Opinion
Dockets Nos. 24571 24640.
1951-08-22
GRENADA INDUSTRIES, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.NATIONAL HOSIERY MILLS, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Robert A. Littleton, Esq., for the petitioner. Lester M. Ponder, Esq., for the respondent.
Two corporations, Industries and National, and two partnerships, Hosiery and Abar, were owned or controlled directly directly or indirectly by the same interests. On respondent's allocation of the income of the two partnerships to the two corporations, held, (1) allocation of Abar's income to the two corporations disapproved; (2) allocation of Hosiery's income to Industries approved; (3) allocation of Hosiery's income to National disapproved. Robert A. Littleton, Esq., for the petitioner. Lester M. Ponder, Esq., for the respondent.
The Commissioner determined the following deficiencies:
+-----------------------------------------------------------------------------+ ¦Docket¦Year¦Income tax¦Declared value ¦Excess ¦Penalty on excess ¦ ¦No. ¦ ¦ ¦excess-profits tax ¦profits tax ¦profits tax ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦24571 ¦1941¦$25,019.41¦$10,265.16 ¦$22,352.95 ¦ ¦ ¦1 ¦ ¦ ¦ ¦ ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦ ¦1942¦13,772.09 ¦ ¦17,183.98 ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦ ¦1943¦5,931.66 ¦ ¦43,946.64 ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦ ¦1944¦9,060.03 ¦ ¦62,835.39 ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦24640 ¦1940¦7,708.93 ¦1,794.24 ¦ ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦ ¦1941¦7,510.32 ¦ ¦14,467.34 ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦ ¦1942¦10,535.14 ¦1,870.81 ¦2,650.24 ¦ ¦ +------+----+----------+---------------------+------------+-------------------¦ ¦ ¦1943¦ ¦1,570.68 ¦34,485.08 ¦$1,724.25 ¦ +-----------------------------------------------------------------------------+
These proceedings were consolidated for hearing. They present the issue whether respondent erred in allocating to petitioners income claimed to have been earned by two other enterprises. In both proceedings, the determined deficiencies rested in part on other adjustments, but the validity of these other adjustments is conceded by both petitioners. In Docket No. 24640, a 5 per cent penalty, amounting to $1,724.25, was added because of late filing of an excess profits tax return for the taxable period ending December 31, 1943, and the validity of this penalty is also conceded.
FINDINGS OF FACTS.
Petitioner in No. 24571, Grenada Industries, Inc. (hereinafter sometimes referred to as ‘industries‘), is a corporation organized under the laws of the State of Mississippi, with its principal office at Grenada, Mississippi. For its fiscal years ending March 31, 1941, 1942, and 1943, it filed its tax returns in question with the collector of internal revenue for the district of Mississippi. For its fiscal year ending March 31, 1944, it filed its returns with the collector of internal revenue for the district of Indiana. Petitioner in No. 24640, National Hosiery Mills, Inc. (hereinafter sometimes referred to as ‘National‘), is a corporation organized under the laws of the State of Indiana, with its principal office at Indianapolis, Indiana. For its tax years under review, it filed its returns with the collector of internal revenue for the district of Indiana.
The ladies' hosiery industry consists of a number of recognized and distinct phases, which include: (1) Manufacturing unfinished and undyed hosiery, or hosiery ‘in the grey,‘
for which there is a market; (2) dyeing and finishing hosiery ‘in the grey‘; (3) developing and furnishing, to manufacturing and finishing mills, expert styling and merchandising specifications and ideas; (4) selling finished hosiery to the trade; (5) salvaging yarn and defective hosiery, by reclaiming yarn from waste and defective hosiery, and by mending defective hosiery and selling it to the trade. Many persons and businesses engage only in one or more of these phases of the industry.
Fiscal years ending Mar. 31.
Fiscal years ending Mar. 31.
The notices of deficiency sent to petitioners each stated:
Pursuant to the provisions of section 45 of the Internal Revenue Code portions of the gross income attributed to ‘Grenada Hosiery Mills‘, a purported partnership, have been allocated to you and included in your net income for the taxable years and in the amounts set forth below, to-wit:
In the alternative it is held that said purported partnership is without substance and that said portions of the income which were attributed to said purported partnership are taxable to you under the provisions of section 22(a) of the Internal Revenue Code.
