consumers as an undifferentiated product in large containers and multiserving packages with plain brown wrappers. Arnold subsequently developed other packaging ideas for ice cream products that helped supermarkets sell ice cream products under their private labels. Even with different kinds of packaging, supermarkets marketed ice cream to consumers mainly on the basis of price. In the late 1960’s, Arnold had a falling-out with his major supplier, Eastern Ice Cream, which forced Arnold’s Ice Cream into bankruptcy.
In 1971, Martin and Arnold organized MIC as a part-time business, with one delivery truck, distributing ice cream to small grocery stores and food service accounts (restaurants, hotels, and clubs) in northern New Jersey. Martin joined the business after having completed virtually all requirements for a Ph.D. in statistics and after spending several years doing operations research and statistical analysis as an employee of large corporations. In 1975, Martin began working in the ice cream distribution business full time. During most of the 1970’s, Arnold owned no stock in MIC because he wished to avoid the claims of creditors of Arnold’s Ice Cream. In 1979, Arnold became a 51-percent shareholder in MIC, and Martin’s interest was reduced to 49 percent. At no time did Arnold or Martin have an employment agreement with MIC.
In 1974, Ruben Mattus (Mr. Mattus), the founder of Háagen-Dazs, asked Arnold to use his ice cream marketing
Arnold, as the first distributor of Háagen-Dazs ice cream to supermarkets, sparked a revolution in the retail sale of ice cream. Arnold and Háagen-Dazs tapped a hitherto hidden demand for a super-premium ice cream in supermarkets by consumers who were willing to pay higher prices for higher quality. By the late 1970’s, MIC was distributing ice cream, products, including Háagen-Dazs ice cream, to four major supermarket chains, Pathmark, Shop Rite, Foodtown, and Acme in New York, New Jersey, Connecticut, and Pennsylvania (the supermarkets) and to smaller grocery stores. However, neither Arnold nor MIC ever entered into a written distribution agreement with Háagen-Dazs or Mr. Mattus.
Arnold was so successful that in the late 1970’s or early 1980’s Mr. Mattus invited Arnold to become his partner in a planned expansion of Háagen-Dazs’ supermarket sales to the West Coast. Arnold declined the offer and continued to use MIC as his corporate vehicle to distribute Háagen-Dazs products in New Jersey and adjacent areas.
Martin did not support or participate in Arnold’s efforts to expand ice cream distribution to the supermarkets. Martin disliked the social activities necessary to developing and sustaining personal relationships with supermarket owners and managers — activities that Arnold thrived on. Martin preferred to manage day-to-day operations at the MIC warehouse, arriving at work as early as 3 to 4 a.m. to supervise the loading of Mic’s delivery trucks for delivery to the supermarkets
In 1985, the Borden Co. (Borden) retained Arnold to use his contacts with the supermarkets to put Borden’s ice cream products into supermarket freezers. Arnold worked as a broker for Borden, personally earning commissions on Borden’s sales of ice cream products to supermarkets, rather than as a distributor buying from the manufacturer and reselling to retailers. MIC did not participate in Arnold’s work for Borden. Arnold had the ability to — and did — put Borden’s ice cream products into supermarket freezers at a time when many of his original contacts from the 1960’s and earlier had passed from the scene. By 1988, Arnold no longer had a business relationship with Borden.
At some time in the early to mid-1980’s, Ben and Jerry’s, a competitor of Háagen-Dazs in the manufacture and marketing of super-premium ice cream, asked Arnold to help obtain supermarket freezer space for its products. Háagen-Dazs had not objected to Arnold’s work for Borden but told him that he could not continue to distribute Háagen-Dazs ice cream products if he were to distribute Ben and Jerry’s ice cream products. Arnold thereupon terminated further contact with Ben and Jerry’s.
In 1983, the Pillsbury Co. (Pillsbury) purchased Háagen-Dazs from Mr. Mattus. Pillsbury promptly initiated a business plan to consolidate the distribution of Háagen-Dazs ice cream products into its own distribution centers, with the goal of delivering directly to retail stores, especially large supermarket chains. Pillsbury believed it could deliver a uniformly higher quality product to supermarkets at lower cost than independent distributors whose refrigeration equipment was not as reliable. Pillsbury believed that ensuring high quality was vital to its basic corporate strategy of continuing
Another important component of the Háagen-Dazs corporate strategy was to enter into written distribution contracts, explicitly terminable at will by Háagen-Dazs on short notice, with distributors that it was not ready to buy out. Since 1974, MIC, like other regional distributors, had distributed Háagen-Dazs products on the basis of Arnold’s original oral agreement with Mr. Mattus. After its acquisition by Pillsbury, Háagen-Dazs always maintained that distributors such as MIC did not have enforceable rights to continue to distribute Háagen-Dazs ice cream. In June 1988, the U.S. District Court, Northern District of California, mdl docket No. 682, ordered summary judgment in favor of Háagen-Dazs against a terminated distributor who had distributed ice cream products for a direct competitor.
In late 1985 or early 1986, representatives of Háagen-Dazs first approached the Strassbergs about acquiring direct access to Arnold’s relationships with the supermarkets and removing him as a middleman in the chain of distribution. Háagen-Dazs also wanted to forestall competitors, such as Ben and Jerry’s, from using Arnold’s contacts and knowledge to gain access to the supermarkets. Háagen-Dazs also did not want to leave distributors like Arnold, who had been with Háagen-Dazs since the early days of Mr. Mattus, without adequate reward for the role they had played in bringing Háagen-Dazs to prominence. Also, because Arnold was a high-profile, well-respected ice cream distributor, Háagen-Dazs did not wish to alienate Arnold and risk having him stir up the other independent distributors before Háagen-Dazs was ready to take similar steps against them. Háagen-Dazs believed that these various relationships, personal to
During the early to mid-1980’s, Arnold and Martin had increasingly vocal disagreements over the future direction of MIC. Arnold wished to expand the supermarket business, and Martin wished to expand the small store business. They were unable to agree on which course to take or otherwise to agree on coordinating their different business objectives.
Martin was concerned about Mic’s overdependence on a small number of large supermarket accounts. He felt that a diversified customer base of small independent stores with higher gross profits carried less risk. Martin was concerned about the smaller profit margins of the supermarket business and also felt that the small stores had a better record of paying mic’s invoices in full and on time.
Arnold attributed Martin’s disparagement of the supermarket business to his dislike of the process of developing and maintaining the personal relationships with the managers and owners of the supermarkets that was needed to maintain access to supermarket freezer space. Arnold believed that the small volume of sales generated by each of the independent stores did not justify the effort to acquire and service their accounts.
Arnold and Martin each blamed the other’s approach to management of his own line of the business for Mic’s not being more profitable during the mid-1980’s.
From 1985 through 1988, Arnold’s and Martin’s disagreements intensified, especially in the aftermath of Arnold’s promotion of Mic’s failed investment in a warehouse facility in central Newark that would have substantially expanded mic’s capability to distribute ice cream to the supermarkets, just as Háagen-Dazs was building its own large distribution facility in the Bronx. Mic’s share of the total cost of the Newark facility would have been about $2.5 million. In 1987 or
By 1988, Martin no longer wanted to work with Arnold, and Arnold felt that Martin was pushing him to retire. They were looking for a way to end their constant strife over the future direction of petitioner. Their disagreement had made them both receptive to the first overture from Háagen-Dazs in May 1986. At that time, Arnold and Martin began consulting with their attorney, Russell L. Hewit (Mr. Hewit), concerning the negotiations with Háagen-Dazs.
