Opinion
Docket Nos. 28539 28565.
1955-11-30
AMERICAN PIPE & STEEL CORPORATION, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.W. G. KRIEGER CO. (FORMERLY PALOS VERDES ESTATES, INC.), PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Alva C. Baird, Esq., Arthur J. Hair, Esq., William A. Cruikshank, Jr., Esq., and Thomas A. Baird, Esq., for the petitioners. R. B. Sullivan, Esq., Charles H. Chase, Esq., and R. E. Maiden, Jr., Esq., for the respondent.
The Commissioner held that the principal purpose for which American Pipe and Steel Corporation acquired the capital stock of Palos Verdes Estates, Inc., was the evasion or avoidance of income or excess profits taxes by securing the benefit of deductions, credits or allowances which it would not otherwise enjoy. Held, the petitioner has not proved the respondent's holding to be erroneous. Alva C. Baird, Esq., Arthur J. Hair, Esq., William A. Cruikshank, Jr., Esq., and Thomas A. Baird, Esq., for the petitioners. R. B. Sullivan, Esq., Charles H. Chase, Esq., and R. E. Maiden, Jr., Esq., for the respondent.
Respondent determined deficiencies in income and excess profits taxes of petitioners in amounts and for years, as follows:
+-----------------+ ¦Docket No. 28539 ¦ +-----------------¦ ¦ ¦ ¦ ¦ +-----------------+
AMERICAN PIPE AND STEEL CORPORATION
Year Tax Deficiency 1944 ( Income $23,504.02 ( Excess profits 34,955.02 1945 ( Income 17,753.50 ( Excess profits 84,299.14 1946 Income 53,264.70
Docket No. 28565
W. G. KRIEGER CO. (FORMERLY PALOS VERDES ESTATES, INC.)
Year Tax Deficiency 1944 Income $1,783.20 1945 Income 19,521.85
Certain adjustments made by respondent in both cases are uncontested. An alternative issue affirmatively raised by respondent in the pleadings has been abandoned. The sole controversy remaining to be resolved is whether petitioner in Docket No. 28539, American Pipe and Steel Corporation, is entitled to the tax benefits claimed in the consolidated returns which it filed for 1944, 1945, and 1946 by reason of its acquisition of the entire capital stock of Palos Verdes Estates, inc.
FINDINGS OF FACT.
The stipulation of certain facts filed by the parties with an exhibit attached is adopted, and, by this reference, made a part hereof.
The petitioner in Docket No. 28539 is the American Pipe and Steel Corporation (hereinafter referred to as American Pipe), a corporation organized under the laws of the State of Nevada on May 27, 1929. It maintains its principal place of business in Alhambra, California. American Pipe keeps its books of account and files its income tax returns on an accrual method of accounting on a calendar year basis.
The petitioner in Docket No. 28568 is W. G. Krieger Co., formerly Palos Verdes Estates, Inc., and hereinafter called Palos Verdes. Palos Verdes is a corporation organized under the laws of the State of California on March 11, 1935. Its name was changed to its present form by amendment of its articles of incorporation on April 13, 1953. During the taxable years at issue, it had its principal office in Alhambra, California. Palos Verdes keeps its books of account and files its income tax returns on an accrual basis of accounting. Prior to the acquisition of its capital stock by American Pipe, Palos Verdes used the fiscal accounting year ending on February 28. Effective from December 2, 1943, this fiscal year was changed, with permission and approval of the respondent, to the calendar year.
American Pipe filed consolidated income tax returns for each of the years 1943, 1944, 1945, and 1946 with the then collector of internal revenue for the sixth district of California at Los Angeles, in which returns were included the operations of Palos Verdes, as a wholly owned subsidiary, beginning with the period December 3, 1943, to December 31, 1943. Such returns showed consolidated normal tax net income or losses, which were the result of consolidating the net income and/or losses of the respective corporations, as follows:
+---------------------------------------------------+ ¦ ¦American ¦Palos Verdes ¦Consolidated ¦ +------------+----------+-------------+-------------¦ ¦Taxable year¦Pipe net ¦net income ¦net income ¦ +------------+----------+-------------+-------------¦ ¦ ¦income ¦(or loss) ¦(or loss) ¦ +------------+----------+-------------+-------------¦ ¦ ¦(or loss) ¦ ¦ ¦ +------------+----------+-------------+-------------¦ ¦1943 ¦$16,880.52¦($245,800.74)¦($228,920.22)¦ +------------+----------+-------------+-------------¦ ¦1944 ¦96,515.44 ¦(419,329.90) ¦(322,814.46) ¦ +------------+----------+-------------+-------------¦ ¦1945 ¦144,909.04¦(272,164.94) ¦(127,255.90) ¦ +------------+----------+-------------+-------------¦ ¦1946 ¦316,644.17¦(148,632.80) ¦168,011.37 ¦ +---------------------------------------------------+
The amounts stated in the Palos Verdes column and in the consolidated column for the taxable year 1944, reflect a carryover of claimed net operating loss of Palos Verdes for the period December 3, 1943, to December 31, 1943, deducted on the consolidated return filed for the year 1944 in the amount of $215,639.88. The amounts stated in the Palos Verdes column and in the consolidated column for 1945 and 1946 reflect carryovers of claimed net operating losses for the first and second preceding years of Palos Verdes deducted on the consolidated returns filed for 1945 and 1946, in the amounts of $322,814.46 and $107,174.58, respectively.