Each notice of deficiency also made the same statement respecting the allocations of Abar's income to petitioners.
The notices of deficiency did not show the method of allocations of Hosiery's and Abar's income. There were introduced in evidence, however, a revenue agent's reports on Industries and on National. The amounts allocated to them by respondent were identical with the allocations made of Hosiery's and Abar's income in these reports, and these reports show the computations by which these allocations were reached.
National, Industries, Hosiery, and Abar were separately existing and and functioning organizations, trades, or businesses, but were owned or controlled directly or indirectly by the same interests. Allocation of Abar's income to petitioners was arbitrary and unreasonable, and such allocation was not necessary to prevent evasion of taxes or clearly to reflect petitioners' income. Allocation of Hosiery's income to National was likewise arbitrary and unreasonable. But respondent's allocation of Hosiery's income to Industries was reasonable and was necessary to prevent evasion of taxes or clearly to reflect Industries' income. The value of the services rendered by Hosiery to Industries was no greater than the salaries and wages paid by Hosiery during each of the years involved.
Decisions will be entered under Rule 50. ‘Grey‘ is sometimes used interchangeably with ‘gray‘ and ‘greige.‘ In the ‘grey‘ stage, the hosiery has been fully knitted, looped and seamed from the raw yarn, but remains to be dyed and finished.
Jacob A. Goodman (hereinafter also referred to as ‘J. A. Goodman‘) and Lazure L. Goodman (hereinafter also referred to as ‘l. L. Goodman‘) were brothers who had been engaged in the ladies' hosiery industry since 1915. At that time they operated their own business as hosiery distributors in Indianapolis and North Carolina. In or about 1920 they organized Real Silk Hosiery Mills, Incorporated (hereinafter referred to as ‘Real Silk‘), which came to engage in all the above-described phases of the industry. The Goodmans dominated and controlled Real Silk as long as they continued their affiliation with it, until 1937, and they acquired eminent reputations in the industry. They were responsible for Real Silk's successful merchandising and sales operations, and had extensive experience in merchandising and selling ladies' hosiery.
In 1925 Real Silk opened a salvaging department, prior thereto having sold its waste and defective hosiery. Abraham J. Barskin (hereinafter referred to as ‘Barskin‘), who at one time had independently been in the business of dealing in waste and defective merchandise, was put in charge of that department. Barskin was related to the Goodmans through marriage to their sister, who died in 1940.
Henry V. Kobin (hereinafter referred to as ‘Kobin‘) had been associated with the Goodmans at Real Silk. He entered Real Silk's employ in 1921. Theretofore the Goodmans had taken his brother, William Kobin, into the business. When William died in 1928, Kobin left Real Silk and, with the participation of the Goodmans, organized National. The Goodman family made investments in National. National engaged in the production, dyeing, finishing, and merchandising phases of the industry. In 1937 National organized a sales force; up to that time National sold its product through the sales organization of the Trojan Division of Real Silk. Kobin was familiar with all phases of National's operations and he, like the Goodmans, attained wide experience in the industry. In 1928 Barskin also left Real Silk and joined Kobin at National, where he held executive office and assisted in the manufacturing phase of the business.
Israel E. Solar (hereinafter referred to as ‘Solar‘) likewise was associated with the Goodmans at Real Silk. He was hired by Real Silk in 1923, at the age of sixteen, and advanced rapidly in the organization. He remained with Real Silk, except for a brief period, until 1937. Almost his entire business career was spent in the hosiery industry, and during this period he had close business relations with the Goodmans and was associated with companies with which the Goodmans were connected. While at Real Silk, he also knew Kobin and Barskin.
Charles E. Stevens (hereinafter referred to as ‘Stevens‘) was an accountant, who was employed by Real Silk in 1928. Prior to that time he had miscellaneous accounting experience. He remained as an employee of Real Silk until about 1932, when he left to go into the private practice of accounting, with his office at Indianapolis. Shortly thereafter he was retained by National, and supervised its accounting affairs. In his practice of accounting he specialized in tax and estate matters. He knew the Goodmans since about 1926 or 1927, and he advised the Goodmans and Kobin respecting the arrangement of their business affairs. Stevens had no technical training or experience in the hosiery industry.
