Berghash v. Commissioner

*743 The respondent determined deficiencies in petitioners' income tax for the years and in the amounts as follows:

The *119 issues presented for our decision relate to the correctness of the respondent's action in determining (1) that petitioner Hyman H. Berghash received ordinary income in the form of a dividend in the amount of $ 122,050.11 and long-term capital gain in the amount of $ 21,153.24 as distributions from the Delavan-Bailey Drug Co., Inc., during 1957; and (2) that, in the alternative, petitioner Delavan-Bailey Drug Co., Inc., received recognized long-term capital gain resulting from the disposition of certain assets during the taxable period January 1, 1957, through February 28, 1957.

FINDINGS OF FACT

A portion of the facts have been stipulated and are so found.

Petitioners Hyman H. and Rose Berghash are husband and wife residing in Buffalo, N.Y. They filed their joint income tax return for 1957 with the district director of internal revenue at Buffalo.

*744 Petitioner Delavan-Bailey Drug Co., Inc. (sometimes hereinafter referred to as the old corporation or the predecessor corporation), is a dissolved corporation that originally was incorporated under the laws of the State of New York on July 31, 1933. From the time of its incorporation until January 29, 1957, Delavan-Bailey Drug Co., Inc., owned *120 and operated a retail drugstore located in Buffalo, N.Y.

Throughout its corporate existence the outstanding stock of Delavan-Bailey consisted of 200 shares of common stock which were held as follows:

In 1952 Sidney Lettman (sometimes hereinafter referred to as Lettman), a pharmacist, proposed to Hyman Berghash that they establish a new drugstore in a prospective shopping center in Buffalo, with 50 percent of the stock to be owned by each of them.

Lettman and Berghash at no time have been related in any way.

After further conversations, Berghash and Lettman entered into a contract dated October 20, 1952, for the establishment of a retail drugstore in the proposed shopping center to be known as Seneca Shopping Plaza in Buffalo.

The contract dated October 20, 1952, provided that a corporation should be formed to engage in the retail drugstore business and that each of the parties would invest $ 2,500 in the new corporation and each would own 50 percent of the stock thereof. The contract also provided that the parties were entering into a lease for a store in the Seneca Shopping Plaza and would assign the lease to the corporation *121 to be formed. It was further agreed that Lettman would be employed as manager of the store at a stated salary, that Berghash would be employed as the president of the corporation and would be in charge of its books at a stated salary. The parties each agreed to deposit $ 10,000 immediately in a bank account to be turned over to the corporation to be used partly for equity capital and partly for loans to be made to it by Lettman and Berghash or, in the case of default by one of the parties, the deposit was to be retained by the other party as liquidated damages.

Pursuant to the contract dated October 20, 1952, Berghash and Lettman caused the incorporation on November 24, 1952, of a New York corporation known as Dorn's Drugs, Inc. (sometimes hereinafter referred to as Dorn's or the survivor or successor corporation).

Under date of December 5, 1952, Dorn's entered into a lease with Seneca Shopping Plaza, Inc., for the rental of a store in the proposed Seneca Shopping Plaza.

*745 The promoters of the proposed Seneca Shopping Plaza encountered various difficulties in its attempted establishment and finally abandoned the entire project in 1955.

Because the Seneca Shopping Plaza project never became *122 effective, no capital was ever paid into Dorn's and no capital stock was issued by it until the transactions hereinafter described in 1957. Dorn's remained in existence as an inactive corporation from its incorporation to January 29, 1957.

Lettman was employed as a pharmacist by Delavan-Bailey on August 3, 1953. Early in 1954 Lettman became the manager of the Delavan-Bailey drugstore and was continuously employed as its manager until the discontinuance of business by that corporation in 1957.

After the abandonment of the Seneca Shopping Plaza project in 1955, Berghash and Lettman attempted to find another drugstore in which they would be equal owners. They examined several possibilities including locations for new stores as well as established stores to purchase but they were unsuccessful. In the latter part of 1956 Lettman decided that he should look for a drugstore on a smaller scale for himself and he examined one possible location. Prior to this time Lettman had asked Berghash if he could purchase an interest in the business of Delavan-Bailey, but Berghash had refused.