At the time of filing the consolidated return for the year 1943, a separate return was also filed by Palos Verdes for the period begun March 1, 1943, and ended December 2, 1943, with the then collector of internal revenue for the sixth district of California. The books of Palos Verdes were closed for this purpose on December 2, 1943.
As of December 2, 1943, the principal assets of Palos Verdes consisted of approximately 695 lots in the vicinity of Palos Verdes, California. These lots had been sold and transferred by tax deeds to the State of California on or about July 1, 1938, for nonpayment of taxes for the year 1931-1932 totaling $97,406.39. Palos Verdes had been in poor financial condition since 1936. The period between 1938 and 1943 was the worst in its financial history. The lots owned by Palos Verdes were in a restricted residential area with a specified minimum cost for houses built therein. These restrictions were supervised by lot owners who composed the Palos Verdes Homes Association and a committee known as the Art Jury. Originally in 1920, the lost held by Palos Verdes embraced a larger tract. As early as 1937, Palos Verdes had unsuccessfully tried to interest buyers and contractors in combining with it in the erection of houses as an attraction for the sale of its remaining lots. Much of the property was wholly or partly without improvements as to roads and utilities. It had, in 1942, three employees, two of whom were on a part-time basis.
The stock control of American Pipe, during 1942 and all subsequent taxable years in issue in this proceeding, rested in Jack Lane and W. G. Krieger, who were partners or associates in the purchase of approximately 96 per cent of the outstanding shares thereof. Their interests in the shares were equal. At all times pertinent to the issues in these proceedings, Lane was the president of American Pipe and Krieger was secretary or secretary and treasurer.
Aside from a brief period, Lane had been associated with American Pipe since about 1928. He was vice president thereof from the time he acquired his 48 per cent stock interest until in or about 1942 when he became president. He had previously been credit manager for about 10 years. Although largely self-educated, he had experience in various departments of an oil company, including the production and auditing departments. Lane had an extensive background in many phases of the local real estate business, including the development of tracts, management, and selling of properties through his own concern. He had long been familiar with real estate in the Palos Verdes area, having acquired a real estate broker's license in 1937, at which time he opened a real estate office 4 miles north of Palos Verdes.
American Pipe was principally engaged in the steel fabricating business, its main products being pipe and different types of tanks, fabricated products of steel, aluminum, and other alloys. Some of the larger items were field fabricated. More than 500 different products were manufactured. In May or the early part of June 1942, American Pipe received inquiries from the War Production Board, San Francisco, relative to bids for the building of 25,000 forge welded containers for lethal gas. Prior to this inquiry, American Pipe had been engaged on its own, and through subcontractors, in other war contracts, manufacturing various types of material for the war effort.
The specifications for the lethal gas containers called for a particular process of manufacture, which process was unfamiliar to Lane and/or American Pipe. After consultation with American Pipe's engineer, on June 26, 1942, Lane submitted a quotation to the War Production Board which turned the matter over to the Chemical Warfare Service for further negotiations. At that time the tanks were being purchased by the Chemical Warfare Service for $190 each.
In July of 1942, after conferences with the Chemical Warfare Service, Lane felt that the contract was going to be awarded to American Pipe. On September 3, 1942, American Pipe received a written contract from the Chemical Warfare Service to produce 25,000 containers for $3,500,000.
Between May 29, and July 29, 1942, Lane had various meetings with Robert P. Archer at which the pending defense contract was discussed. Lane was also informed of the Palos Verdes situation by Archer and that its stock was then selling between 25 cents and 45 cents per share. Archer was interested in the possibilities of profit to be made on the lots owned by Palos Verdes if he could acquire enough of the outstanding stock thereof to gain control. Archer had experience in the past with real estate and escrow transactions, having worked at the California Title Insurance Company, whose president was his father's law partner. He had been an appraiser with Fidelity Savings & Loan. He had had considerable experience in real estate generally. Since 1926, Archer had been a licensed real estate broker. Archer and Lane had formerly been associated in real estate business ventures as early as 1937 or 1938. They had known each other since 1930 or 1931.