To memorialize the termination of discussions, Mr. Hewit sent Háagen-Dazs a letter dated April 7, 1987, stating that he understood Háagen-Dazs to have made an initial offer of $3 million for “the Haagen-Dazs portion of the business”. In a letter dated April 16, 1987, Háagen-Dazs replied that it had not offered $3 million, and that the distribution rights under discussion were worth approximately $1 million. Despite the breakdown in formal negotiations, the parties remained in contact. On January 8, 1988, Arnold signed a new confidentiality agreement.
On May 4, 1988, the MIC board of directors, consisting of Martin, Arnold, and Mr. Hewit, and Arnold and Martin as Mic’s shareholders, adopted and approved resolutions to form a subsidiary of MIC, to be called Sic. Later that month, negotiations resumed between Háagen-Dazs and Arnold and Martin regarding the possible sale of Arnold’s supermarket distribution rights.
As with the earlier negotiations, Arnold took the lead in the negotiations with Háagen-Dazs. Between May 13 and May 23, 1988, Arnold and Martin met at least three times with Háagen-Dazs representatives. On May 16, 1988, Hewit wrote a letter to Charles McGill, vice president — acquisitions, for Pillsbury, stating that, on May 13, proposals for Háagen-Dazs to buy Mic’s “supermarket and food service business
On May 19, 1988, the parties discussed the outlines of an agreement to sell the supermarket and food service distribution business to Háagen-Dazs. On May 23, 1988, Mr. Hewit wrote another letter to Mr. McGill detailing the terms discussed in the meetings, including an overall price of $1.5 million for that business, $350,000 in additional contingent payments payable over 3 years, and annual payments of $150,000 to Arnold for 3 years, and of $50,000 to Martin for 5 years in return for consulting services and covenants not to compete in the retail super-premium ice cream distribution business, except as MIC and Martin would continue to distribute ice cream to stores other than the supermarket chains. Mr. Hewit’s letter did not refer to any allocation of the total price between distribution rights as such and the business records related to those rights, or even refer to any such records. Háagen-Dazs had derived the total price it was willing to pay from a formula based upon Mic’s annual sales of Háagen-Dazs products to the supermarkets.
On May 31, 1988, sic’s certificate of incorporation was filed with the New Jersey secretary of state, and SIC was organized as a wholly owned subsidiary of MIC. On June 2, 1988, Stan Oleson of Pillsbury sent Mr. Hewit a draft “Agreement for Purchase and Sale of Assets” and other associated draft documents. The agreement documents listed Arnold, Martin, MIC, and Sic collectively as “Sellers” and provided for the purchase of any and all of sellers’ distribution rights, “including but not limited to supermarket and food service distribution rights, if any” and their cancellation by the “Buyer”. On June 6, 1988, Mr. Hewit replied to Mr. Oleson with a letter containing a number of modifications to the proposed agreements, chief among which was elimination of all references to Martin and MIC as parties to the proposed sale so as not “to increase the risk that the 355 Exchange will be collapsed”. During the negotiations that culminated in the signing on July 8 of a sale agreement between Arnold and SIC as sellers and Háagen-Dazs as buyer, Mr. Hewit did not draft
On June 14, 1988, Beth L. Bronner, vice president for strategic and business development for Háagen-Dazs, replied to Mr. Hewit’s letter of June 6, stating that Háagen-Dazs had “incorporated, where possible, the suggested changes in your redraft and letter of June 6. However, many of the points in your letter reflected a transaction materially different from the one we believed we had negotiated with your clients”. Ms. Bronner’s letter stated that Háagen-Dazs had incorporated “your proposed exclusion of Martin Strassberg and * * * [MIC] from the Purchase Agreement,” although it created “an important issue with which we must deal” in light of Háagen-Dazs’ main objective of obtaining “any and all distribution rights” of both Arnold and Martin and their respective companies. Ms. Bronner proposed to resolve this issue through a separate “side agreement” in which Martin and MIC “would clearly acknowledge” that all rights to distribute “Háagen-Dazs products have been transferred to * * * [Sic] and that he * * * [Martin] claims no rights to distribute Háagen-Dazs.”
Mr. Hewit sought advice from two tax attorneys, Charles E. Falk, an attorney-C.P.A. with an LL.M. in taxation from New York University School of Law, and Martin’s brother-in-law, Jan Neiman, an attorney practicing tax law in Miami Beach, Florida, on the tax structuring of the transactions creating sic and distributing its stock to Arnold.
On June 15, 1988, Arnold, Martin, and Mr. Hewit executed documents providing for the transfer of Mic’s interests in the supermarket business and associated customer and pricing lists from MIC to SIC and the exchange of Arnold’s stock in MIC for the stock of SIC (the split-off). The first of these documents, entitled “Agreement”, provided for the transfer of
All of the Corporation’s [MIC’s] rights to distribute Haagen-Dazs Ice Cream products to supermarket chains (Pathmark, Shop Rite, Foodtown and Acme) and food service accounts (restaurants, hotels and clubs), and the business records of said distributorship, including but not limited to customer lists and pricing lists, to the Subsidiary * * * for the purpose of transferring to Arnold all of the outstanding shares of the Subsidiary in exchange for the surrender by Arnold of all of his shares of the Corporation, in a transaction intended to qualify as a tax-free split-off under Internal Revenue Code Section 355, as amended * * *
A second document, dated June 15, 1988, also entitled “Agreement”, stated that Martin and Arnold were operating separate businesses that were formerly jointly operated by MIC, and that both Arnold and Martin “wish to assure a smooth transition so that neither party loses customers or employees as a result of * * * misunderstanding. The document further stated that
Following the Exchange, * * * [MIC] shall cooperate with * * * [SIC] and provide such assistance that is reasonably necessary for * * * [SIC] to conduct its business, provided that the rendering of such services does not unduly interfere with the conduct of * * * [MIC]’s business.
[SIC] shall pay to and reimburse * * * [MIC] for all costs incurred by * * * [MIC] in providing such services.
This agreement provided, among other things, that MIC would continue to deliver ice cream from its warehouse to SIC’s supermarket accounts after the June 15 transactions separating MIC and sic. MIC did continue to do so until the closing of Arnold’s and sic’s sale of assets to Haagen-Dazs on July 22.
On June 15, 1988, the MIC board of directors, consisting of Arnold, Martin, and Mr. Hewit, adopted a resolution, which
On June 20, 1988, Arnold and Mr. Hewit signed a directors’ resolution of SIC, submitting to Arnold, as sole shareholder of SIC, an offer by Háagen-Dazs to “purchase all of the rights of the Corporation [SIC] to distribute Haagen-Dazs ice cream products”. Arnold then signed a shareholder’s resolution to authorize SIC to enter into negotiations with Háagen-Dazs. In an undated memorandum, Arnold disclosed his customer list to Háagen-Dazs, most likely in response to a June 30 letter from Ms. Bronner.
