Fehrs Finance Co. v. Commissioner

*175 The respondent has determined*145 a deficiency of $ 32,459.07 in the petitioner's Federal income tax for the year ended November 30, 1965. In a transaction which we conclude was a redemption under section 304(a)(1) of the Internal Revenue Code of 1954, ¹ the petitioner acquired stock in exchange for a promise to pay two annuities, and immediately thereafter it sold such stock prior to making any annuity payments. To determine the petitioner's basis in such stock, we must decide whether the redemption was essentially equivalent to a dividend under section 302(b)(1), whether the transferors of the stock completely terminated their interest in the corporation within the meaning of section 302(b)(3), and how much gain, if any, was recognized by the transferors on the transfer within the meaning of section 362(a).

FINDINGS OF FACT

Some of the facts have been stipulated, and those facts are so found.

The petitioner, Fehrs Finance Co., is a Nebraska corporation*146 which had its principal place of business at Omaha, Nebr., when the petition was filed in this case. It filed its Federal income tax return for the taxable year ended November 30, 1965, using the cash method of accounting, with the district director of internal revenue, Omaha, Nebr.

Fehrs Rental Co. (Rental) ² is a corporation which was incorporated in Nebraska in 1954, primarily to rent, lease, sell, and repair road and *176 industrial construction equipment. Prior to December 21, 1964, Edward J. Fehrs owned 1,223 of the 1,380 outstanding shares of Rental, and his wife, Violette E. Fehrs, owned the remaining 157.

On December 21, 1964, Mr. Fehrs*147 gave a total of 130 shares of Rental to certain of his relatives, as follows: 10 to Mrs. Fehrs; 15 to his son-in-law, William R. Vlcek; 15 to his daughter, Mary Jane Vlcek; 10 each to his 3 grandchildren, William Vlcek, Jr., Linda Vlcek, and Sharon Vlcek; and 60 to his daughter, Elizabeth Fehrs May. On January 11, 1965, he gave an additional 111 shares of Rental to such relatives, as follows: 10 to Mrs. Fehrs; 10 to Mr. Vlcek; 11 to Mrs. Vlcek; 10 each to the same 3 grandchildren; and 50 to Mrs. May. After such gifts were made, Mr. Fehrs owned 982 shares of Rental, Mrs. Fehrs owned 177, and 221 shares were owned by his son-in-law, his daughters, and his grandchildren.

On February 28, 1965, the petitioner was incorporated in Nebraska. Its principal business has been the acquisition of commercial paper generated by sales of construction equipment by Rental. Upon its organization, the petitioner issued 19 shares of capital stock at $ 100 each. Ten of such shares were subscribed to and paid for at par value by Mrs. May, and nine of such shares were subscribed to and paid for at par value by Mrs. Vlcek. Neither Mr. Fehrs nor Mrs. Fehrs has ever been a shareholder, officer, director, *148 or employee of the petitioner.

On March 1, 1965, Mr. and Mrs. Fehrs transferred their remaining shares in Rental to the petitioner. On that date, their basis in the stock of Rental was zero. In return for the 982 shares it acquired from Mr. Fehrs, the petitioner promised to pay him the amount of $ 62,000 per year, payable $ 15,500 quarterly, beginning January 1, 1966, and continuing for the remainder of his life. In return for the 177 shares it acquired from Mrs. Fehrs, the petitioner promised to pay her the amount of $ 8,000 per year, payable $ 2,000 quarterly, beginning January 1, 1966, and continuing for the remainder of her life. The agreements by which the petitioner agreed to make such payments to Mr. and Mrs. Fehrs (the annuity agreements) were authorized by the petitioner's board of directors at its first meeting on March 1, 1965, and such agreements were signed by Mr. Vlcek in his capacity as the petitioner's president, to which position he had been elected at that meeting.

Later, on March 1, 1965, there was a special meeting of the board of directors of Rental, at which Mr. Fehrs resigned as president and as a director. The minutes of such meeting indicated that Mr. *149 Fehrs "had reached retirement age and had decided to terminate his relationship with the corporation." Since such time, Mr. Fehrs has been *177 retired, and neither he nor Mrs. Fehrs has been a shareholder, officer, director, or employee of Rental. Also at such meeting, Mrs. Vlcek was elected to fill Mr. Fehrs' unexpired term on the board, and Mr. Vlcek was elected to succeed Mr. Fehrs as president.