On or about July 29, 1942, Lane suggested that Archer join the American Pipe organization as expediter on the defense contract which it appeared certain of getting. Archer wanted American Pipe's assistance in financing the acquisition of Palos Verdes. Lane and his associate Krieger agreed to lend Archer $2,500 for the purchase of Palos Verdes stock. Archer was employed by American Pipe as an ‘expediter’ at $100 per week on August 12, 1942, on which date he was placed on the payroll as an ‘accountant.’ Archer had never engaged in accounting work.
On August 18, 1942, an escrow account was opened with the Bank of America in the name of ‘R. P. Archer’ with $1,000 advanced by American Pipe. Ultimately, American Pipe advanced between $6,000 and $7,000 and some 2,500 shares of Palos Verdes stock were obtained by Archer through the escrow procedure. This procedure was originally employed so that American Pipe could have control of the Palos Verdes shares should Archer fail to go through with his deal. At the time the escrow account was opened, Archer personally was without funds, had alimony commitments, and was very close to being ‘broke.’
The formal offer to the then owners of Palos Verdes stock was made in a mimeograph form letter dated August 18, 1942, reading in part as follows:
TO THE PREFERRED STOCKHOLDERS OF PALOS VERDES ESTATES, INC.:
I hereby offer to purchase all of the outstanding preferred stock of Palos Verdes Estates, Inc. at a price of two dollars ($2.00) per share. This offer is good for fifteen (15) days from date hereof, and unless I can purchase seventy per cent (70%) of said stock within said time, I reserve the right to cancel this offer. If you desire to sell please sign the acceptance provided below, endorse your certificate or sign the attached stock power, and forward the same together with the stock to Bank of America, Escrow Department, Redondo Beach, California, with the instructions provided below.
R.P. ARCHER, Nominee
Archer's efforts to obtain Palos Verdes stock were greatly aided by E. B. Haggot, the then president of Palos Verdes. Haggot had long been a close friend of Archer's and was personally indebted to him for many past favors and accommodations. At the time the escrow account was opened, there were unpaid and past due taxes on the lots owned by Palos Verdes totaling $80,000 to $100,000. There were about 3,500 shares of Palos Verdes stock outstanding. It was Archer's opinion that if he could acquire 70 per cent of such shares, then, by amending the articles of incorporation to allow levying an assessment against the stock, the recalcitrant stockholders would be forced to sell and complete ownership of the corporate structure could be obtained.
Having lost title to all its remaining real estate assets by reason of nonpayment of Los Angeles county taxes for the year 1931-32, and tax deeds therefor having been given by the tax collector to the State of California on July 1, 1938, Palos Verdes, on July 27, 1943, instituted an action in the Superior Court of the State of California against the State of California and other taxing authorities to set aside the tax sales and tax deeds with respect to 695 lots. On August 2, 1943, the court entered an interlocutory decree based upon a stipulation of the parties concerned, and set aside the tax sales and tax deeds to the lots involved in such action. The decree restored the rights of redemption free of interest, penalties, and costs, but limited the extension of time so to redeem by requiring payment of all such delinquent taxes, as corrected, to be made within 6 months after the decree became final.
More than a month before the commencement of the tax title redemption action, a sufficient percentage of shares had been acquired to enable the amendment of the articles of incorporation of Palos Verdes so as to permit the levying of assessments upon the stock of Palos Verdes; and, at a special meeting on June 23, 1943, the board of directors of Palos Verdes adopted a resolution to this end. On August 26, 1943, an assessment of $40 a shares was levied and the resolution, which so levied the assessment, provided for a certain day, September 27, 1943, for payment of such assessment, and further provided and fixed the time at which delinquent stock would be placed on sale or forfeited if unsold. The date originally selected for sale or forfeiture of Palos Verdes stock, October 15, 1943, was postponed until December 2, 1943.
None of the holders of record of Palos Verdes offered to pay the assessment of $40 plus 5 per cent delinquency penalty on each share of stock held by them. The only person to appear and bid upon any portion of stock offered at the assessment sale was Archer who bid upon and purchased 96 shares of stock, held by seven individuals, for a total of $4,032. In bidding upon the 96 shares, Archer was acting for American Pipe and the funds used by Archer to purchase such shares were furnished to him for that purpose by American Pipe. Title to the 96 shares bid in by Archer was taken by Archer in his own name. The shares purchased through escrow and at the assessment sale constituted all of the outstanding stock of Palos Verdes. In confirming Archer's purchase of the 96 shares of stock, the directors, on December 2, 1943, the same day as the sale, declared all other shares forfeited for failure of any person to pay the assessment plus penalty thereon.