In December 1956, Lettman told Berghash that he had made up his mind to strike out on his own, described the *123 property he had been looking at, and told Berghash that unless he would sell him 50 percent of Delavan-Bailey, he would leave its employ as manager.

Subsequently Berghash told Lettman that he was willing to sell him a 50-percent interest in the business of Delavan-Bailey. Thereafter the parties reached agreement as to the worth of the Delavan-Bailey assets and the amount Lettman would pay for a 50-percent interest.

The agreement of Berghash and Lettman as to the price of the Delavan-Bailey assets was based upon the taking of an inventory, the valuation of goodwill at the approximate amount of the net profit of the business for the previous year, and the valuation of the store fixtures at their estimated replacement cost.

The amount of investment by Lettman for a 50-percent interest in the business agreed upon between Berghash and Lettman was $ 25,000. This amount was the maximum amount Lettman felt he was able to raise from savings and borrowings.

Berghash's reason for agreeing in December 1956 to sell a half interest in the Delavan-Bailey business to Lettman was because he felt he could not afford to lose Lettman.

After the parties had reached an agreement Berghash consulted his accountants *124 and lawyer who formulated the method for carrying *746 out the agreement and prepared a written contract. Berghash had not previously consulted his accountants or lawyer before reaching the agreement with Lettman.

On December 30, 1956, the stockholders of Delavan-Bailey adopted a plan of complete liquidation. The plan provided that all of the assets of the corporation should be distributed in complete liquidation within a 12-month period and that the corporation should be dissolved within such period. The board of directors and officers were authorized to file a certificate of dissolution and, after providing for the liabilities of the corporation, to distribute the remainder of its assets to its stockholders.

On January 29, 1957, Berghash and Lettman entered into a written contract which provided that Delavan-Bailey should forthwith sell to Dorn's its inventory, goodwill, and fixtures. Dorn's was to pay $ 30,518.59 for the fixtures, $ 20,000 for the goodwill, and for the inventory at the actual wholesale cost thereof as determined by an inventory made on December 31, 1956. Lettman agreed to purchase 100 shares of the common stock of Dorn's and to pay to that corporation $ 25,000 therefor *125 in cash. Delavan-Bailey agreed to purchase the remaining 100 shares of the common stock of Dorn's for $ 25,000, the payment to be made by deducting that amount from the price of the assets purchased by Dorn's. Dorn's was to execute a negotiable promissory note for the balance of the purchase price of the assets. Dorn's was also required to change its name to Delavan-Bailey Drug Co., Inc., and the old company was to be liquidated and dissolved. It was further agreed that Lettman should be employed by Dorn's as manager of its pharmacy at a stated salary and that Berghash should be employed to conduct its bookkeeping and other records at a stated salary. The agreement also provided that if Berghash should become dissatisfied for any reason with the services of Lettman as manager or with his continuance as a stockholder, officer, or director, Berghash would have the right to purchase the stock of Lettman in Dorn's for a price to be determined according to a formula specified in the contract.

Pursuant to the contract executed January 29, 1957, Lettman paid to Dorn's $ 25,000 cash on January 30, 1957, in payment for 100 shares of the common stock of Dorn's, which thereafter issued the *126 shares to him.

The balance sheet of Delavan-Bailey Drug Co., Inc., as of January 29, 1957, prior to the consummation of the sale contemplated by the contract executed on that date by Berghash and Lettman, was as follows: *747

On January 29, 1957, Delavan-Bailey sold its fixtures to Dorn's for $ 30,518.59, its goodwill for $ 20,000, and its inventory for $ 70,583.05. Dorn's paid Delavan-Bailey for such fixtures, inventory, and goodwill by delivering its negotiable promissory note dated January 29, 1957, payable to the old corporation in the principal amount of $ 96,101.64 and by thereafter issuing to Delavan-Bailey 100 shares of its common stock for $ 25,000 registered in the name of Berghash. The note issued by Dorn's was payable at the rate of $ 1,000 per month and bore interest at the rate of 6 percent on the unpaid balance. The indebtedness *127 represented thereby was a valid indebtedness.