At Stevens' advice, the Goodmans and Kobin created certain trusts for their children. L. L. Goodman had two children, Elliot R. and Sue Ellen, about 27 and 19 years of age, respectively, at the time of the hearing. J. A. Goodman had three children, Robert A., Ruth Elaine, and Jacqueline, about 25, 22, and 23 years of age, respectively, at the time of the hearing. Kobin's children were William and Anne, about 22 and 19 years old, respectively, at the time of the hearing. Esther M. Goodman was the wife of L. L. Goodman; Sarah W. Goodman was the wife of J. A. Goodman; Florence Kobin was the wife of Henry V. Kobin. The Goodmans and Kobin set up the following trusts:
+----------------------------------------------------------------------------+ ¦ ¦Date of ¦ ¦Original ¦Successor ¦Successor ¦ ¦Trust ¦trust ¦Grantor ¦trustee ¦trustee ¦trustee ¦ ¦ ¦indenture ¦ ¦ ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Elliot R. ¦ ¦ ¦ ¦ ¦ ¦ ¦Goodman: ¦ ¦ ¦ ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Trust No. 1 ¦May 31, ¦L. L. ¦L. L. Goodman ¦Security Trust¦C. E. ¦ ¦ ¦1929 ¦Goodman ¦ ¦ ¦Stevens ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦ ¦and E. ¦ ¦Co. to 12/21/ ¦ ¦ ¦ ¦ ¦M. ¦to 9/30/41. ¦42. ¦todate. ¦ ¦ ¦ ¦Goodman ¦ ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦July 1, ¦L. L. ¦J. A. Goodman ¦Security Trust¦C. E. ¦ ¦Trust No. 2 ¦1940 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Jan. 2, ¦L. L. ¦Security Trust¦C. E. Stevens ¦ ¦ ¦Trust No. 3 ¦1942 ¦Goodman ¦Co. to 12/21/ ¦to date. ¦ ¦ ¦ ¦ ¦ ¦42. ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Jan. 2, ¦L. L. ¦Security Trust¦C. E. Stevens ¦ ¦ ¦Trust No. 4 ¦1942 ¦Goodman ¦Co. to 12/21/ ¦to date. ¦ ¦ ¦ ¦ ¦ ¦42. ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Sue Ellen ¦ ¦ ¦ ¦ ¦ ¦ ¦Goodman: ¦ ¦ ¦ ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦July 25, ¦L. L. ¦Esther Goodman¦Security Trust¦C. E. ¦ ¦Trust No. 1 ¦1931 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Oct. 14, ¦L. L. ¦J. A. Goodman ¦Security Trust¦C. E. ¦ ¦Trust No. 2 ¦1940 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Oct. 8, ¦L.L. ¦Security Trust¦C. E. Stevens ¦ ¦ ¦Trust No. 3 ¦1941 ¦Goodman ¦Co. to 12/21/ ¦to date. ¦ ¦ ¦ ¦ ¦ ¦42. ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Robert A. ¦Apr. 27, ¦J. A. ¦Sarah Goodman ¦Security Trust¦C. E. ¦ ¦Goodman: Trust¦1931 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦No. 1. ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Ruth Elaine ¦ ¦ ¦ ¦ ¦ ¦ ¦Goodman: ¦ ¦ ¦ ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Apr. 27, ¦J. A. ¦Sarah Goodman ¦Security Trust¦C. E. ¦ ¦Trust No. 1 ¦1931 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Oct. 14, ¦J.A. ¦A. J. Barskin ¦Security Trust¦C. E. ¦ ¦Trust No. 2 ¦1940 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Jacqueline ¦ ¦ ¦ ¦ ¦ ¦ ¦Goodman: ¦ ¦ ¦ ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Apr. 27, ¦J. A. ¦Sarah Goodman ¦Security Trust¦C. E. ¦ ¦Trust No. 1 ¦1931 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦July 1, ¦J. A. ¦A.J. Barskin ¦Security Trust¦C. E. ¦ ¦Trust No. 2 ¦1940 ¦Goodman ¦to 9/30/41. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Oct. 8, ¦J. A. ¦Security Trust¦C. E. Stevens ¦ ¦ ¦Trust No. 3 ¦1941 ¦Goodman ¦Co. to 12/21/ ¦to date. ¦ ¦ ¦ ¦ ¦ ¦42. ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Jan. 2, ¦J. A. ¦Security Trust¦C. E. Stevens ¦ ¦ ¦Trust No. 4 ¦1942 ¦Goodman ¦Co. to 12/21/ ¦to date. ¦ ¦ ¦ ¦ ¦ ¦42. ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦ ¦Jan. 2, ¦J. A. ¦Security Trust¦C. E. Stevens ¦ ¦ ¦Trust No. 5 ¦1942 ¦Goodman ¦Co. to 12/21/ ¦to date. ¦ ¦ ¦ ¦ ¦ ¦42. ¦ ¦ ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Anne Kobin ¦June 3, ¦H. V. ¦H. V. Kobin to¦Security Trust¦C. E. ¦ ¦Trust. ¦1932 ¦Kobin ¦1/1/42. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +--------------+-----------+--------+--------------+--------------+----------¦ ¦Wm. Kobin ¦June 3, ¦H. V. ¦H. V. Kobin to¦Security Trust¦C. E. ¦ ¦Trust ¦1932 ¦Kobin ¦1/1/42. ¦Co. to 12/21/ ¦Stevens to¦ ¦ ¦ ¦ ¦ ¦42. ¦date. ¦ +----------------------------------------------------------------------------+
The Goodmans sold their stock interests in Real Silk in 1937, and in or about September 1937 they organized Industries at Grenada, Mississippi. An executive committee, appointed by Industries' board of directors, consisted only of J. A. Goodman and L. L. Goodman, and it guided and advised Industries, arranging for the acquisition of facilities by Industries and for the extension of bank credit to Industries.
Stevens was placed in charge of Industries' accounting affairs. L. L. Goodman became treasurer of National and supervised all its financial affairs, and J. A. Goodman became president of National and assumed supervision of the manufacturing, dyeing, and finishing at National of its own hosiery. During the years involved, Kobin was vice-president and general sales manager of National.
qualifying shares.
This committee appears to have been in existence and still functioning by 1944. Industries' returns for its fiscal year ending 1944 show administrative expense of $4,200.04 attributable to the executive committee. 3. SEC. 45. ALLOCATION OF INCOME AND DEDUCTIONS.In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Commissioner is authorized to distribute, apportion, or allocate gross income or deductions between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.Section 45 was amended by Section 128 of the Revenue Act of 1943 (c. 63, 58 Stat. 21) as follows:Section 128(b). TECHNICAL AMENDMENT.— Section 45 (relating to allocation of income and deductions) is amended by striking out ‘gross income or deductions‘ and inserting in lieu thereof ‘gross income, deductions, credits, or allowances.‘Section 128(c). TAXABLE YEARS TO WHICH APPLICATION.— The amendments made by this section shall be effective with respect to taxable years beginning after December 31, 1943. The determination of the law applicable to prior taxable years shall be made as if this section had not been enacted and without inferences drawn from the fact that the amendment made by this section is not expressly made applicable to prior taxable years. 4. In an attempt to show Solar's independence, petitioners presented testimony that in one instance Solar vigorously complained about the repairing of certain of Industries' defective hosiery by National at Indianapolis rather than returning the hosiery to Grenada where it could have been repaired at lower cost by non-union labor. That incident surely does not establish or even indicate that Solar was not at all times subject to the complete domination of the Goodmans and Kobin. For, if Solar were correct in his contention that the repairing of the defective hosiery in Indianapolis resulted in higher costs, it is only too clear that the Goodmans and Kobin, as well as Barskin, would have acquiesced in his position. He was sponsoring a position that was in any course of action contrary to the considered judgment of the Goodmans and Kobin and antagonistic to the interests which they were protecting.