The annuity agreement pertaining to Mr. Fehrs contained substantially the same terms as that pertaining to Mrs. Fehrs. The annuity agreements provided that if the petitioner defaulted in making any payment due thereunder, and the default continued for 30 days, the "entire commuted value of the annuity" would be immediately due and payable, "such commuted value to be computed in accordance with standard actuarial tables and values taking into account the age of the annuitant as of the date of default." Such default provision could be waived in writing by the annuitant. The annuity agreements provided further that neither such agreements nor the payments to be made thereunder could be negotiated, assigned, or anticipated by the annuitants, and that the petitioner would have no obligation*150 to recognize or give effect to any such purported negotiation, assignment, or anticipation.

Mr. Fehrs was born on December 5, 1894, and Mrs. Fehrs was born on July 9, 1900. If the petitioner desired, in 1965, to purchase commercial annuities for Mr. and Mrs. Fehrs to discharge all of its liabilities to them under the annuity agreements, such commercial annuities would have cost the petitioner approximately $ 550,000 for Mr. Fehrs, and approximately $ 105,000 for Mrs. Fehrs, or a total of approximately $ 655,000. On the books and records of the petitioner, and on its corporate income tax return for the taxable year ended November 30, 1965, the obligation to Mr. and Mrs. Fehrs was reflected as a liability as of March 1, 1965, in the total amount of $ 725,000.

On March 1, 1965, the same day on which it acquired the 1,159 shares of Rental from Mr. and Mrs. Fehrs, the petitioner and Rental executed a document entitled "Redemption Agreement." Pursuant to the terms of such document, the petitioner transferred to Rental the 1,159 shares of such corporation. In exchange for such stock, Rental transferred to the petitioner the sum of $ 100,000 in cash, and an unsecured negotiable promissory*151 note of Rental in the principal sum of $ 625,000. The note provided for annual payments of principal and interest. Each principal payment was set at 5 percent of the original principal or 25 percent of Rental's annual net income after Federal income taxes, whichever was greater; the interest rate was 7 percent per annum. The annual payments were to be made on January 2 of each year, commencing with 1966.

*178 On the books and records of the petitioner, the $ 625,000 note of Rental was treated as a contract receivable. On its Federal corporate income tax return for the taxable year ended November 30, 1965, such note was included in the category of notes and accounts receivable.

The 1,159 shares of Rental which it acquired from the petitioner were canceled on April 16, 1965, pursuant to a resolution adopted by Rental's board of directors. After such cancellation, 221 shares of Rental remained outstanding, and those shares were owned by Mr. and Mrs. Fehrs' daughter, son-in-law, and grandchildren, as a result of the gifts by Mr. Fehrs in 1964 and 1965.

Rental's Federal income tax return for the taxable year ended September 30, 1964, shows that its earned surplus and undivided*152 profits at the close of such year amounted to $ 1,229,103.78. Its return for the taxable year ended September 30, 1965, shows that its earned surplus and undivided profits would have amounted to $ 1,410,149.20 at the close of that year, but for the "reduction of capital" in the amount of $ 609,100 during the year. It paid no dividends to its shareholders from the time of its incorporation until January 2, 1966.

Except for its ownership of the 1,159 shares as described, the petitioner has never owned any stock of Rental; and Rental has never owned any stock of the petitioner.

In December 1965, Rental was advised that the petitioner had requested a prepayment to the extent of $ 300,000 with respect to the principal amount owed by Rental to the petitioner pursuant to the redemption agreement. The petitioner agreed, in consideration of such prepayment, to waive any interest due and owing on the balance of the principal sum for a 5-year period from December 1, 1965. On December 27, 1965, Rental made the prepayment of $ 300,000 to the petitioner on those terms. Subsequently, Rental made further payments of principal to the petitioner as follows: $ 41,122 on January 3, 1966; $ 35,560.16*153 on January 11, 1967; and $ 31,250 on December 14, 1967.

At an annual meeting of the petitioner's board of directors on December 27, 1965, the directors discussed in detail a copy of a preliminary profit-and-loss statement for the year ended November 30, 1965. After the discussion, the directors declared a dividend at the rate of $ 4,000 per share payable January 2, 1966, to the shareholders of record on November 30, 1965. During the calendar years 1966, 1967, and 1968, the petitioner paid dividends in the total respective amounts of $ 76,000, $ 38,000, and $ 38,000 to its shareholders; such amounts were paid ten-nineteenths to Mrs. May and nine-nineteenths to Mrs. Vlcek. After treating the dividends paid in 1966 as recoveries of their bases to the extent applicable, both of them treated the dividends as long-term *179 capital gains in their own Federal income tax returns for 1966 and 1967, and Mrs. Vlcek, at least, did the same for 1968.