The adjusted book basis for determining gain or loss to Delavan-Bailey of the assets sold by it to Dorn's as of the date of their sale was as follows: Inventory -- $ 70,583.05; fixtures -- $ 4,300.35; goodwill -- zero.

Between January 29, 1957, and May 5, 1957, Delavan-Bailey distributed all of its remaining assets to Berghash in complete liquidation. Delavan-Bailey distributed in liquidation to Berghash and Berghash so received the 100 shares of the common stock of the corporation known as Dorn's, its promissory note in the principal amount of $ 96,101.64, and cash in the total amount of $ 49,313.17. The adjusted basis of the petitioners in the capital stock of Delavan-Bailey on the date of its liquidation was $ 2,211.46. The accumulated earnings and profits of Delavan-Bailey at the date of its liquidation and the distribution of its assets to Berghash were $ 122,050.11.

Delavan-Bailey was dissolved by the filing of a certificate of dissolution with the Secretary of State of New York on April 23, 1957.

By certificate executed on February 4, 1957, and thereafter filed with the Secretary of State of New York the corporate name of Dorn's was *128 *748 changed to Delavan-Bailey Drug Co., Inc., and this has since continued to be its corporate name.

At all times from January 29, 1957, to the present time, the corporation originally known as Dorn's and thereafter known as Delavan-Bailey Drug Co., Inc., has carried on the retail drug business theretofore carried on by the old corporation. The drug business was operated by Dorn's without change from the previous operation except that Lettman was a 50-percent owner instead of only a manager.

At all times since January 29, 1957, Berghash and Lettman have each continued to own 100 shares of the common stock of Dorn's and such 200 shares of common stock have constituted all of its issued and outstanding capital stock.

Since January 29, 1957, Lettman has continued his employment as manager of Dorn's.

Berghash has not been dissatisfied with Lettman's services as manager or his continuation as a stockholder, officer, or director of Dorn's, and at no time since January 29, 1957, has he expressed to Lettman any such dissatisfaction.

On their joint income tax return for 1957, Hyman and Rose Berghash reported the gain on the liquidation of Delavan-Bailey as long-term capital gain with gross proceeds *129 of $ 170,414.81, a cost basis of $ 2,211.46, and capital gain of $ 168,203.35.

In his notice of deficiency the respondent determined that as a result of the withdrawal of corporate assets from Delavan-Bailey, petitioners Hyman and Rose Berghash realized dividend income in the amount of $ 122,050.11, plus long-term capital gain of $ 48,364.70.

Delavan-Bailey Drug Co., Inc., on its income tax return for the taxable period beginning January 1, 1957, and ending February 28, 1957, reported a long-term capital gain on the sale of its fixtures and goodwill totaling $ 46,218.24 but claimed that such gain was not recognized because of the applicability of section 337 of the Internal Revenue Code of 1954. Accordingly it did not include any portion of such gain in its taxable income for that period.

In his deficiency notice the respondent determined that long-term capital gain in the amount of $ 46,218.24 must be included in petitioner's income for the period January 1, 1957, to February 28, 1957.

OPINION

The respondent's principal contention is that the net result of the transaction in question is the distribution of dividend income by the Delavan-Bailey Drug Co., Inc., to the extent of its current *130 and accumulated earnings and profits in the amount of $ 122,050.11 as a dividend to Hyman Berghash. The respondent has determined that the *749 balance of the distribution, less the basis of Berghash in the stock of Delavan-Bailey, constitutes long-term capital gain.