In a letter to Mr. Hewit, dated July 1, 1988, Richard Wegener, a Pillsbury attorney, summarized changes made “to the various distributor agreements” pursuant to negotiations that had taken place the previous week. Mr. Wegener stated that, in the wake of those negotiations, Háagen-Dazs “clearly * * * [had its] work cut out concerning the financial issues raised by Section 4.5 of the proposed agreement.” Mr. Wegener exhorted Arnold “to get out * * * on the table” all relevant information required to complete that section, which was a warranty and representation by Arnold and SIC concerning sales of Háagen-Dazs ice cream products to supermarkets by MIC and SIC for the period of June 1, 1987, to
On July 8, 1988, Arnold, individually, and as president of SIC, and Ms. Bronner, on behalf of Háagen-Dazs, signed an “Agreement For Purchase and Sale of Assets” by Arnold and SIC, as “Sellers”, in which the parties agreed to the terms of the sale and related documents. Notwithstanding that the documents effectuating the split-off provided only for the transfer of supermarket and food service distribution rights and records to SIC, the Arnold-SlC-Háagen-Dazs agreement recited that SIC “owns all of the rights to distribute Háagen-Dazs product which were or may have been owned by Martin Strassberg and [MIC]”, and purported to provide, consistent with the Háagen-Dazs first draft, for the purchase of all distribution rights including but not limited to supermarket rights.
Unlike prior drafts of the purchase agreement in the record, the agreement as executed on July 8, 1988, between Háagen-Dazs and SIC and Arnold contains an Article 2.4 that
On July 20, 1988, Touche Ross & Co. submitted an audit report to Háagen-Dazs, stating that the audited sales were less than represented by Arnold and SIC. As late as July 21, Mr. Hewit was still negotiating with Háagen-Dazs on behalf of petitioner concerning the list of accounts that MIC would continue to service after the sale.
On July 22, 1988, Arnold and representatives of Háagen-Dazs closed the sale to Háagen-Dazs. The employees of MIC who had reported to Arnold before June 15 continued to do so until that date. Arnold thereupon notified MIC in writing that SIC no longer required the services of MIC in delivering ice cream products to the supermarkets or in otherwise servicing their accounts.
The closing documents contained an amendment to the purchase agreement — signed July 22 after receipt of the Touche Ross & Co. audit of the supermarket sales figures — stating that during the 12-month period ending May 31, 1988, the sales of Háagen-Dazs products to the four supermarket chains, food service accounts, and independent supermarkets
The bill of sale, signed by Arnold individually and as president of SIC, listed the items acquired from SIC as all existing customer lists, price lists, historical sales records, promotional allowance and rebate records, “and other business records as requested by Buyer, and the goodwill associated therewith”.
Arnold also signed an “Assignment of Rights”, which referenced — and transferred to Háagen-Dazs — the rights described supra, in two capacities: first, as president of Sic, and second, as an individual; there was no allocation of the consideration paid for the rights as between Arnold and SIC.
On March 3, 1989, petitioner filed a Form 1120S for 1988, reporting gross sales of $6,021,394 and an ordinary loss of $278. Rudolph Bergwerk signed the return as preparer. Mic’s
On April 10, 1989, SIC filed Form 1120S for its tax year 1988, which included a statement disclosing the sale of assets by SIC, including records and goodwill for $286,068 and the “right to distribute the product of buyer for $1,144,272”.
For each tax year thereafter through 1995, MIC reported the following losses and gross sales as compared with 1988 and earlier years:
Year Gross sales Taxable income Retained earnings
19861 $8,488,491 $68,728 $551,383
19872 1,137,298 284 551,676
19883 6,021,394 (278) 551,398
1989 4,718,087 (316,793) 238,541
1990 5,532,675 (58,153) 180,388
1991 5,882,632 (122,534) 59,654
1992 5,518,248 (75,726) (16,072)
1993 6,032,463 (69,622) (85,694)
1994 5,619,756 (201,778) (287,472)
1995 5,472,912 (49,396) (336,868)
ULTIMATE FINDINGS OF FACT
(2) the fair market value of the SIC stock distributed by petitioner to Arnold in redemption of his stock in petitioner was $141,000;
(3) Immediately after the distribution of the stock of sic to Arnold, and thereafter, SIC did not engage in the active conduct of a trade or business.
OPINION
1. Assets Transferred by MIC
Respondent advances two alternative grounds in support of the original determination that the $1,430,340 consideration received by Arnold and SIC measures the gain realized and recognized by petitioner: First, Arnold negotiated the sale of assets on behalf of MIC, and MIC should therefore be regarded as the true seller of the assets under the principle of Commissioner v. Court Holding Co.,
We disagree with respondent’s overall position, insofar as it is predicated on the assumption or conclusion that petitioner owned assets with a value of $1,430,340 that were sold to Háagen-Dazs. Petitioner never owned all the assets sold to Háagen Dazs. The record shows, and we have found as facts, that Arnold, acting on his own behalf and as agent for SIC, of which he was the sole shareholder, entered into a contract to sell Háagen-Dazs two distinctly different types of assets: The first, and much more valuable, was the intangible assets
Arnold built the business of wholesale distribution of super-premium ice cream to supermarkets on the twin foundations of his personal relationships with the supermarket owners, the development of which preceded the creation of petitioner by some years, and his personal, handshake understanding with Mr. Mattus, which continued with Haagen-Dazs after its sale to Pillsbury. In developing his supermarket distribution business, Arnold changed the way ice cream was marketed to customers in supermarkets. The success of the venture depended entirely upon Arnold. Mr. Mattus’ offer to go into business with Arnold distributing Haagen-Dazs ice cream products on the West Coast attests to the value that Mr. Mattus, Haagen-Dazs, and, later, Pillsbury placed on Arnold’s position in the market, which retained considerable value as late as June 1988, when petitioner distributed the SIC stock to Arnold in redemption of his stock in petitioner.
Ownership of these intangible assets cannot be attributed to petitioner because Arnold never entered into a covenant not to compete with petitioner or any other agreement — not even an employment agreement — by which any of Arnold’s distribution agreements with Mr. Mattus, Arnold’s relationships with the supermarkets, and Arnold’s ice cream distribution expertise became the property of petitioner. This Court has long recognized that personal relationships of a shareholder-employee are not corporate assets when the employee has no employment contract with the corporation. Those personal assets are entirely distinct from the intangible corporate asset of corporate goodwill. See, e.g., Estate of Taracido v. Commissioner,
In the case at hand, as in MacDonald v. Commissioner, supra, petitioner never obtained exclusive rights to either Arnold’s future services or a continuing call on the business generated by Arnold’s personal relationships with the supermarket owners and the rights under his agreement with Mr. Mattus; petitioner never had an agreement with Arnold that would have caused those relationships and rights to become petitioner’s property. Even if there had been such an agreement, and the record shows that there was none, the value of these relationships and rights would not have become petitioner’s property in toto. In 1974, Mr. Mattus sought Arnold as his agent to create a substantial presence for Háagen-Dazs ice cream in supermarkets after Mr. Mattus had been able to achieve only minimal market penetration through his own efforts. Mr. Mattus wanted what Arnold had already created in the 1960’s when he operated Arnold’s Ice Cream — the critical relationships with key supermarket owners and managers and the marketing know-how necessary to put ice cream products in supermarket freezers. See, e.g., Coskey’s Television & Radio Sales & Serv., Inc. v. Foti,
Our conclusion that the rights under the oral agreement with Mr. Mattus, the personal relationships with supermarket owners and managers and the ice cream distribution expertise, belonged to Arnold rather than petitioner is confirmed by the disparity between the sales price paid by Háagen-Dazs to Arnold and SIC and the value of petitioner as an ongoing business just before the split-off. The sales figures
Our conclusion is not impaired by the fact that the corporate documents created by Mr. Hewit to accomplish the transfer of some of petitioner’s assets to Sic and the distribution of SIC stock to Arnold purported to transfer supermarket distribution rights owned by petitioner.