The petitioner's books and Federal income tax returns showed increased deficits in the category of earned surplus and retained earnings, as follows:

Such figures were based on the assumptions that none of the amounts received from Rental on account of the stock transfer constituted gain which should be reflected in the petitioner's earnings and profits, and that all of the distributions made by the petitioner to its shareholders when the corporation apparently lacked earnings and profits should serve to increase the deficit balance in the earned surplus and retained earnings account.

The district director of internal revenue, Omaha, Nebr., determined deficiencies in the gift taxes of both Mr. and Mrs. Fehrs for the year 1965, in the amounts of $ 28,700.42 and $ 22,214.94, respectively. Such deficiencies were based on the following computations by him: That on March 1, 1965, the stock of Rental was worth $ 700 per share; that the total values of the stock transferred by Mr. and Mrs. Fehrs respectively were $ 687,400 and $ 123,900; that the actuarial*155 values of the annuities received by Mr. and Mrs. Fehrs respectively were $ 474,319.76 and $ 78,054.08; and that the differences between the values of the stock and the annuities constituted gifts to the shareholders of the petitioner by Mr. and Mrs. Fehrs in the respective amounts of $ 213,080.24 and $ 45,845.92.

Mr. and Mrs. Fehrs paid the gift tax deficiencies in the amounts determined by the district director, and on April 14, 1969, they each filed a claim on Form 843 for the refund of the gift taxes paid pursuant to the deficiency determinations, in addition to other gift taxes which they paid along with returns filed on April 15, 1966, plus interest. In such claims, the Fehrses alleged that the respondent erred in concluding that a gift resulted from the exchange of Rental stock for the annuity.

In 1966, 1967, and 1968, Mr. and Mrs. Fehrs received their annuity payments from the petitioner as called for by the annuity agreements. In their joint Federal income tax returns for 1966 and 1967, *180 Mr. and Mrs. Fehrs reported the annuity payments in the following manner:

*156 Mr. and Mrs. Fehrs' joint Federal income tax return for 1966 was examined by the respondent. A report of the examination, mailed to Mr. and Mrs. Fehrs on March 13, 1968, proposed adjustments resulting in a deficiency in income tax. The principal reason for such adjustments was the determination that the $ 70,000 in annuity payments received by the Fehrses in 1966 actually represented a "distribution essentially equivalent to a dividend," and that such payments should therefore be taxed as ordinary income, not as capital gain and annuity income. The report termed the 1965 transaction in which the stock was exchanged for the annuities as a "sham," and alleged that the dividend came from a "source other than the annuity." Mr. and Mrs. Fehrs executed a waiver of the restrictions on assessment and collection of the deficiency, and thereafter, they paid the deficiency and interest thereon. On June 30, 1969, Mr. and Mrs. Fehrs filed a claim for refund of the amount of such deficiency and interest; they alleged that the district director "erred in his determination that the taxpayers received 'dividend income (redemption of capital stock) $ 70,000' during the taxable year [1966]."

The*157 gifts of his stock in Rental that Mr. Fehrs made to his wife, daughters, son-in-law, and grandchildren in December 1964 and January 1965 were made upon the advice of counsel; the amounts of such gifts were also determined upon the advice of counsel. At the time such gifts were made, Mr. Fehrs anticipated that he would retire from business in March 1965. He and his wife were concerned about their having sufficient income to live after his retirement, and about the manner in which ownership of Rental would pass to their daughters and son-in-law; the latter had been working for Rental for a substantial number of years. Mr. Fehrs was concerned that no outside *181 party would be interested in buying a corporation such as Rental; he felt that the alternatives were to liquidate it or to carry it on within the family. He also desired that the petitioner have a means of obtaining operating capital. Mr. and Mrs. Fehrs discussed these problems, as well as the matter of annuities, with their counsel prior to making the exchange. In fact, their counsel planned the formation of the petitioner and has assisted in the planning of its affairs.

For its taxable year ending November 30, 1965, *158 the petitioner reported no gain or loss on account of the sale of the Rental stock. In the notice of deficiency in this case, the respondent determined that the petitioner realized a short-term capital gain in the amount of $ 725,000 from the alleged sale of the stock of Rental during the year in issue; the respondent determined that the petitioner should have recognized such gain in that year to the extent of the amount of the cash received; $ 100,000. The alleged gain of $ 725,000 is based on the theory that the petitioner's basis in the Rental stock was zero, and that its sales price on March 1, 1965, was $ 725,000, with $ 625,000 of such price being deferred.