The respondent claims, in the alternative, that in the event we are unable to sustain his principal contention, the liquidating distributions made by Delavan-Bailey Drug Co., Inc., between January 29, 1957, and May 5, 1957, did not constitute a bona fide liquidation of that corporation within the meaning of section 337 of the Code.

The petitioners contend that the series of steps heretofore described in our Findings of Fact amounted to a complete liquidation of the old corporation within the meaning of section 337 of the 1954 Code and that the distributions by Delavan-Bailey on January 29, 1957, are taxable to Hyman and Rose Berghash as long-term capital gain under sections 346(a)(1) and 331(a)(2).

In support of his principal contention that the distribution to Hyman Berghash constituted a dividend distribution, the respondent argues (1) that the transaction was totally lacking in economic substance, and (2), in the alternative, *131 that the consummation of the contract executed by Lettman and Berghash resulted in a nontaxable reorganization within the meaning of section 368(a)(1) of the Code.

With respect to the respondent's argument that the events which took place on or about January 29, 1957, pursuant to the agreement executed by Lettman and Berghash, were sham transactions, it is not entirely clear from the Commissioner's brief whether he is contending that the whole undertaking was lacking in economic substance or that only one step in the overall arrangement constituted a sham.

Nevertheless, in any case, where it is apparent that the corporate entity utilized by the parties to a given transaction is a sham corporation or that the transaction in question otherwise was without economic substance, we are not reluctant to disregard the formalities employed and to reach a result dictated by the substance thereof. Knetsch v. United States, 364 U.S. 361; Higgins v. Smith, 308 U.S. 473; Joseph H. Bridges, 39 T.C. 1064, affd. 325 F. 2d 180; Jackson v. Commissioner, 233 F. 2d 289, affirming 24 T.C. 1.

We are convinced from the record that the transaction here under attack was bona fide in every respect, was motivated *132 by business considerations, and that any purpose to minimize income tax liability, if present at all, played only a minor role. From the time when Lettman first contacted Berghash in 1952 it was their purpose and desire to undertake a new venture in the retail drug field on an equal 50-50 basis. Failing in this endeavor, first because of the failure of the Seneca Shopping Plaza project, and later because of the inability of either party to find either a suitable location for the establishment of a new store or an opportunity to purchase an existing store as equal *750 owners, Lettman finally informed Berghash in 1956 that he intended to leave his position as manager of Delavan-Bailey Drug Co., Inc., and to strike out on his own in a new venture. Lettman informed Berghash that he would only be willing to remain as manager of Delavan-Bailey Drug Co., Inc., if it were possible for him to acquire a 50-percent ownership interest therein. Berghash valued Lettman's ability as manager of the Delavan-Bailey store and finally agreed to sell him a one-half interest in that corporation in order to retain his services.

Lettman and Berghash agreed on the value of the Delavan-Bailey Drug Co., Inc., *133 which on January 29, 1957, had total assets valued at $ 139,959.87 (plus goodwill valued at $ 20,000 which did not appear on the balance sheet) and a balance sheet net worth of $ 124,809.21. Lettman informed Berghash that the very maximum he would be able to afford to invest in a drugstore was $ 25,000. With such a limited amount of capital, Lettman would have been able to purchase not more than one-fifth of the outstanding stock of the Delavan-Bailey Drug Co., Inc., from Hyman Berghash. Because of the disparity between Lettman's capital of $ 25,000 and the value of one-half the balance sheet net worth of Delavan-Bailey Drug Co., Inc., which was approximately $ 62,400, the parties decided to activate Dorn's Drugs, Inc., which had remained in existence as a dormant corporation since 1952 and which had been created for the purpose of owning and operating a new drugstore in the proposed Seneca Shopping Plaza.

Consequently Dorn's Drugs, Inc., agreed to purchase certain operating assets from Delavan-Bailey Drug Co., Inc., in return for a promissory note and one-half the outstanding capital stock of Dorn's. On the day following this transfer of assets, in exchange for 100 shares of stock *134 and a note issued by Dorn's, Lettman purchased the remaining 100 shares of the authorized stock of the new corporation for $ 25,000 and the old corporation subsequently was completely liquidated. Berghash received the note and one-half the stock of Dorn's Drugs, Inc., as a liquidating distribution from Delavan-Bailey Drug Co., Inc.