2. MIC Is Not the Deemed Seller of Assets to Haagen-Dazs Under Court Holding
Respondent argues that Arnold began and completed the negotiations with Haagen-Dazs for the sale of distribution rights on behalf of petitioner. Respondent would have us believe that all essential terms fixed by the negotiations had been settled before Mr. Hewit informed Haagen-Dazs that SIC and Arnold would be the named sellers of the assets in the purchase agreement and instructed Haagen-Dazs to omit all references to Martin and petitioner from the purchase agreements. Respondent urges the Court to apply the principle of Commissioner v. Court Holding Co.,
Any analysis of Court Holding would be incomplete without an examination of United States v. Cumberland Pub. Serv. Co.,
Court Holding and Cumberland Pub. Serv. together support a narrow rule or holding on the genuineness of corporate liquidations. In Court Holding, the Supreme Court upheld this Court’s factual finding that the liquidation of the corporation
Court Holding and Cumberland Pub. Serv. also provide a broader principle that helps to explain why a corporate liquidation is respected in one setting and disregarded in another.
This Court and others have acknowledged this broader principle of what Court Holding and Cumberland Pub. Serv. stand for.
Arnold, on behalf of himself as well as petitioner, began negotiations with Háagen-Dazs with respect to the sale of distribution rights in January 1988. On May 4, 1988, MIC adopted corporate resolutions authorizing the creation of a wholly owned subsidiary to be called SIC. Over the following weeks, Arnold, Mr. Hewit, and representatives of Háagen-Dazs continued to negotiate the price and terms of a sale of distribution rights by MIC to Háagen-Dazs. On May 31, 1988, SIC was organized as a wholly owned subsidiary of MIC. On June 6, 1988, in response to the Háagen-Dazs first draft of purchase agreement, which provided for the sale of all distribution rights, Mr. Hewit informed Háagen-Dazs that Martin and MIC would not be parties to the sale transaction. In a letter sent to Mr. Hewit dated June 14, 1988, Ms. Bronner stated that Háagen-Dazs, as requested by Mr. Hewit, would eliminate references to Martin and MIC from the purchase agreement, but she insisted that Háagen-Dazs had to acquire “any and all” of the distribution rights owned by Martin, Arnold, and their respective companies. On June 15, 1988, MIC executed documents providing for the transfer of supermarket chain and food service distribution rights, and business
The facts of this case are distinguishable from those of Court Holding. In Court Holding and other cases applying its holding, such as Waltham Netoco Theaters, Inc. v. Commissioner, supra, the change in the identity of the sellers took place at the last minute. In such cases, the only difference in whether the corporation or all its shareholders are regarded as the seller(s) lies in whether the proceeds of the sale to which the shareholders become entitled will be decreased by the amount of the corporate-level tax imposed. In the present case, the change in the identity of the sellers, namely the removal of Martin and MIC, resulted in a significant economic change that was independent of any change in tax consequences. Once Sic, wholly owned by Arnold, was designated as the seller, along with Arnold, a situation was created in which all proceeds of the sale would come under the control of Arnold, to the exclusion of Martin and MIC.
The change in the identity of the sellers was not a “last minute” change in a deal that had already been consummated, or whose terms had been completely negotiated. Rather, it signaled the birth of a new deal significantly different
Not only are the facts of this case distinguishable from those of Court Holding, but they also fall under the rubric of Cumberland Pub. Serv., where the taxpayer corporation did not negotiate a sale of assets. As in Cumberland Pub. Serv., we focus on the “negotiation substance” of the transaction to determine whether it is consistent with its form. This requires us to first identify the transaction, whose negotiations we examine. Where, as here, a change in the identity of a seller occurs during the negotiation process, and that change has business purposes and economic effects that are independent of any tax consequences, then the transaction is transformed and a new transaction arises. In then determining whether the form of the new transaction is consistent with its substance, the only negotiations that are relevant are those that occur after the identity of the seller has changed.
After SIC became a party to the sale transaction, replacing petitioner, the transaction was transformed. In determining whether the form of the transaction is consistent with its substance, we focus on the negotiations that occurred once Sic became the named seller in the proposed new transaction. Petitioner took no part in these subsequent negotiations for the sale of distribution rights, and therefore the final form of the transaction is consistent with its substance. We accordingly deny respondent’s attempt to apply Court Holding to treat petitioner as a seller of assets to Háagen-Dazs.
3. Split-Off Did Not Qualify Under Section 355
Section 355 generally allows a corporation to make a tax-free distribution of an amount of stock constituting control of a corporation (control being defined in section 355(a)(l)(D)(ii)
Respondent determined that petitioner failed to satisfy several of the requirements for nonrecognition of gain under section 355 when it distributed SIC stock to Arnold in redemption of Arnold’s stock in petitioner. We need consider only whether SIC was actively engaged in a trade or business immediately after the split-off within the meaning of section 355(a)(1)(C) and (b)(1)(A), which requires that the distributing corporation and the subsidiary corporation both be “engaged immediately after the distribution in the active conduct of a trade or business”. Sec. 355(b)(1)(A).
The determination of whether a trade or business is actively engaged in is a factual question requiring an examination of all the facts and circumstances. Under section 1.355-(l)(c), Income Tax Regs., a corporation is treated as engaged in a trade or business immediately after the distribution if it
consists of a specific existing group of activities being carried on for the purpose of earning income or profit from only such group of activities, and the activities included in such group must include every operation which forms part of, or a step in, the process of earning income or profit from such group. * * *
By requiring that a trade or business be actively conducted, section 355 envisions a corporation with substantial management and operational activities directly carried on by the corporation itself. See sec. 1.355-3(b)(2)(iii), Proposed Income Tax Regs., 42 Fed. Reg. 3870 (Jan. 21, 1977);
SIC used petitioner’s employees in all of its operational activities. Petitioner was retained as an independent contractor by SIC. Petitioner and Martin’s agreement with SIC and Arnold stated that MIC would provide all services “reasonably necessary” for SIC to carry on during an interim period while it made alternative arrangements. Pursuant to that agreement, drivers employed by MIC made all the deliveries to SIC’s supermarket accounts during the interim 6-week period. Other than perhaps Arnold, its sole shareholder, SIC had no employees.
SIC used petitioner’s tangible assets in all of its operational activities. After the distribution, petitioner continued to own all the refrigerated trucks and storage facilities required to operate both the small store and supermarket businesses. During the period between the split-off and the sale to Háagen-Dazs, trucks owned by MIC made all the deliveries to the supermarkets, and the MIC warehouse and refrigeration facilities were used to store the Háagen-Dazs ice cream products until they could be delivered to the supermarkets. The supermarket customers themselves were largely, unaware until the closing of the transactions with Háagen-Dazs on July 22 that Martin and MIC had parted company from Arnold and SIC.
4. Petitioner’s Gain Recognized on Distribution of SIC Stock
Because petitioner’s transfer of assets to SIC and distribution of SIC stock to Arnold do not qualify for nonrecognition of gain under section 355, we must determine the Federal income tax consequences of these transactions under other provisions of the Code.
a. MIC’s Transfer of Assets to SIC
Under section 351(a), a transfer of property to a corporation solely in exchange for its stock does not trigger a recognition event, provided that immediately after the transfer the transferor or transferors “are in control (as defined in section 368(c))” of the transferee. Section 351(c) modifies the controlling interest requirement, providing that, in determining control for this purpose, the fact that a corporate trans-feror distributes to its shareholders all or part of the stock of the transferee “shall not be taken into account.”
