Webb Press Co. v. Commissioner

1925 BTA LEXIS 1998 | B.T.A. | 1925

Lead Opinion

OPINION.

MoRRis:

There are four questions involved in this appeal: (1) Whether or not the payments to Webb, as royalties in 1918 and 1919, were in fact a distribution of earnings and profits under the guise of royalties; (2) whether or not the sums of $288,137.36 and $283,487.98, the balance of royalties due Webb but retained in the business of the taxpayer, under the circumstances of this appeal, were invested capital for the years 1918 and 1919, respectively; (3) whether or not certain patterns and blue-prints had a value for invested capital purposes, and, if so, what was the value; and (4) whether or not the profit derived from the sale of a certain cotton compress, amounting to $3,814.99, was income for the year 1919 or the year 192'0.

As to the first question, the Commissioner contends that the payments of royalties in 1918 and 1919 were in fact a distribution of earnings and profits under the guise of royalties. He bases this contention upon the facts that R. D. Webb, the recipient, owned 494 out of the 500 shares, and that the royalty payments were two-thirds of the net profits which the said Webb received in addition to a salary of $12,000 per year and the regular dividends of the corporation. It appears from the evidence, however, that the royalty agreement was regularly made in the year 1911. The amount of royalties is substantially the same as determined to be a reasonable amount by the Supreme Court of Louisiana at a time when there was friction between the stockholders and the corporation and when the holdings of the Webbs were much less than at this time. The profits of the corporation were directly attributable to the use of the patents. Even this large percentage of profits paid as royalties was a profitable arrangement to the taxpayer corporation, irrespective of the ownership of the stock. We are of the opinion that it was a bona ;fide arrangement and reasonable when considered in connection with the history and development of the business of the taxpayer.

We shall now consider whether or not the Commissioner erred in not allowing the said sums of $288,137.36 and $283,487.98 as invested capital for the years 1918 and 1919, respectively. It appears that in 1911 the taxpayer passed a resolution definitely fixing the royalty basis for the past as well as the future. It was fixed at two-thirds of the net profits each year. At that time the accumulated net profits were approximately $525,000, of which Webb’s share was approximately $350,000. He did not withdraw this amount, but left it in the business as working capital. During subsequent years he withdrew as royalties two-thirds of the net profits for each year, encroaching somewhat upon the original $350,000 until, in the year 1918, the amount remaining was $288,137.38. He also withdrew two-thirds of the net profits in 1918 and, in addition, reduced the $288,-137.36 to $283,487.98 by January 1, 1919. It is these sums that the taxpayer contends were invested capital. There was no written agreement as to the status of this fund, but it seems to have been left there for the best interests of the company. Webb testified that he left it there as working capital and that he intended to charge no interest for the use of the money; neither did he intend it for an absolute gift. He stated that he meant to allow it to be subject to losses, if any, in preference to his own claims. Even after repeated questioning by counsel for the taxpayer, the members of the Board, and the counsel for the Commissioner, he was unable satisfactorily, to define the exact status of this balance. It is our opinion, after a careful analysis of his testimony, that he in fact really intended to leave in the business as much of this fund as was necessary to advantageously run the company and to withdraw it gradually as the business justified. This view seems to be borne out by the actual facts. In 1911 the amount was $350,000, by 1918 it had been reduced to $288,137.36, and by 1919 to $283,487.98, and later, in 1921, it was all withdrawn. During all this time Webb in fact considered it his individual money, subject to withdrawal at times convenient to the taxpayer corporation.

The taxpayer’s contention is based upon a misconception of the meaning of invested capital. While this fund may have been used as capital, nevertheless, it belonged to Webb and not to the corporation. It did not fall within the well-known classes of statutory invested capital. It was not cash or other assets paid in for stock; neither was it surplus or undivided profits.

Even were it a fact that the amount due Webb was subordinated to claims of general creditors and was a restricted indebtedness, this would not necessarily take it out of the class of borrowed capital, Appeal of I. Unterberg & Co., Inc., 2 B. T. A. 274; nor would the fact that no interest was charged change the character of the fund to invested capital. Appeal of Kelly-Buckley Co., 1 B. T. A. 1154. It is clear to our minds that these sums were not invested capital.

The taxpayer claims additional invested capital for certain patterns, blue-prints, tracings, etc. In support of this claim the taxpayer has presented a long detailed list of patterns upon which it placed a value of $86,834. In its amended petition it places the value at $75,000, and in its original returns for 1918 and 1919 it had placed the value at $15,000. The taxpayer seems to have kept no account of these patterns upon its books, nor had it capitalized them in prior returns. We are satisfied from the evidence that these patterns did have a substantial value and could be capitalized for invested capital purposes were it possible to fix the value. The taxpayer has presented no books or other evidence to show how or in what way it arrived at the valuation submitted. It was vaguely stated that the values were an allocated portion of the salaries paid E. D. Webb and S. J. Webb, who had spent much time and labor upon them while in the employ of the taxpayer since 1896. However disposed we are to allow invested capital for those items, we are unable to do so from the data and evidence submitted.

The last issue involves the proper allocation of $3,814.99, income received from the sale of a certain compress to the Jacksonville Compress Co. The question is whether the income should be returned as of 1919 or 1920. The contract for the sale of the cotton compress reserved the title' in the taxpayer, provided for substantial cash payments, and made provision for payments by notes after a test and acceptance by the purchaser. The contract in question was entered into June 28, 1919. The total purchase price was $32,000, of which $15,000 had been paid in various amounts in the year 1919. The contract provided for a test and acceptance within 30 days after the installation of the compress. It was installed in October, 1919, but, through some cause or other, the test and acceptance were delayed until January, 1920.. On January 26, 1920, there was an acceptance, the purchaser executed notes for $11,000, the balance of the purchase price, and at the same time executed a trust on the land and compress to secure the notes. The Commissioner contends that the sale was consummated in 1919 and that the 1920 transactions involved only the payment of the money. The taxpayer claims that the sale was contingent upon the test and acceptance in January, 1920. This latter view, we think, should prevail under the circumstances of this case. Surely, the transaction was not completed until the cotton compress was tested and the acceptance made by the purchaser. This is borne out by the fact that the notes and securities for the balance of the purchase price were not executed until January 26, 1920. If the compress did not meet the test or was not accepted, this would clearly mean delay or a loss. At any rate, a profit could not be computed until the final acceptance. The income from this transaction, in our opinion, should be allocated to the year 1920. The test was a condition precedent and not a condition subsequent, the transaction was not a closed one until after January 1, 1920, and hence the income arising therefrom could not have accrued before that date.