As a result of the purchase of 96 shares by Archer in behalf of American Pipe, on December 2, 1943, American Pipe became the owner of all the outstanding shares of stock of Palos Verdes. Such stock was obtained by American Pipe at a total cost of $11,248.96, which figure includes the $4,032 paid for the 96 shares purchased by Archer at the assessment sale, as well as the funds furnished to Archer at the assessment sale, as well as the funds furnished to Archer for the purchase of approximately 2,600 shares through the escrow procedure.
Beginning with December 3, 1943, and continuing through the periods involved in these proceedings, Palos Verdes was a wholly owned subsidiary of American Pipe. Prior to its acquisition by American Pipe, the fiscal year of Palos Verdes ended on the 28th day of February, whereas American Pipe filed its returns on the calendar year basis. Both taxpayers used the accrual basis of accounting. American Pipe caused Palos Verdes' fiscal year to be changed to the calendar year effective from December 2, 1943, and American Pipe further caused consolidated returns to be filed for the short 1943 period, as well as for the subsequent years here involved.
Beginning on December 23, 1943, Lane caused several advertisements to be run in local newspapers announcing ‘Liquidation Sale’ of ‘Palos Verdes Estates,‘ of two parcels totaling 437 lots. The advertisements stressed for ‘postwar construction or to investors.’ Lane's name appeared in these advertisements.
Shortly after December 23, 1943, Carl H.Dahlberg had a meeting with Lane. Dahlberg and Lane had known each other since 1932, when Dahlberg had first gone to work for Lane. In 1937 and 1938, Lane, Archer, Dahlberg, and Roy Dolley had been associated in a real estate venture in Glendale, California. Dolley was attorney for American Pipe during 1942 and 1943, and also represented Palos Verdes in its tax title redemption action brought in the California State court. At the time Dahlberg and Lane discussed the liquidation advertisements concerning Palos Verdes property and at the time of the hearing of these proceedings, Dahlberg still had an interest in the Glendale venture. Dahlberg is now vice president of American Pipe.
Between 1937 and 1942, Dahlberg had worked for Celotex Corporation, a corporation in the building materials business. Celotex had licensed Drycemble Houses, Inc. (hereinafter called Drycemble) to use its products. In 1942, Dahlberg was employed by Drycemble as vice president in charge of sales. Drycemble manufactured prefabricated houses. In December 1943, Dahlberg opened an office for Drycemble in Los Angeles. At that time, that corporation was concerned exclusively with war housing projects, building materials being restricted to projects connected with the war effort. It was not the policy of Drycemble to acquire, nor had it acquired, any real estate tracts or groups of lots for the purpose of building thereon.
In December 1943, after viewing the Palos Verdes properties with Lane and others, Dahlberg was permitted to purchase 451 lots for $18,000. In addition, Dahlberg assumed back taxes of about $10,000 on these lots which were to come due 2 or 3 months after the original sale to him. The transaction by which Dahlberg obtained title to 451 lots of Palos Verdes did not involve Drycemble but was a personal transaction insofar as Dahlberg was concerned. The sale of the lots to Dahlberg by Palos Verdes with the approval of American Pipe was not a cash transaction. Dahlberg gave therefor his personal, 4-year, 5 per cent note dated December 28, 1943, in the amount of $18,000. Shortly thereafter, when the taxes on lots obtained from Palos Verdes by Dahlberg became due under the stipulated court decree of August 2, 1943, Palos Verdes advanced the funds to Dahlberg to enable him to pay such taxes, for which Palos Verdes received his personal 4-year, 5 per cent note dated April 7, 1944, in the amount of $9,884.83. At no time did Dahlberg make any cash payments to Palos Verdes in connection with the lots obtained by him.
Some 4 years later, on January 28, 1948, Dahlberg reconveyed by grant deed to Lane personally and not acting for or on behalf of either American Pipe or Palos Verdes the lots remaining in Dahlberg's name which had not been lost for taxes. A contemporaneous agreement between Lane and Dahlberg recited that Dahlberg retained a contingent monetary interest in the lots deeded to Lane if Lane were able to sell them in excess of a stated amount; otherwise Dahlberg retained no legal or equitable interest in the lots. Under this agreement, the sales proceeds, as received, and only if and when any sales were made, were to be first applied to delinquent taxes, penalty assessments, and other accruals and not until after such applications were proceeds to be applied on the Dahlberg notes. In December 1943, at the time Dahlberg obtained the lots from Palos Verdes, he was unable personally to supply any funds for them. In January 1948, at the time Dahlberg deeded the lots back to Lane individually, Dahlberg was unable to supply funds for taxes. In addition to these lots, Lane personally bid in for his own account at public sale held in 1947, 197 lots, some of which included lots previously forfeited by Palos Verdes.