The June 15, 1988, transfer of assets by MIC to SIC, solely in exchange for the stock of SIC, is a nonrecognition event under section 351(a). Immediately after the transfer, MIC received all the stock of sic, which it thereupon distributed to one of its shareholders, Arnold. By reason of section 351(c), the distribution of Sic stock to Arnold does not adversely affect the conclusion that MIC had a controlling interest in SIC immediately after the transfer.
In Rev. Rul. 68-298, 1968-
b. Distribution of SIC Stock to Arnold in Redemption of His Stock in Petitioner
While the transfer of assets by MIC to SIC was a nonrecognition event for Federal income tax purposes, the subsequent distribution of Sic stock to Arnold by MIC was not. The rules of subchapter C determine whether and to what extent an S corporation recognizes gain on the distribution of property in redemption of its stock. S. Rept. 100-445, at 66 (1988); see also Eustice & Kuntz, Federal Income Taxation of 5 Corporations, par. 8.02[l][a], at 8-24, par. 13.06[2], at 13-40 (3d ed. 1993).
The distribution of Sic stock to Arnold in exchange for his stock in petitioner was a distribution of property under section 317(a), amounting to a redemption by petitioner of its stock held by Arnold.
Petitioner presented no evidence to establish the adjusted basis of assets transferred to SIC in the section 351 exchange. Inasmuch as petitioner has the burden of proof with respect to this issue and presented no evidence, we accept respondent’s determination of the adjusted basis of the SIC stock, which is zero, the same as the adjusted basis of the assets that petitioner transferred to SIC in the section 351 exchange. Sec. 358(a)(1).
c. Amount Realized on Distribution of SIC Stock
We next determine the fair market value of the appreciated property that petitioner distributed to Arnold — the sic stock. To ascertain the fair market value of property, whether for income tax purposes or for estate tax purposes, Champion v. Commissioner,
Our task is made all the more difficult by the lack of any direct evidence in the record of the market value of the SIC stock. However, we may approximate the value of the SIC stock by determining the fair market value of Arnold’s previously held stock in MIC, inasmuch as the taxable event at issue is the distribution by MIC of SIC stock in redemption of Arnold’s stock in MIC. See United States v. Davis,
Respondent did not submit an expert’s report valuing the SIC stock, arguing that this is not a valuation case. In respondent’s view, the intervening transfer of property by MIC to SIC and exchange of Sic stock for Arnold’s MIC stock are to be disregarded, and petitioner held, under the Court Holding theory, to be the constructive seller of all property sold to Háagen-Dazs, having a fair market value of $1,430,340, as established by the price paid by Háagen-Dazs for assets purchased less than 6 weeks later. Similarly, respondent argues, even if respondent loses on the Court Holding theory, that the price paid in the Háagen-Dazs sale is the best evidence of the value of the assets transferred from MIC to SIC and of the value of Arnold’s MIC stock that was redeemed. For reasons previously discussed, we have rejected respondent’s overall position equating petitioner’s gain with the total amount of the consideration paid by Háagen-Dazs in the purchase and sale transaction.
Petitioner submitted an expert witness report that valued Arnold’s share of MIC as an ongoing business prior to the June 15 transfer at $141,000. Rudolph Bergwerk, a certified public accountant, prepared the report for petitioner. Expert opinions can aid the Court in understanding an area of specialized training, knowledge, or judgment, such as valuation. Perdue v. Commissioner,
Respondent urges the Court to reject Mr. Bergwerk’s report in its entirety on the ground that he was a “hired gun”. Cf. Estate of Mueller v. Commissioner,
Mr. Bergwerk is a certified public accountant who had an ongoing professional relationship with petitioner as petitioner’s tax return preparer from 1982 through 1985. Mr. Bergwerk prepared personal income tax returns for Martin and Arnold during this same period. He also represented petitioner before the IRS in the audit that preceded the issuance of the deficiency notice at issue in this case. Respondent argues that these prior relationships so infect Mr. Bergwerk’s report with bias that we should completely disregard it. The mere existence of the relationships does not automatically disqualify Mr. Bergwerk as petitioner’s expert. See, e.g., Estate of Bennett v. Commissioner,
In Estate of Halas v. Commissioner, supra at 578, we stated that an “appraiser’s duty closely corresponds to the public duty of an auditor or certified public accountant.” On the basis of the nature of the report, which we discuss infra, Mr. Bergwerk’s professional qualifications as a certified public accountant, and the testimony of Mr. Bergwerk, we are satisfied that Mr. Bergwerk was not acting as a mere advocate for petitioner, but as an appraiser with a duty to the Court. Id. at 577. However, we do not ignore or disregard this prior and continuing relationship between Mr. Bergwerk and petitioner, Arnold, and Martin and weigh it in the balance of whether — and the degree to which — to accept Mr. Bergwerk’s expert opinion.
Mr. Bergwerk stated that he had based his report on the methodology set forth in Rev. Rul. 59-60, 1959-
Mr. Bergwerk’s report characterized petitioner as an undiversified company engaged in a single line of business, the wholesale distribution of ice cream products, which was highly dependent on weather and time of year. Petitioner also had “an unhealthy concentration” of its business in Háagen-Dazs products. Despite such drawbacks, the company had expanded its gross sales substantially in the 5 years before the distribution of SIC stock. Mr. Bergwerk opined that the potential for further growth was limited because of the ability of supermarkets and ice cream manufacturers to eliminate independent wholesale distributors from business.
Mr. Bergwerk expressly considered each of the factors set forth in Rev. Rui. 59-60, 1959-
Mr. Bergwerk used the same three factors and approach used in Bader v. United States,
Despite the problems we have with Mr. Bergwerk’s report, we find that Mr. Bergwerk’s estimate of the fair market value of petitioner just prior to the transactions in issue provides a reasonable upper limit on the value of petitioner as of June 1988; we adopt Mr. Bergwerk’s figure, in the absence of countervailing expert opinion and testimony from respondent.
Of the three valuation factors used by Mr. Bergwerk, the highest amount was book value as of October 31, 1987, $552,061.
Mr. Bergwerk opined that the corporation had no goodwill because the rate of return on tangible assets did not exceed 10 percent, a rate of return on tangible assets suggested by Rev. Rui. 68-609, 1968-
Mr. Bergwerk determined that petitioner had no dividend-paying capacity, using the methodology that this Court used in Bardahl Manufacturing Corp. v. Commissioner,
an actual or effective controlling interest in a corporation is to be valued, the dividend factor is not a material element, since the payment of such dividends is discretionary with the controlling stockholders. The individual or group in control can substitute salaries and bonuses for dividends, thus reducing net income and understating the dividend-paying capacity of the company. It follows, therefore, that dividends are less reliable criteria of fair market value than other applicable factors.
Even though a valuation derived from dividend-paying capacity is an inappropriate factor in this case, the relative lack of dividend-paying capacity cannot be entirely ignored in that it shows the extent to which petitioner was undercapitalized in those years — a factor that negatively affects petitioner’s fair market value.