Because of the fact that the initial discussions in 1956 related to the possibility of a purchase by Lettman of one-half the stock of Delavan-Bailey, the respondent claims that the real effect of the transaction in question was a sale by Berghash of one-half of his stock in the old corporation to Lettman, and that the transfer of assets by the predecessor corporation to Dorn's Drugs, Inc., should be disregarded as a sham sale. However, because of Lettman's limited capital, it would have been impossible, as pointed out above, for the parties to have carried out their purpose of investing in the store on a 50-50 basis through a sale by Berghash of half the outstanding stock of Delavan-Bailey. *751 Although it may have been possible to have arranged the same result by causing the old corporation to redeem a portion of Berghash's stock, followed by the issuance *135 of additional shares of Delavan-Bailey to Lettman, this is not what the parties actually did. So long as the transaction was genuine, petitioners had every right to select any method they preferred of achieving a desired result regardless of the tax consequences flowing therefrom. United States v. Cumberland Pub. Serv. Co., 338 U.S. 451; Woodworth v. Commissioner, 218 F. 2d 719, affirming a Memorandum Opinion of this Court; Zenz v. Quinlivan, 213 F. 2d 914. The note issued by Dorn's Drugs, Inc., was a negotiable promissory note payable at the rate of $ 1,000 per month, bearing interest at the rate of 6 percent on the unpaid balance, and we find that the debt represented thereby was a valid indebtedness.

Inasmuch as both Delavan-Bailey Drug Co., Inc., and Dorn's Drugs, Inc., were formed for the purpose of conducting business activity and actually engaged in the business of operating a retail drugstore, neither corporation can be regarded as a sham entity. Moline Properties v. Commissioner, 319 U.S. 436.

It accordingly appears to us that there were excellent business reasons underlying the arrangement agreed upon by Berghash and Lettman, and we are convinced by the record that each *136 of the steps involved possessed economic substance and that no part of the transaction or the net result thereof properly can be viewed as a sham.

The respondent next contends that the transaction in question amounted to a nontaxable reorganization under section 368(a)(1) of the Code. If the transaction can be fitted into one of the definitions of a tax-deferred reorganization specified in section 368(a)(1), section 356(a)(2) ^1*137 could be brought into operation in the event the distributions to Hyman Berghash were found to be equivalent to a dividend. See Kirschenbaum v. Commissioner, 155 F. 2d 23; Hawkinson v. Commissioner, 235 F. 2d 747, affirming 23 T.C. 933; Idaho Power Co. v. United States, 161 F. Supp. 807; John G. Moffatt, 42 T.C. 558; Walter S. Heller, 2 T.C. 371, affd. 147 F. 2d 376, certiorari denied 325 U.S. 868; James Armour, Inc., 43 T.C. 295; South Texas Rice Warehouse Co., 43 T.C. 540.

*752 The respondent first asserts that the arrangement in question amounted to a nontaxable reorganization under section 368(a)(1)(F) of the Code. ² Section 368(a)(1) describes six types of transactions, of which subparagraph (F) is the sixth, that qualify as tax-free reorganizations. Subparagraph (F) specifies "a mere change in identity, form, or place of organization, however effected.