Two days following the sale to Dahlberg of the aforementioned 451 lots, Palos Verdes, on December 30, 1943, executed and delivered a grant deed to Dahlberg, and on the same date Dahlberg's wife executed a quitclaim deed to him so that he became the sole owner. The following day, December 31, 1943, the deeds were recorded.
The basis to Palos Verdes of the lots thus sold to Dahlberg in 1943 was $250,781.80, and the resulting loss was $232,781.80. This loss plus other deductions and costs was reflected on the consolidated returns filed for the short period from December 3, 1943, to December 31, 1943, by American Pipe and Palos Verdes as an operating loss of Palos Verdes.
On January 15 and 16, 1944, American Pipe caused the balance of the lots remaining after the Dahlberg sale to be put up for public auction. The public auction was under the direction of Dean S. Bedilion, a well-known local real estate auctioneer. The advertisements for this auction which appeared in local newspapers stressed the fact that the lots to be sold represented ‘The last of the better residential districts in Southern California.’ The lots which were sold at auction netted $16,185 after costs of sale. The basis to Palos Verdes of the lots sold was $183,797.91. The resulting loss of $167,612.91 was reflected on the consolidated returns filed for 1944. Some additional lots were sold at private sales, after the date of the auction, some of them for around $500 each. The remainder of the lots not redeemed or sold by Palos Verdes was lost under the terms of the final decree of the Superior Court entering judgment to quiet title in the State of California. This decree was entered on May 15, 1944. Final judgment in favor of Palos Verdes on all lots redeemed by payment of delinquent taxes was entered on March 16, 1945. This judgment in favor of Palos Verdes, on all lots redeemed, operated for the benefit of its grantees, inasmuch as it no longer owned any lots in Palos Verdes tracts.
Subsequently, in 1947, the State of California put up for sale some of the lots unredeemed and lost by Palos Verdes. At this sale, Lane personally bought for his own account as many lots as he could afford to purchase at that time and now owns altogether approximately 300 lots.
At the outset of its attempted performance of the contract with the Chemical Warfare Service, American Pipe encountered serious trouble and experienced many problems with the manufacture of lethal gas containers. Such trouble consisted of problems with the heats and designs of the furnaces, specification gauges, obtaining priorities to and locating material, in building the new plant at Alhambra, and labor and inspection troubles. The inspection trouble continued to the end of the contract. None of the containers which American Pipe completed were accepted for delivery by the appointed inspectors under the contract, but were placed in a suspense area for subsequent reinspection by a board of military men. American Pipe had not maintained the schedule called for under the contract, partly through its own fault and partly because of conditions over which it had no control.
About a week prior to September 29, 1943, Lane heard that the Chemical Warfare Service contract was to be terminated and on that date he was notified in writing that the contract was terminated at the necessity and convenience of the Government, except that 300 containers should be prepared for acceptance by the Government. A separate letter of the same date contained a request that American Pipe submit, as soon as possible, data to serve as a basis for a settlement of the amount due American Pipe by reason of the termination, such as costs, proposals for a negotiated settlement, etc. The reason for the Government's termination of the contract was that a new type of lethal gas had been developed and that the American Pipe containers were not needed for such new type of gas.
On October 14, 1943, Lane wrote a letter in answer to that of the Chemical Warfare Service of September 29, 1943, in which he estimated that American Pipe's investment in the contract as of such date was approximately $1,290,000. This amount included a ‘V’, or Government-guaranteed, loan with the Federal Reserve Bank for $1,020,000, about $100,000 of which had been used for purposes other than this contract. Lane concluded that American Pipe had invested approximately $368,000 in addition to borrowed funds. Lane also requested urgent consideration of the matter inasmuch as American Pipe had its accounts receivable assigned to the bank under the requirements of the ‘V’ loan, was without operating funds, and for the further reason that American Pipe had a substantial backlog of war work.
The cost figures used by Lane included sums borrowed from the bank which had been used by American Pipe for the erection of American Pipe's new plant at Alhambra to manufacture the containers. After the figures were compiled later, in October 1943, American Pipe put in a claim, as requested and as a result of the contract termination at the convenience of the Government, in the amount of $1,252,000. Toward the end of 1943, final agreement as to a sum in the amount of approximately $1,050,000 was reached between American Pipe and the Government. American Pipe's separate profit and loss statement for 1943, per returns, reflected a net operating loss from the contract of $116,240.30 and, after adjustments for other deductions, total income of $339,560.36 was reduced to a net profit of $16,880.52 for 1943.