Under the circumstances of this case, use of book value would tend to overvalue petitioner, especially in light of the effect of the relatively low — and dropping — ratio of net income to sales during the mid-1980’s on the value of petitioner and the relative lack of dividend-paying capacity, which shows the precarious nature of petitioner’s financial health. Capitalized earnings at a 6.25:1 price/earnings ratio, $331,394, also overvalues petitioner to the extent that it does
Although Mr. Bergwerk discussed petitioner’s overreliance on Háagen-Dazs as its major supplier, he did not expressly take into account the negative effect on marketability — and hence fair market value — of Háagen-Dazs’ effective veto over any sale to an unrelated third party. Because of the tenuous nature of petitioner’s distribution rights — if any — to Háagen-Dazs products, Háagen-Dazs could effectively stop a sale of petitioner, if it did not approve of the buyer, by threatening to stop supplying petitioner with its product. The withdrawal of Háagen-Dazs as a supplier would leave petitioner as little more than a collection of physical assets and a distribution network with nothing to distribute. Háagen-Dazs’ cold shoulder to Mr. Hewit’s overture in his May 16, 1988, letter concerning the possible sale of the nonbanner business to an unrelated third party, and the abandonment of any further effort to sell by Martin, is probative, not only of the effect of Háagen-Dazs’ veto on petitioner’s marketability — and its market value — but also of the likelihood that Háagen-Dazs would have used such a veto.
Another factor having a depressing effect on fair market value is the lack of value that Háagen-Dazs attached to petitioner as an ongoing business concern. This is demonstrated by the refusal of Háagen-Dazs to consider buying any of petitioner’s assets beyond a few business records that documented the sales to the supermarkets. Despite petitioner’s investment in refrigerated trucks and warehouse facilities during the mid-1980’s — which contributed to the anemic position of its net current assets and its inability to pay dividends — Háagen-Dazs still considered petitioner’s physical plant and equipment to be substandard for purposes of distributing Háagen-Dazs ice cream.
We must also consider the effect of petitioner’s being a small, family-owned business on the sale by either Arnold or Martin of his interest in petitioner without the sale of the other interest. While we do not assign a precise value to this discount factor, the closely held nature of petitioner and the reluctance of a third party to buy into a family-owned business, especially one with the handicaps we have just recited, could serve only to decrease the market value of the interest for sale.
Most importantly, petitioner’s earnings in the years preceding the split-off were substantially attributable to Arnold’s oral agreement with Mr. Mattus and his relationship with the supermarkets. As we have found, the supermarket distribution rights were personal to Arnold and did not belong to petitioner. The assumption underlying a capitalization of earnings approach is that, barring adverse developments, the historical earnings will continue. Therefore, in valuing petitioner as of the time of the split-off, which marks the parting of the ways between petitioner and Arnold, an adverse development indeed, it makes no sense to assume that petitioner’s earnings would continue at the same level in the future, or even that there would be no more than a pro rata reduction of such earnings by reason of Arnold’s departure.
Under the circumstances of this case, where there was a heavy investment in physical assets during a period when the corporation had been unable to pay dividends, an absence of a second tier of management, a lack of diversification in business, an overdependence on one supplier, Háagen-Dazs, and on one primary “rainmaker”, Arnold, who was leaving, the risk of petitioner’s being completely eliminated from business as an independent wholesale distributor, the effective veto Háagen-Dazs had over any sale to a third party, the fact that petitioner is a closely held, family-owned business, and the declining ratio of net income to sales, we find that a value of $276,509 is the upper limit to a fair estimate of the value of petitioner immediately prior to the transactions at issue.
Respondent’s determination of the value of assets sold to Háagen-Dazs by SIC, and the corresponding value of sic stock distributed to Arnold, is presumptively correct, and the burden of proving a lower value rests on petitioner. Rule 142(a); Frazee v. Commissioner,
Section 1363(a) provides that, generally, S corporations are not subject to income tax. However, when a former C corporation such as MIC elects S corporation status and then distributes or sells appreciated property, it may be liable for tax under section 1374 if the S corporation election was made prior to January 1, 1987. TRA sec. 633(b), 100 Stat. 2277; H. Conf. Rept. 99-841 (Vol. II), at 11-203 (1986), 1986-3 C.B. (Vol. 4) 1, 203. Petitioner is a former C corporation that elected S status prior to January 1, 1987.
Section 1374, as applicable to petitioner for the year in issue, reads in pertinent part:
SEC. 1374(a). Genekal Rule. — If for a taxable year of an S corporation—
(1) the net capital gain of such corporation exceeds $25,000, and exceeds 50 percent of its taxable income for such year, and
(2) the taxable income of such corporation for such year exceeds $25,000,
There is hereby imposed a tax (computed under subsection (b)) on the income of such corporation.
(d) Determination of Taxable Income. — For purposes of this section, taxable income of the corporation shall be determined under section 63(a) without regard to—
(1) the deduction allowed by section 172 (relating to net operating loss deduction), and
(2) the deductions allowed by part VIII of subchapter B (other than the deduction allowed by section 248, relating to organization expenditures).
In order for section 1374 to apply, petitioner must have recognized “net capital gain”, which means the excess of net long-term capital gain over net short-term capital loss, as defined in section 1222. Given that petitioner reported no capital gains or losses on its 1988 income tax return, in order for section 1374 to apply, petitioner’s distribution of sic stock to Arnold must have resulted in a long-term capital gain, exceeding $25,000. This, in turn, requires that SIC stock be a capital asset in the hands of petitioner and that petitioner be deemed to have held the Sic stock longer than 1 year. See sec. 1222(3), as amended by sec. 1402(a), of the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1520, 1731.
Second, petitioner is deemed to have held the sic stock for more than 1 year. Respondent acknowledged that petitioner’s transfer of assets in exchange for the stock of sic qualified for nonrecognition under section 351. See supra p. 218. Under sections 1223 and 358, where a taxpayer has transferred property in a transaction that qualifies for nonrecognition under section 351, the taxpayer’s holding period in the stock received in the transaction includes the period for which the taxpayer has held the property transferred in the transaction. Petitioner’s holding period in SIC stock therefore includes the period it held the assets transferred to SIC. Petitioner presented no evidence to establish that its holding period of the assets, or any part of the assets, transferred to SIC was less than 1 year. Inasmuch as petitioner has the burden of proof on this issue and has presented no evidence, we
Petitioner’s long-term capital gain of $141,000, resulting from petitioner’s distribution of SIC stock in redemption of Arnold’s stock in petitioner, is petitioner’s only capital gain in 1988. Accordingly, petitioner had “net capital gain” (as defined in section 1222) for purposes of section 1374. When the $141,000 of capital gain is included, petitioner’s net capital gain exceeds $25,000 and also exceeds 50 percent of petitioner’s taxable income for 1988, as defined in section 1374(d).
5. Additions to Tax
a. Negligence
For taxable year 1988, section 6653(a)(1) adds to tax an amount equal to 5 percent of an underpayment of tax required to be shown on the return that is due to negligence or disregard of rules or regulations. Sections 6653(c)(1) and 6212 essentially define an underpayment for purposes of this section as the equivalent of a deficiency.