Although the exact function and scope of the (F) reorganization in the scheme of tax-deferred transactions described in section 368(a)(1) have never been clearly defined, it is apparent from the language of subparagraph (F) that it is distinguishable *138 from the five preceding types of reorganizations as encompassing only the simplest and least significant of corporate changes. The (F)-type reorganization presumes that the surviving corporation is the same corporation as the predecessor in every respect, except for minor or technical differences. Ahles Realty Corp. v. Commissioner, 71 F. 2d 150, affirming an order of this Court. For instance, the (F) reorganization typically has been understood to comprehend only such insignificant modifications as the reincorporation of the same corporate business with the same assets and the same stockholders surviving under a new charter either in the same ³ or in a different State, ^4*139 the renewal of a corporate charter having a limited life, ⁵ or the conversion of a U.S.-chartered savings and loan association to a State-chartered institution. ⁶

The decisions involving subparagraph (F) or its counterpart in prior revenue acts consistently have imposed at least one major limitation on transactions that have been claimed to qualify thereunder: if a change in stock ownership or a shift in proprietary interest occurs, the transaction will fail to qualify as an (F) reorganization. Helvering v. Southwest Corp., 315 U.S. 194, affirming 119 F. 2d 561, affirming a Memorandum Opinion of this Court.

Helvering v. Southwest Corp., supra, involved a bankruptcy reorganization of the old transferor corporation. Upon completion of the plan of reorganization only 33 percent of the common shareholders of *753 the bankrupt corporation wound up owning common stock in the surviving corporation. Sixty-seven percent of the transferor's shareholders apparently dropped out. Only 53 percent of the preferred shareholders of the old corporation *140 acquired preferred stock in the new corporation. In denying the taxpayer's contention that the transaction there in question amounted to a nontaxable reorganization the Supreme Court stated:

and a transaction which shifts the ownership of the proprietary interest in a corporation is hardly "a mere change in identity, form, or place of organization" within the meaning of clause (E).

In Stollberg Hardware Co., 46 B.T.A. 788, a bankruptcy reorganization, in which the former shareholders of the bankrupt corporation acquired only approximately 27 percent of the stock of the survivor, was held not to qualify as "a mere change in identity, form, or place of organization" because of the shift in proprietary interest.

A much less significant change in stock ownership occurred in Cushman Motor Works v. Commissioner, 130 F. 2d 977, affirming 44 B.T.A. 1288, wherein more than 80 percent of the stockholders of the transferor corporation subscribed for stock in the new corporation and retained their proprietary interests therein. The change in stock ownership resulting from the retirement of less than 20 percent of the shareholders of the predecessor corporation was held to be so substantial as to *141 disqualify the transaction from the tax-free treatment accorded by the predecessor to subparagraph (F) under the Revenue Act of 1934.

In Joseph C. Gallagher, 39 T.C. 144, the owners of approximately 62 percent of the stock of the old corporation acquired stock in the successor, whereas the owners of approximately 38 percent of the stock of the predecessor corporation retired. The continuing shareholders acquired approximately 73 percent of the stock of the new corporation, the balance being subscribed by new investors who were key employees of the predecessor. The change in stock ownership on the part of the former owners of the old corporation was held to be too significant a shift in proprietary interest to constitute an (F) reorganization.

The respondent places considerable reliance on our recent decision in Pridemark, Inc., 42 T.C. 510, on appeal (C.A. 4, Sept. 23, 1964). There three corporations that were controlled by the same individual were engaged in the business of selling prefabricated houses. Two were liquidated ⁷ and distributions of cash and other property were made to its stockholders. Just prior to liquidation a new corporation was formed, the stock of which was issued *142 to the same individual *754 who had previously controlled the predecessor corporations. Subsequently he contributed to the new corporation a portion of the cash which had been distributed to him in liquidation. He also contributed a lease on certain office premises, together with a trade name "Pridemark" and a business slogan, to the new corporation. The successor corporation continued to operate the same business as its predecessors had conducted and in the same location under the same name.

We there held that the transaction qualified as "a 'mere change in identity, form, or place of organization.'"

Although the fact that the successor corporation in Pridemark, Inc., supra, conducted the same business, in the same location, and under the same name as had been conducted by its predecessors is parallel to the situation presented here, we do not understand that decision to hold that an (F)-type reorganization properly encompasses a shift in the proprietary interest of the owners of *143 the transferor corporation. We there pointed out in our opinion that the same individual held voting control over both the predecessor corporations and th