On November 25, 1943, Lane wrote a letter to the board of directors of American Pipe, as follows:
NOVEMBER 25, 1943
BOARD OF DIRECTORS
AMERICAN PIPE & STEEL CORPORATION
230 DATE AVENUE
ALHAMBRA, CALIFORNIA
GENTLEMEN:
Last May, Robert P. Archer wrote us regarding the Palos Verdes Estates, Inc. and a copy of that letter is attached hereto. Of course, at that time we were not interested in his proposition, but during the interim I have occasionally discussed his situation with him and have followed the activities of the company.
Archer's original plan was to acquire controlling interest in the company in order to elect a new Board of Directors, which would seek to rehabilitate the company in the real estate business. The present Board of Directors, however, attempted this rehabilitation by making the stock assessable and wanted the stockholders to put up sufficient money to pay the taxes and proceed with the development and/or sale of its properties. The plan failed and Archer does not have the funds to proceed with his original plans, therefore, he has informally proposed that we pay him his costs for his interest in the company and in such event he will seek to acquire the rest of the outstanding stock. This would give us Palos Verdes as a wholly owned subsidiary for approximately $13,000.00.
In the exhaustive study which I have made, I find that the lots owned by the company come under three classifications:
(1) Represents approximately 147 lots in the Lunada Bay Area. All lots in this are contiguous.
(2) Represents approximately 315 lots located in the uppermost part of the tract and covers about 115 acres. All lots in this area are contiguous.
(3) Represents approximately 235 to 250 lots scattered throughout the tract.
There are approximately 11,000 lots originally subdivided in the subdivision owned by Palos Verdes Estates, Inc. There is only one real estate broker doing business at the present time in the City of Palos Verdes, which leaves room for another live wire real estate company for post war development.
As you know, I have been a real estate broker for a number of years and am thoroughly familiar with the problems arising in the real estate business, as well as the profits to be gained.
The American Pipe & Steel Corporation has many activities in which the control of a real estate company having powers broad enough to engage in other lines of business would be a distinct advantage. In this connection, I will list below several of these advantages which we have discussed informally many times.
(1) In connection with our water pipe and casing business, we have often lost large sales when competitors had an ‘in’ with the developer of a subdivision or could have taken property as part payment for the pipe and well casing.
In the development and sale of the Palos Verdes properties and other real estate put into the company, we could tie the sale of pipe and casing in with the sale of the property.
When subdivision developers (as we have seen in the past) are under-financed, we could buy part of the property as our security, and after supplying the pipe and well casing, could realize our profit as the subdivision was sold.
(2) In connection with our oil well equipment business, we have often seen competitors take leases and also purchase real property outright, thereby being in a position to tie in the sale of their oil field equipment with the leasing of the properties to the oil companies. This is quite an old procedure in California and Texas, and if we owned Palos Verdes, oil properties could be taken by them for leases or sub-leases to oil companies who would use American Pipe's products.
(3) For post war, Celotex Corporation has approached us informally on the matter of handling the sale and erection of steel houses which have been designed by the Pierce Foundation in cooperation with the Republic Steel Corporation and the Celotex Corporation. If we had the Palos Verdes Estates, Inc., or some subsidiary real estate company, it would provide a controlled outlet for fostering the development of sales of steel houses. Whether or not we make a deal with Celotex or others, I believe that the steel houses will be a very lucrative post war item, and the American Pipe should be interested in the fabrication and erection of these houses in one way or another.
(4) In connection with the manufacture of propane and other liquefied gas containers, we have seen various distributors in the east, and particularly Ernest Fannin in Arizona, build very lucrative businesses by loaning storage equipment to consumers and thereby controlling the sale of their liquefied gas. This, as you know, enables the liquefied gas distributor to charge from 1¢ to 3¢ a gallon more for his product than is charged by distributors having uncontrolled outlets and when the consumer owns his own storage equipment.
You are also familiar with the fact that we have often considered informally starting the distribution of liquefied gases to enhance the volume of containers. If we were to acquire Palos Verdes, a number of the lots could be set aside for development and containers would be furnished the purchasers of houses in the area, and Palos Verdes could distribute liquefied gas instead of running gas lines to the areas which do not have gas lines. This particular area would be a very good one in which to start the distribution of liquefied gases because there are approximately 20,000 acres undeveloped in which natural gas lines have not yet been laid. During the next 10 or 15 years a good part of this property is likely to be developed and built up.
Inasmuch, as we would want to start in the distribution business in a small way, one of the areas now in Palos Verdes Estates, Inc. presents an ideal place to start with a very small initial investment.
I, therefore, propose that the American Pipe & Steel Corporation purchase the Palos Verdes Estates, Inc. for the purpose of handling all of American Pipe's activities outside of the actual fabrication of steel products. I propose that a Board of Directors be elected which has the experience and ability to engage the company in the real estate business and any other profitable activities which will directly or indirectly benefit the American Pipe & Steel Corporation.