Section 6653(a)(3) provides that negligence includes “any failure to make a reasonable attempt to comply with the provisions of this title, and the term ‘disregard’ includes any careless, reckless, or intentional disregard.” Courts have defined negligence as the lack of due care or failure to do what an ordinarily prudent person would do under the circumstances. Bassett v. Commissioner,
In United States v. Boyle,
In this case, Martin, as president of petitioner, and Arnold both relied on legal advice from Mr. Hewit throughout the protracted negotiations with Háagen-Dazs. Even though Mr. Hewit never gave a written tax opinion to petitioner or Arnold or Martin, Martin and petitioner were entitled to rely and proceed on the assumption that the transactions at issue were nontaxable to petitioner because of the way Mr. Hewit had structured the transactions and drafted the documents effecting the transactions that separated the two business lines. Mr. Hewit, in turn, sought advice from third-party tax professionals on how to structure a tax-efficient solution to resolve the growing dispute between Martin and Arnold over the future direction of petitioner as an ice cream distributor. Like the advice sought by .the taxpayer in Sim-Air, USA, Ltd. v. Commissioner, supra at 201, the advice that petitioner sought from Mr. Hewit, who in turn also sought expert advice, was subject to section 355, a complex section of the Code.
b. Substantial Understatement
For tax year 1988, section 6661(a) provides for an addition to tax of “25 percent of the amount of any underpayment attributable” to “a substantial understatement of income tax for any taxable year”, for penalties assessed after October 21, 1986. Section 6661(b)(1) defines a substantial understatement as any understatement that exceeds the greater of
Section 6661(b)(2)(B) provides a means to reduce the amount of the addition to tax, stating that
The amount of the understatement * * * shall be reduced by that portion of the understatement which is attributable to—
(i) the tax treatment of any item by the taxpayer if there is or was substantial authority * * *, or
(ii) any item with respect to which the relevant facts affecting the item’s tax treatment are adequately disclosed in the return or in a statement attached to the return.
Petitioner failed to disclose on its 1988 return or in a statement attached to the return, as required by section 1.6661-4, Income Tax Regs., the existence of its transfer of assets to SIC and its distribution of sic stock to Arnold in redemption of his stock in petitioner. We note that sections 1.368-3(a), 1.355-5(a), and 1.351-3(a), Income Tax Regs., also require disclosure of all plans of reorganization, distributions of stock of a controlled subsidiary, and transfers to controlled corporations, respectively. Because petitioner failed to disclose the transactions at issue on its 1988 income tax return, the understatement may not be reduced on the ground of adequate disclosure. Sec. 6661(b)(2)(B)(ii); sec. 1.6661-4, Income Tax Regs.
Substantial authority is defined in section 1.6661-3(a)(2), Income Tax Regs., as
less stringent than a “more likely than not” standard (that is, a greater than 50-percent likelihood of being upheld in litigation), but stricter than a reasonable basis standard (the standard which, in general, will prevent imposition of the penalty under section 6653(a), relating to negligence or intentional disregard of rules and regulations). Thus, a position with respect to the tax treatment of an item that is arguable but fairly unlikelyto prevail in court would satisfy a reasonable basis standard, but not the substantial authority standard.
With respect to the issue of whether Commissioner v. Court Holding Co.,
Petitioner has not prevailed on the issue of whether section 355 confers nonrecognition of gain realized in the split-off. Petitioner must therefore demonstrate that substantial authority supports the positions taken on the income tax return with respect to those transactions. Gallade v. Commissioner,
Section 6661(c) authorizes the Commissioner to waive “all or any part of the addition to tax * * * on a showing by the taxpayer that there was reasonable cause for the understatement (or part thereof) and that the taxpayer acted in good faith.” While the authority to waive the section 6661(a) addition to tax rests with the Commissioner and not with this Court, we review a denial of waiver by the Commissioner under the abuse of discretion standard. Gallade v. Commissioner, supra at 367-368; Mailman v. Commissioner,
We find no evidence in the record that petitioner ever requested a waiver. Accordingly, as we noted in Alondra Indus., Ltd. v. Commissioner,
Even if petitioner had requested a waiver, we would hold that petitioner has not established that respondent would have committed an abuse of discretion in refusing the request. In this case, petitioner would have been required to show that reliance on the professional advice of Mr. Hewit was reasonable and that petitioner acted in good faith under the circumstances. Sec. 1.6661-6(b), Income Tax Regs. While we have held that petitioner has established, by the preponderance of the evidence, that it was not negligent for purposes of section 6653(a), the evidence before us on that issue was not completely uncontroverted, especially in light of petitioner’s failure to disclose the split-off on its 1988 income tax return. We therefore cannot say that reasonable cause and good faith were so clear that any refusal by respondent to waive the addition to tax would have amounted to an abuse of discretion as being without sound basis in fact. See, e.g., Vandeyacht v. Commissioner,
Accordingly, we sustain respondent’s determination that petitioner is liable for the section 6661(a) addition to tax on the underpayment.
Decision will be entered under Rule 155.
Notes
All section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated.
Háagen-Dazs delivered its products to the MIC warehouse, where they were transferred to MIC trucks for delivery to both the supermarkets and the small grocery stores and food service accounts.
In re Super Premium Ice Cream Distribution Antitrust Litig.,
During the negotiations with Arnold, attorneys for Pillsbury sent Russell L. Hewit (Mr. Hewit), attorney for Arnold, Martin, and MIC, a copy of applicable sections of two treatises on franchising, Rosenfield, The Law of Franchising, and Brown, Franchising Realities and Remedies (1982 rev.), in support of its contention that MIC, SIC, Arnold, and Martin had no enforceable rights to distribute Háagen-Dazs ice cream products that could not be terminated at will.
There is no evidence in the record that it ever occurred to Mr. Hewit, Martin, or Arnold that Martin and MIC should obtain separate legal representation, independent from Arnold, in negotiating and effectuating the split-off and the transactions with Haagen-Dazs.
The record includes an “Agreement”, signed by Martin and Ms. Bronner on behalf of MIC and Haagen-Dazs, respectively, on July 8, 1988, that appears to be the contemplated “side agreement” referred to by Ms. Bronner in her June 14 letter. This agreement states that Haagen-Dazs and MIC would enter into three distribution agreements upon the closing of the Haagen-Dazs agreement with Arnold and SIC. The three distribution agreements, which were signed July 22, 1988, provide MIC with various rights to distribute certain Háagen-Dazs ice cream products in specified convenience stores, delis, places where ice cream is consumed on the premises, and other small independent grocery stores in New Jersey and parts of New York.
Martin also consulted with Mr. Neiman, who told him that “this is the way you should do it”, referring to a distribution of stock under sec. 355 as a means of dissociating Arnold from MIC. It is unclear from the record whether Mr. Falk and Mr. Neiman were aware of the ongoing negotiations with Háagen-Dazs.
The agreement enumerated the “Sellers’ Rights” as
Any and all of Seller’s rights and the rights of any corporations or entities owned or controlled by Sellers obtained from Buyer, its predecessors, its customers or others to distribute the products of Buyer within the states of New York, New Jersey, Pennsylvania, Massachusetts, Delaware, Connecticut and elsewhere including but not limited to supermarket and food service distribution rights, if any (the “Sellers’ Rights”) * * *. Upon Closing of the transactions contemplated herein, any and all of such Sellers’ Rights obtained by Sellers from Buyer or its predecessors shall be cancelled.
“Non-banner” business was defined by the agreement as “independent convenience stores and delis that have no more than two cash registers * * ,s ‘independent’ shall mean a firm which operates from one to ten stores”.
The agreement provided that if the audited supermarket sales were greater than $4 million but less than $4,700,000, then there would be a downward adjustment to the purchase price equal to:
[l-(audited sales figures/$4,700,000)] x $2,350,000.
The agreement allocated 81 percent of the downward adjustment to the purchase price to be paid at closing and 19 percent to the contingent annual payments payable to Arnold over the following 3 years.
Martin testified that MIC and SIC delayed changing how product was delivered to the supermarket customers in order to get through the busy summer season.