OPINION

The issue ultimately to be decided in this case appears to be simple: Did the petitioner realize a capital gain on the sale of the Rental stock in 1965? However, to reach that ultimate issue, we must work our way through an amazing maze of preliminary issues. At no time has the respondent taken the position that Rental's acquisition of its stock constituted a redemption under section 302 and that the payments received by the petitioner should be treated as dividends; at all times, he has treated such payments *159 as a capital gain. The controversy revolves about the petitioner's basis in the stock. The respondent contends that section 304 is applicable to the petitioner's acquisition of stock from Mr. and Mrs. Fehrs and that its basis in such stock is therefore determined under sections 304 and 362(a). He concedes that if section 304 is applicable to the petitioner's acquisition of such stock, the gain which it realized on the transfer of such stock to Rental is taxable as a long-term capital gain. Thus, the initial issue for us to consider is whether section 304 is applicable to the petitioner's acquisition of the stock.

Section 304(a)(1) provides in relevant part that, if one or more persons are in "control" of each of two corporations, and if one of those corporations acquires stock in the other corporation from the person or persons in control, then the transaction shall be treated as a redemption under section 302. The stock shall be treated by the acquiring corporation as having been received as a contribution to its capital. The term "control" is defined in section 304(c)(1) as "the ownership of *182 stock possessing at least 50 percent of the total combined voting power of*160 all classes of stock entitled to vote, or at least 50 percent of the total value of shares of all classes of stock." Furthermore, section 304(c)(2) states that the rules contained in section 318(a) with respect to the constructive ownership of stock shall apply for the purpose of determining "control," except that the 50-percent limitations of sections 318(a) (2)(C) and 318(a)(3)(C) shall be disregarded for such purpose. Section 318(a) provides that an individual shall be considered as actually owning the stock which is owned by his spouse, his children, and his grandchildren.

Section 304(a)(1) applies to what is commonly referred to as a "redemption by related or brother-sister corporations." It is clear that by its terms, such section applies to the factual situation in this case. Immediately prior to the transactions here in issue, Mr. and Mrs. Fehrs actually owned 1,159 of the 1,380 outstanding shares of Rental, and their daughters and grandchildren owned 196 shares; thus, a total of 1,355 shares, or 98.2 percent of the outstanding stock, was actually or constructively owned by either Mr. Fehrs or Mrs. Fehrs. Only the 25 shares owned by Mr. Vlcek were not attributed to either*161 of the Fehrses under section 318(a). All of the outstanding shares of the petitioner were owned by the daughters of the Fehrses, and were, therefore, similarly attributable to Mr. Fehrs or Mrs. Fehrs. Thus, either Mr. Fehrs or Mrs. Fehrs, or both, were regarded as the person or persons in control of both the petitioner and Rental prior to the transactions in issue. The transaction in which the petitioner acquired stock in Rental from Mr. and Mrs. Fehrs in return for the annuities must be treated as a redemption, and the stock of Rental so acquired must be treated as having been transferred by Mr. and Mrs. Fehrs to the petitioner as a contribution to its capital, under the express mandate of section 304(a)(1). See Rose Ann Coates Trust, 55 T.C. 501 (1970), on appeal (C.A. 9, June 17, 1971); Ray A. Maher, 55 T.C. 441 (1970), on appeal (C.A. 8, Oct. 12, 1971); Ralph L. Humphrey, 39 T.C. 199 (1962).

The petitioner's only serious objection to the applicability of section 304 is its contention that the respondent is estopped from raising such issue in this case by reason of his action in asserting*162 and collecting a deficiency in gift tax from Mr. and Mrs. Fehrs on the basis that their transfer of the Rental stock to the petitioner constituted a gift in part. There has been a good deal of confusion in the development of the issues in respect of the petitioner's acquisition of stock from Mr. and Mrs. Fehrs and its sale of such stock to Rental. At first, the respondent took the position that the transfer of stock by Mr. and Mrs. Fehrs was in part a sale and in part a gift to the shareholders of the petitioner. Later, he changed his attack; with respect to the income tax liability of Mr. and Mrs. Fehrs for the year 1966, he took the position *183 that the $ 70,000 distributed to the Fehrses in such year was a "redemption distribution essentially equivalent to an ordinary dividend." In the notice of deficiency which led to this case, the respondent determined that the entire gain recognized by the petitioner in 1965 was taxable; although the notice said nothing expressly about the applicability of section 304, the result was apparently based on the premise that such section was applicable. In his opening statement in the trial of this case, the respondent's counsel did expressly*163 adopt the position that section 304 is applicable. The petitioner contends that since the respondent initially took the position that such transfer was a sale and a gift, he cannot now contend that the transaction was a redemption. On the other hand, the respondent argues that since Mr. and Mrs. Fehrs have filed claims for refund of the gift taxes paid by them in which they alleged that no such gifts were made, the petitioner cannot now argue that the transfer was in part a gift.