When Solar left Real Silk in the same year, he also became associated with National; he took charge of its purchases of raw materials, and in this connection had close contact with its production activities. In the discharge of his duties at National, he was responsible to J. A. Goodman. In the early part of 1938, Solar paid several visits to Industries' plant at Grenada to advise on difficulties in production which were being experienced. These visits were made at the request of J. A. Goodman. In about May or June 1938, Solar became general manager of Industries, and subsequently, in 1940, he became its president and held that office until about 1945.
Industries' plant was established at Grenada through an arrangement by which that city provided building facilities at a nominal rental, subject to certain minimum requirements as to employment and operations. Industries engaged in the manufacturing of hosiery in the grey. It lacked dyeing and finishing facilities, and did not have a sales organization. The machinery with which the plant was equipped was purchased by J. A. and L. L. Goodman and leased by them to Industries. It was a new type of knitting machinery imported from Europe. At that time the common method of manufacture of ladies' hosiery consisted of knitting the leg on one machine, and then transferring the leg to another machine which knitted the foot, resulting in a ‘double-unit‘ stocking. The machinery installed at Industries' plant, however, was equipped to knit the entire stocking in one operation on a single machine, producing a ‘single-unit‘ stocking. In 1938 Industries began operations experimentally in this new type stocking, working with employees new and inexperienced in the manufacture of this type of hosiery. During this period J. A. Goodman advised Industries respecting the design of this hosiery. Industries did not get into substantial operations until some time in 1938.
Industries' first operations were in silk hosiery, but it later began to work with nylon. However, nylon yarn was not readily obtainable, but the Goodmans, who enjoyed the confidence of the du Pont company which controlled the source of nylon, were able to obtain such yarn for Industries.
The capacity of National's dyeing and finishing facilities exceeded the quantity of its own grey goods production, and National used those facilities to process hosiery in the grey manufactured by other mills. Industries entered into an agreement with National, dated April 12, 1938, for the dyeing and finishing of Industries' hosiery by National, and thereafter substantially all Industries' hosiery was dyed and finished at National's plant at Indianapolis. J. A. Goodman and Barskin executed the agreement for National as president and secretary respectively, and J. B. Perry, as president, and E. L. Morrow, as secretary, executed the agreement for Industries. It provided:
(1) Said First Party (Industries) agrees from time to time to ship the incompleted hosiery to the factory of said Second Party (National) at Indianapolis, Indiana.
(2) Said Second Party agrees to process and complete such hosiery in accordance with such instructions as said First Party may from time to time give to said Second Party.
(3) First Party's hosiery when completed and processed shall be held by said Second Party subject to orders of disposition which said First Party shall from time to time deliver to said Second Party.
(4) The charge for said Second Party's services shall be based upon the schedules of charges which said Second Party shall have in effect throughout the term of this agreement, or any renewals thereof.
(5) Second Party shall make no charge whatsoever for storing First Party's hosiery, either complete or incomplete. Title to First Party's hosiery, whole on the premises of said Second Party, shall remain vested in said First Party.
(6) Second Party, at the request of First Party, in addition to processing and completing such hosiery, shall perform such other services in connection therewith as said First Party may require, such as boxing, shipping, etc., and said First Party shall pay said Second Party for such additional services any additional cost and expense accruing by reason of such services.
(7) Second Party shall cause First Party's hosiery to be covered by insurance against loss or damage by fire and water, and to be secured by such other types of insurance as said Second Party may deem desirable. Such policies of insurance shall be paid to said First and Second Parties as their interests may appear. Any increase in the cost of Second Party's insurance by reason of this provision shall be borne by said First Party.
(8) All moneys owing to said Second Party by said First Party by reason of any of the terms and conditions enumerated in this agreement shall be payable on or before the 10th day of the month next succeeding that in which said indebtedness was incurred.