I would propose to this Board that the Area No. 3 be sold at public auction, over and above taxes, to raise sufficient funds to pay off the taxes on the other two areas, and that if sufficient money were not raised in this method, that one of the other areas also be sold. However, the contiguous lots should be sold at a private sale rather than at auction. This would leave the company with less property, but it would be free and clear of taxes which would enable Palos Verdes to be a factor in the real estate business in Southern California.
I would also propose that American Pipe (in the event that they acquire Palos Verdes) sell to Palos Verdes all of the rejected containers from the Chemical Warfare Contract at a price above what we have been offered by the junk dealers. This would enable Palos Verdes to enter into the distribution of L. P. Gas.
Yours very truly,
AMERICAN PIPE & STEEL CORPORATION (S) Jack Lane JACK LANE, President
JL:BF
On the same date, the board of directors of American Pipe adopted the following resolution:
RESOLVED, That Jack Lane, the president, be and he is hereby fully authorized and empowered to negotiate with Robert P. Archer and others for the acquisition of control of all outstanding stock of Palos Verdes Estates, Inc., and he is further authorized and fully empowered to do and perform all acts and things necessary or advisable in his judgment in connection therewith.
Subsequent to American Pipe's acquisition to Palos Verdes, as above described, Palos Verdes built no houses, made no improvements, and did not subdivide.
On December 10, 1943, the board of directors of Palos Verdes pursuant to a recommendation by Lane adopted the following resolution:
RESOLVED, That Jack Lane, the president, be and he is hereby authorized to purchase from American Pipe & Steel Corporation the rejected containers and shells for the purpose of using them in connection with the distribution of propane and/or butane, for the sum of approximately $15,000.00, upon such terms of payment as may be agreeable to American Pipe & Steel Corporation; and Jack Lane is further authorized and empowered to do and perform all other acts and things necessary or advisable in his opinion to conclude this transaction; and he is further authorized and directed to investigate various propositions relating to the distribution of liquefied gas in the Palos Verdes area and elsewhere in that general location.
On the same date, American Pipe's board adopted the following resolution:
RESOLVED that this company sell to Palos Verdes Estates, Inc. for the sum of approximately $15,000 all of the rejected containers and shells if and when the same become available for such sale, and any two officers of the company are hereby fully authorized and empowered to do any and all things necessary and expedient for the purpose of concluding this transaction, and they are further authorized to fix the terms and conditions of sale and the terms of payment.
The aforementioned containers were to be used in the distribution of butane and propane in the area around the properties owned by Palos Verdes. This plan for the use of the tanks was subsequently abandoned and Palos Verdes disposed of the tanks during 1944 and 1945 at a profit of $80,000 or more.
The total loss on abandonment or forfeiture of Palos Verdes' assets during 1944 was $117,080. This loss was reflected on the consolidated returns filed by American Pipe and Palos Verdes for the calendar year 1944.
As at December 31, 1943, exclusive of its so-called commercial work, American Pipe had a backlog of prime Federal Government contracts amounting to $850. This represented the remaining backlog on a total of such prime contracts awarded in 1943 in the amount of $224,648.71. It did not include the Chemical Warfare Service contract inasmuch as that contract was awarded in 1942 and had been terminated in September 1943. There were no other contracts awarded in prior years. Likewise, such total did not include the backlog of subcontracts for war materials not completed at December 31, 1943, in the amount of $123,753.29.
As at December 31, 1944, American Pipe had a backlog of prime Federal Government contracts amounting to $1,006,275.04 on total contracts awarded during the year, of $1,892,144.92. Out of this total substantially all, or $1,747,745.42 of such contracts, were awarded on or after July 15, 1944. The largest contract awarded prior to May 12 was for $1,800. This total did not include subcontracts for war materials not completed at December 31, 1944. The backlog of such contracts at that date was $14,213.90.
On the basis of the foregoing facts, we arrive at the ultimate conclusion that the evidence does not establish that respondent erred in holding that the evasion or avoidance of income or excess profits taxes by securing the benefits of deductions, creditors or other allowances which it would not otherwise enjoy was the principal purpose for which American Pipe acquired the capital stock of Palos Verdes.
OPINION.
VAN FOSSAN, Judge:
Fundamentally, the question to be resolved is whether the principal purpose motivating American Pipe's acquisition of Palos Verdes was the evasion or avoidance of income or excess profits taxes through obtaining thereby tax benefits otherwise unavailable to it within the proscription of section 129, Internal Revenue Code of 1939.