Subsequent to trial, respondent submitted to the Court a facsimile of the face of a Háagen-Dazs check to SIC in the amount of $1,430,340, accompanied by an affidavit that Háagen-Dazs issued the check to SIC as payment due at the closing of the sale of assets purportedly sold by SIC to Háagen-Dazs. We do not admit the facsimile and affidavit into evidence; there is sufficient evidence in the record to support a finding that SIC received the entire payment from Háagen-Dazs. However, because we decide this case as we do, initial receipt of payment by SIC instead of Arnold does not determine the Federal tax treatment to petitioner of the transactions at issue.
Tax year Nov. 1, 1986-Oct. 31, 1987.
Tax year Nov. 1, 1987-Dec. 31, 1987.
Supermarket distribution rights and records sold to Haagen-Dazs July 22, 1988.
This statement attached to the SIC Form 1120S indicates that the downward adjustment of $69,660 to the purchase price paid by Haagen-Dazs at closing was allocated between the distribution rights and business records of SIC in the same proportions as the relative amounts of the preadjustment allocation of the purchase price to be paid at the closing — 80 percent, or $55,728, to the distribution rights, and 20 percent, or $13,932, to the business records. The closing documents do not set forth or otherwise contain any reference to the allocation between distribution rights and business records of the reduction in the price paid at closing.
We note that the record contains no documents that actually transfer assets from MIC to SIC in exchange for SIC stock. The record contains only the MIC corporate resolutions stating the intention to make such a transfer. However, we are satisfied by those corporate resolutions and testimony by Arnold, Martin, and Mr. Hewit that such a transfer did occur, in the sense that petitioner transferred to SIC the records of the supermarket business and whatever rights petitioner had in that business.
Petitioner may have had some residual rights to distribute Haagen-Dazs ice cream, but they were independent of Arnold’s supermarket relationships and his value as a middleman. To the extent that they existed at all, they were in relationship to Háagen-Dazs’ ability to terminate petitioner as a distributor. Haagen-Dazs was certainly interested in acquiring those rights as it rationalized and consolidated its wholesale distribution network as one of the assets it was buying from Arnold and SIC. However, in light of the summary judgment by the District Court, Northern District of California, in favor of Háagen-Dazs against a similarly situated distributor, the value of those rights in the event of termination by Háagen-Dazs was highly speculative at best.
Shortly after issuance of Rev. Rui. 96-30, 1996-
Because the determination of the applicability of Commissioner v. Court Holding Co.,
Implicit in respondent’s Court Holding argument is the view that SIC’s ownership of the assets transferred to it by MIC and Arnold’s ownership of SIC stock were too transitory to be recognized for tax purposes. However, we need not grapple with the transitory nature of SIC and the tax consequences of such a designation on the transactions in the case at hand. Respondent acknowledges that if we decide that Court Holding does not apply to attribute the sale to petitioner, then the transaction should be regarded as a sec. 351 transfer from MIC to SIC, followed by a taxable redemption of Arnold’s shares in petitioner, thereby acknowledging the existence of SIC for Federal income tax purposes under respondent’s alternative argument. See infra pp. 218-220.
See Isenbergh, “Musings on Form and Substance in Taxation”, 49 U. Chi. L. Rev. 859, 871-874 (1982), for a discussion of the narrow and broad interpretations.
The Supreme Court noted in Central Tablet Manufacturing Co. v. United States,
There is some discussion in the above-cited cases concerning whether shareholders who are corporate officers or directors can negotiate a sale of assets in corporate solution on their own behalf, rather than on the corporation’s behalf, especially when the negotiations take place before the corporation resolves to liquidate the assets that are to be sold.
Although Commissioner v. Court Holding Co., supra, deals with corporations that distribute assets to their shareholders in complete liquidation, the Commissioner has recently applied its conduit theory to sec. 355 distributions. In Rev. Rui. 96-30, 1996 —
While Rev. Rui. 96-30, supra, indicates that a complete lack of negotiations before the spinoff will prevent the recasting of transactions under Court Holding, situations where there have been some, or even substantial, negotiations are not addressed. Nor does Rev. Rui. 96-30, supra, deal with a non-pro rata distribution such as a split-off, as in the case at hand.
Compare the ownership position of the single shareholder, which remained unchanged, in Idol v. Commissioner,
The corporation must also be in control of the corporation whose stock is being distributed immediately before the distribution. Sec. 355(a).
The proposed regulations were finalized by T.D. 8238, 1989-
The record is not clear whether petitioner received the stock of SIC on May 31, 1988, the date of its incorporation, or June 15, 1988, the effective date of the transfer of assets from petitioner to SIC. Because respondent acknowledges on brief that petitioner’s basis in SIC stock is determined under secs. 351 and 358, we treat the operative events as having occurred simultaneously.
Stock redemptions by S corporations are governed by the provisions of subch. C. Sec. 1371(a)(1); S. Rept. 100-445, at 66 (1988); see also Eustice & Kuntz, Federal Income Taxation of S Corporations, par. 8.02[l][a], at 8-24, par. 13.06[2], at 13-40 (3d ed. 1993).
Sec. 317(b) provides:
For purposes of this part, stock shall be treated as redeemed by a corporation if the corporation acquires its stock from a shareholder in exchange for property, whether or not the stock so acquired is cancelled, retired, or held as treasury stock.
The evidence in the record strongly supports Mr. Bergwerk’s opinion concerning petitioner’s market position and relative vulnerability to outside forces.
Mr. Bergwerk estimated the book value as $554,061 in the text of his report and $552,061 in the exhibit. The exhibit corresponded to the book net worth shown in the tax balance sheet in petitioner’s 1987 tax return.
Petitioner’s net income rose from $40,873, or 0.0081 percent of gross sales, in 1983, to $55,914, or 0.0066 percent of gross sales, in 1987.
Using the formula used in Bardahl Manufacturing Corp. v. Commissioner,
Respondent argues that petitioner, under the rule of Commissioner v. Danielson,
As we stated in Hospital Corp. of Am. v. Commissioner,
As we understand the Danielson rule, it is not applicable where the parties have not established the fair market value of the property at the time agreement is adopted because, under those circumstances, there is no agreement to which a party may be held. See Campbell v. United States, 228 Ct. Cl. [661,] 675-677 (1981); * * * see also Commissioner v. Danielson,
The allocation by the sale agreement of the $1,430,340 sale price paid by Háagen-Dazs to SIC and Arnold between “Sellers’ Rights”, $1,144,272, and the records, $286,068, is not an agreement made by petitioner as to the value of SIC stock. At best it is an ambiguous indication. Furthermore, because petitioner was not a party to the transaction with Háagen-Dazs, the Dan-ielson rule does not apply.
MIC cannot be held to an allocation that it did not bargain for with a party with opposing interests in an arm’s-length negotiation. Neither MIC, SIC, nor Arnold actively negotiated the allocation with Háagen-Dazs. It remained unchanged from the June 2 draft agreement through the closing of the sale on July 22. See Particelli v. Commissioner,
Petitioner reported an ordinary loss of $278 on its Form 1120S filed for the 1988 taxable year. Petitioner’s 1988 taxable income did not include any net operating loss deductions pursuant to sec. 172 nor any deduction for organization expenditures allowed by sec. 248.
We note the recent debate over the amendment to sec. 355 enacted in sec. 1012, of the Taxpayer Relief Act of 1997, Pub. L. 105-34, 111 Stat. 788, 914.
Under sec. 6664(c) of the current law, the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101 — 239, sec. 7721(a), 103 Stat. 2398, effective for returns with a due date after Dec. 31, 1989, the Commissioner no longer has this discretion, and no penalty may be imposed for understatements if the taxpayer can show that it had reasonable cause for the understatement and that it acted in good faith.