The common stock of National (19,450 shares outstanding) and Industries (1,000 shares outstanding), for the periods indicated, was held as follows:
+-------------------------------------------------------------------------+ ¦NATIONAL ¦ +-------------------------------------------------------------------------¦ ¦Period ¦7/1/40 to ¦9/30/41 to¦1/2/42 ¦ +----------------------------------------+----------+----------+----------¦ ¦ ¦9/30/41 ¦12/31/41 ¦et seq. ¦ +----------------------------------------+----------+----------+----------¦ ¦J. A. Goodman family: ¦Per cent ¦Per cent ¦Per cent ¦ +----------------------------------------+----------+----------+----------¦ ¦Sarah W ¦35 ¦9.18 ¦9.18 ¦ +----------------------------------------+----------+----------+----------¦ ¦Robert A. Trust #1 ¦ ¦23 ¦23 ¦ +----------------------------------------+----------+----------+----------¦ ¦Ruth Elaine Trust #1 ¦ ¦2.82 ¦2.82 ¦ +----------------------------------------+----------+----------+----------¦ ¦Total ¦35 ¦35 ¦35 ¦ +----------------------------------------+----------+----------+----------¦ ¦L. L. Goodman family: Elliot R. Trust #1¦35 ¦35 ¦35 ¦ +----------------------------------------+----------+----------+----------¦ ¦Kobin family: ¦ ¦ ¦ ¦ +----------------------------------------+----------+----------+----------¦ ¦Anne Trust ¦6 2/3 ¦6 2/3 ¦9.63 ¦ +----------------------------------------+----------+----------+----------¦ ¦William Trust ¦6 2/3 ¦6 2/3 ¦9.12 ¦ +----------------------------------------+----------+----------+----------¦ ¦Florence S ¦6 2/3 ¦6 2/3 ¦1.23 ¦ +----------------------------------------+----------+----------+----------¦ ¦Total ¦20 ¦20 ¦20 ¦ +----------------------------------------+----------+----------+----------¦ ¦H. V. Kobin ¦(1 ) ¦(1 ) ¦(1 ) ¦ +----------------------------------------+----------+----------+----------¦ ¦Barskin ¦10 ¦10 ¦10 ¦ +-------------------------------------------------------------------------+
INDUSTRIES Period 7/1/40 to 9/30/41 to 1/2/42 9/30/41 12/31/41 et seq. J. A. Goodman family: Per cent Per cent Per cent Sarah W 35 Robert A. Trust #1 18.5 18.5 Ruth Elaine Trust #1 14.7 14.7 Jacqueline Trust #1 1.8 1.8 Total 35 35 35 L. L. Goodman family: Elliot R. Trust #1 35 35 35 Kobin family: Anne Trust 6.7 6.7 10 William Trust 6.7 6.7 10 Florence S 6.6 6.6 Total 20 20 20 Barskin 10 10 10
Both National and Industries had preferred stock outstanding, which did not appear to play a significant part in the control of either corporation. The preferred stock outstanding, on the dates indicated, was held as follows:
+-----------------------------------------------------------------------------+ ¦NATIONAL ¦ +-----------------------------------------------------------------------------¦ ¦Years ending ¦12/31/37, 12/31/38, 12/31/39,¦12/31/41, 12/31/42, 12/31/43,¦ ¦ ¦12/31/40 ¦12/31/44 ¦ +-----------------+-----------------------------+-----------------------------¦ ¦J. A. Goodman ¦ ¦ ¦ ¦family: ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦Sarah W ¦97 1/2 ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦Jacqueline Trust ¦ ¦97 1/2 ¦ ¦#1 ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦ ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦L. L. Goodman ¦ ¦ ¦ ¦family: ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦L. L. Goodman, ¦127 1/2 ¦ ¦ ¦trustee ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦Sue Ellen Trust #¦ ¦127 1/2 ¦ ¦1 ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦ ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦Kobin family: ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦Anne Trust ¦40 1/2 ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦William Trust ¦40 1/2 ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦Florence S ¦40 1/2 ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦ ¦ ¦ ¦ +-----------------+-----------------------------+-----------------------------¦ ¦Barskin ¦91 1/2 ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦INDUSTRIES ¦ +-----------------------------------------------------------------------------¦ ¦Years ending ¦12/31/ ¦12/31/39, 12/31/¦12/31/41, 12/31/42, 12/31/43, 12/¦ ¦ ¦38 ¦40 ¦31/44 ¦ +------------------+-------+----------------+---------------------------------¦ ¦J. A. Goodman ¦ ¦ ¦ ¦ ¦family: ¦ ¦ ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦J. A. Goodman ¦185 ¦315 ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦Sarah W ¦ ¦345 ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦Ruth Elaine Trust ¦ ¦ ¦97 ¦ ¦#1 ¦ ¦ ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦Jacqueline Trust #¦ ¦ ¦563 ¦ ¦1 ¦ ¦ ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦ ¦ ¦ ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦L. L. Goodman ¦ ¦ ¦ ¦ ¦family: ¦ ¦ ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦L. L. Goodman ¦ ¦30 ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦Esther M ¦ ¦65 ¦57 ¦ +------------------+-------+----------------+---------------------------------¦ ¦Elliot R. Trust ¦ ¦380 ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦Sue Ellen Trust #1¦ ¦ ¦418 ¦ +------------------+-------+----------------+---------------------------------¦ ¦ ¦ ¦ ¦ ¦ +------------------+-------+----------------+---------------------------------¦ ¦Dorothy G. Adler ¦90 ¦90 ¦90 ¦ +-----------------------------------------------------------------------------+