Respondent has so determined. Based upon such premise, he has further determined that Palos Verdes was not a member of an affiliated group within the meaning of section 141 of the 1939 Code,
SEC. 129. ACQUISITIONS MADE TO EVADE OR AVOID INCOME OR EXCESS PROFITS TAX.(a) DISALLOWANCE OF DEDUCTION, CREDIT, OR ALLOWANCE.— If (1) any person or persons acquire, on or after October 8, 1940, directly or indirectly, control of a corporation, or (2) any corporation acquires, on or after October 8, 1940, directly or indirectly, property of another corporation, not controlled, directly or indirectly, immediately prior to such acquisition, by such acquiring corporation or its stockholders, the basis of which property, in the hands of the acquiring corporation, is determined by reference to the basis in the hands of the transferor corporation, and the principal purpose for which such acquisition was made is evasion or avoidance of Federal income or excess profits tax by securing the benefit of a deduction, credit, or other allowance which such person or corporation would not otherwise enjoy, then such deduction, credit, or other allowance shall not be allowed. * * *
and that, therefore, the filing of consolidated returns by American Pipe for the periods involved was not permissible under such section.
SEC. 141. CONSOLIDATED RETURNS.(a) PRIVILEGE TO FILE CONSOLIDATED INCOME AND EXCESS-PROFITS-TAX RETURNS.—An affiliated group of corporations shall, subject to the provisions of this section, have the privilege of making consolidated income and excess-profits-tax returns for the taxable year in lieu of separate returns. The making of consolidated returns shall be upon the condition that the affiliated group shall make both a consolidated income-tax return and a consolidated excess-profits-tax return for the taxable year, and that all corporations which at any time during the taxable year have been members of the affiliated group making a consolidated income-tax return consent to all the consolidated income and excess-profits-tax regulations prescribed under subsection (b) prior to the last day prescribed by law for the filing of such return. The making of a consolidated income-tax return shall be considered as such consent. In the case of a corporation which is a member of the affiliated group for a fractional part of the year, the consolidated returns shall include the income of such corporation for such part of the year as it is a member of the affiliated group. * * *
It is the position of petitioners that, as of the time American Pipe made the acquisition in dispute, the principal motivating intent behind such acquisition was the use of Palos Verdes for various legitimate business purposes. In support of this contention, petitioners point out that in December 1943, at which time American Pipe acquired complete ownership of Palos Verdes, the former's war contract had previously been canceled and that it was thought desirable to use Palos Verdes as an outlet for the disposition of surplus gas tanks which had been manufactured under such contract, and which were going to be left in American Pipe's possession. Petitioners further point out that the management of American Pipe was of the opinion that Palos Verdes presented an opportunity to obtain an outlet for pipes, casings, and other products manufactured by American Pipe. Finally, it is urged that it was deemed desirable for American Pipe to acquire another corporation for the purpose of carrying on certain auxiliary activities, such as owning oil properties and enterprises of other kinds, which were in competition with those to whom it was selling its products; and that Palos Verdes is, in fact, now engaged in just such sort of an operation under a different name.
The legislative history of section 129 was explored by us in Commodores Point Terminal Corporation, 11 T.C. 411. Briefly, the Congressional purpose was to halt the growing practice of avoiding taxes by the expedient of buying corporations having past, present or prospective losses, deficits, or large excess profits credits with the objective of reducing income or excess profits taxes. Of course, the statute was not intended to upset bona fide transactions or acquisitions where the proscribed intent is not present. See S. Rept. No. 627, 78th Cong., 1st Sess.; H. Rept. No. 871, 78th Cong., 1st Sess. Thus, to restrict its application to the situations for which it was intended, the statute specifies three basic prerequisites which must be satisfied. The taxpayer must have (1) acquired on or after October 8, 1940, control of a corporation or acquired, on or after such date, directly or indirectly, corporate property which takes as its basis, in the hands of the transferee, the transferor's basis; with (2) the principal purpose or intent underlying such acquisition of evading or avoiding income or excess profits taxes; by (3) securing the benefit of deductions, credits or allowances which the taxpayer would not otherwise enjoy.
In the instant case, petitioners do not and cannot deny that American Pipe acquired control of the corporate property of Palos Verdes, subsequent to the specified date, nor that, as an incident thereof, it stood to enjoy tax benefits not otherwise available to it. As above observed, petitioner denies, however, that the tax benefits were the principal consideration or motivating purpose behind the acquisition.
Although intent is a state of mind, it is none the less a fact to be found, as other facts are found— by a study of the entire record and the inferences to be drawn therefrom. The Commissioner having determined that the tax benefit to be gained was the principal purpose behind the acquisition, it was petitioner's burden to prove that such determination was erroneous. After a careful study of the record made, we have concluded that petitioner has not successfully carried his burden of proof. We have accordingly so found.
Decisions will be entered under Rule 50.