So far as we know, the claims for refund are still pending, and there has been no final disposition of them. Since the Fehrses' gift tax liability has been challenged and the collection of that tax is not irrevocable, we need not even reach the question as to the consequences of an irrevocable payment of such tax; here, it is clear that the respondent's assertion of such liability cannot work an estoppel in this case and does not impose upon him any duty of consistency. Inasmuch as both the respondent's claims in the other proceedings and the claims by Mr. and Mrs. Fehrs are still to be adjudicated, it seems that the appropriate course for us is to disregard the positions taken by the parties in those*164 proceedings and to adjudicate this case in accordance with the law and the facts presented to us. Our conclusions will no doubt be taken into consideration in the final adjudication of those other claims. Accordingly, we hold that section 304 is applicable to the petitioner's acquisition of the Rental stock.

In view of that conclusion, we now reach the question as to what was the petitioner's basis for the Rental stock under section 304. The petitioner must treat the stock as if it received the stock from the Fehrses as a contribution to its capital; therefore, the petitioner's basis equals the basis of the transferred stock in the hands of Mr. and Mrs. Fehrs plus the amount of gain, if any, which was recognized by Mr. and Mrs. Fehrs upon the transfer. ³Secs. 304(a)(1)(B) and 362(a)(2); sec. 1.304-2(a), Income Tax Regs. It has been stipulated that the basis of the transferred stock in the hands of the Fehrses was zero, so the only remaining question in computing the petitioner's basis in such stock is with respect to the amount of the gain, if any, which Mr. and Mrs. Fehrs recognized upon the transfer. According to the income tax *184 regulations, there is no step-up *165 in the petitioner's basis if the redemption is treated as essentially equivalent to a dividend under section 302 and if the payments to Mr. and Mrs. Fehrs are taxable as a dividend under sections 302(d) and 301, but if the redemption qualifies as an exchange under section 302(b), the petitioner's basis is increased by the gain recognized by Mr. and Mrs. Fehrs. Sec. 1.304-2(c), examples (1) and (3), Income Tax Regs. The validity of such rules has not been challenged. Thus, to determine whether there is any step-up in the petitioner's basis in the stock, it becomes necessary to determine first whether the redemption is essentially equivalent to a dividend under section 302 or whether it qualifies as an exchange under such section.

*166 Section 302 sets forth in subsection (b) the conditions under which a redemption of stock shall be treated as an exchange, and provides in subsection (d) that if those conditions are not met, then the distribution is one to which section 301 applies. If the redemption meets any one of the four tests set forth in section 302(b), it is treated as an exchange, and the amount of the distribution is treated as payment for the stock. Neither party argues the applicability of section 302(b)(2) or 302(b)(4) in this case, but the petitioner argues that the redemption should be treated as an exchange because it meets the test of either section 302(b)(1) or 302(b)(3). We shall consider each such test.

Section 302(b)(1) states, in effect, that the redemption shall be treated as an exchange if it "is not essentially equivalent to a dividend." To meet this test, a redemption must result in a meaningful reduction of the shareholder's proportionate interest in the corporation, after applying the attribution rules of section 318(a) to the stock ownership interests as they existed both before and after the red emption. Secs. 1.302-1(a), 1.302-2(b), Income Tax Regs.; United States v. Davis, 397 U.S. 301 (1970).*167 Furthermore, in answering the question of dividend equivalence, it is irrelevant that the transaction in issue had a bona fide business purpose other than tax avoidance. United States v. Davis, supra;Johnson v. United States, 434 F. 2d 340 (C.A. 8, 1970); Joseph Miele, 56 T.C. 556, 567 (1971), on appeal (C.A. 3, Sept. 16, 1971); Rose Ann Coates Trust, supra at 514; Ray A. Maher, supra at 453.

After applying the attribution rules, Mr. and Mrs. Fehrs are considered as owning 98.2 percent of the outstanding shares of Rental -- 1,355 out of 1,380 -- both immediately before and immediately after the redemption by the petitioner. We discussed previously the method of computing the preredemption figure; the postredemption figure is reached by attributing to the Fehrses the shares owned by the petitioner as well as those owned by their descendants. The latter result obtains from attributing the petitioner's 1,159 shares to Mmes. *185 Vlcek and May by virtue of section 318(a)(2)(C), the 50-percent requirement of which is not*168 applicable here by reason of