Grenada Knitting Mills, Inc. (hereinafter referred to as ‘Knitting‘), was a corporation organized under Indiana law in or about March 1938. The Goodmans participated in the organization of Knitting. Knitting employed both J. A. and L. L. Goodman, and the Goodmans held executive office in Knitting and were responsible for its management. On September 8, 1939, Knitting had 100 shares of stock outstanding, which had been issued as follows: 35 shares to the wife of J. A. Goodman; 35 shares to a trust for L. L. Goodman's son (Elliot R. Goodman Trust No. 1); 6 2/3 shares to each of the trusts for Kobin's two children (Anne Kobin Trust and William Kobin Trust), and 6 2/3 shares to Kobin's wife; and 10 shares to Barskin.
Knitting did not at any time have any machinery, mill, finishing plant, or any production facilities whatever, nor did it have a sales force. It had no inventory, nor did it at any time purchase or acquire any hosiery for resale, or otherwise. It had no officers or employees who were not also officers or employees of Industries or National. By oral agreement, some time prior to June 30, 1940, the Goodmans, representing Knitting, undertook to furnish to Industries their ideas as to merchandising, styling, and design of the hosiery to be made by Industries. They also undertook to find a market for Industries' hosiery, as finished and dyed by National; such market consisted of several large purchasers, such as Sears, Roebuck and Company, procured directly by the Goodmans, as well as a large number of smaller purchasers who were obtained by National's sales organization. Industries was to receive only the fair market price for its hosiery in the grey (plus reimbursement for any finishing or dyeing charges that it may have paid to National). Knitting was to be compensated by retaining what was left from the full price paid by the ultimate purchasers of the finished product, after subtracting the price for the hosiery in the grey which Knitting transmitted to Industries and after subtracting also the costs of dyeing, finishing, and selling which were paid to National. Title to the hosiery remained in Industries at all times until it passed to the purchaser. Neither Knitting nor National purchased the hosiery from Industries. Knitting did not guarantee that it would furnish a market for Industries' products and that Industries could reasonably count upon receiving a fair price for its hosiery. In connection with making available National's sales organization to sell Industries' finished products to the trade, Knitting entered into a written agreement with National dated January 14, 1939. The agreement was signed for National by J. A. Goodman as president and by Barskin as secretary, and for Knitting by George P. Doyle as president and Samuel J. Mantel as secretary. Mantel was a lawyer who represented the Goodmans at various times. The agreement provided:
WHEREAS, the parties hereto have found it to be more economical to have one group of salesmen engaged in selling the products of the parties hereto, rather than having separate groups sell such products; and
WHEREAS, it is to the mutual interests of the parties hereto that purchasers of the products of said parties receive one billing for the merchandise so purchased; and
WHEREAS, said First Party (National) has no interest of any nature whatsoever in the proceeds of the sales of Second Party's (Knitting) merchandise, and Second Party has no interest whatsoever in the proceeds of the sales of First Party's merchandise;
NOW, therefore, in consideration of the sum of One Dollar paid by each of the parties hereto to the other and other valuable considerations, receipt of which is hereby acknowledge, and in the future consideration of the covenants and promises hereinafter set out, it is agreed as follows:
(1) All merchandise sold by salesmen who may jointly represent the First and Second Parties hereto shall be billed by the party in whose name such order is placed.
(2) All expenses incident to the filling of such orders shall be prorated between the parties hereto in accordance with the expense incident to the shipping of such party's merchandise.
(3) The party receiving any remittance in payment of any such merchandise so billed shall hold that part of such remittance(s) representing payment of the merchandise of the other party in trust, and within 10 days of the receipt of such remittance(s) shall deliver such trust receipts to the other party.
(4) In the event it shall become necessary to institute any legal action for the collection of any of the accounts, then in such event that party in whose name such merchandise has been billed shall institute such legal actions and prosecute same to their termination. The expense of such legal actions shall be prorated between the parties hereto in accordance with their financial interest in the accounts involved.
(5) In the event that any buyers may make claims against either of the parties hereto by reason of defects in the merchandise shipped, or otherwise, no adjustment shall be made except with the consent of that party whose merchandise is involved.
(6) Any and all expenses of any nature whatsoever incurred by either of the parties hereto by reason of this agreement, or any of the terms and conditions herein enumerated, shall be prorated in accordance with the actual interest of the parties hereto.
Although the foregoing agreement purported to deal with products belonging to National and Knitting, such was not the fact: Knitting had no products; the products attributed to Knitting belonged to Industries, and the agreement in fact dealt with the products of National and Industries. It was only the oral agreement between Industries and Knitting, mentioned above, that furnished the basis for Knitting's entering into the written agreement with National.
Such business activity as Knitting carried on was discontinued on or about June 30, 1940, although Knitting was not dissolved. It was succeeded in that activity by Grenada Hosiery Mills (hereinafter referred to as ‘Hosiery ‘). Hosiery was organized as a partnership, under Indiana law, pursuant to articles of partnership dated July 1, 1940. Knitting was replaced by Hosiery because it was believed that Knitting's small capital put it at a disadvantage under the excess profits tax, applicable to corporations, adopted in 1940. Knitting assigned to Hosiery its interest in the written agreement of January 14, 1939, between National and Knitting; National consented to the assignment, and Hosiery agreed to comply with the terms and conditions of the agreement.
The Goodmans participated in the decision to replace Knitting by Hosiery, as did Stevens. The Goodmans and Kobin were not partners of record in Hosiery, just as they had not been stockholders of record in Knitting. But the Hosiery partnership agreement was executed by J. A. Goodman as trustee for the son of L. L. Goodman (Elliot Goodman Trust No. 2); Barskin as trustee for a daughter of J. A. Goodman (Jacqueline Goodman Trust No. 2); Kobin as trustee for his children (Ann Kobin Trust and William Kobin Trust), and as attorney-in-fact for his wife; and Barskin as an individual.
The partnership interests in Hosiery, for the periods indicated, were as follows:
+-----------------------------------------------------------------------------+ ¦Period ¦7/1/40 to ¦9/30/41 to¦1/2/42 to ¦7/17/43 ¦ +---------------------------------+----------+----------+----------+----------¦ ¦ ¦9/30/41 ¦12/31/41 ¦7/17/43 ¦et seq. ¦ +---------------------------------+----------+----------+----------+----------¦ ¦ ¦Per cent ¦Per cent ¦Per cent ¦Per cent ¦ +---------------------------------+----------+----------+----------+----------¦ ¦J. A. Goodman family: Jacqueline ¦35 ¦35 ¦35 ¦31.82 ¦ ¦Trust #2 ¦ ¦ ¦ ¦ ¦ +---------------------------------+----------+----------+----------+----------¦ ¦L. L. Goodman family: Elliot R. ¦35 ¦35 ¦35 ¦31.82 ¦ ¦Trust #2 ¦ ¦ ¦ ¦ ¦ +---------------------------------+----------+----------+----------+----------¦ ¦Kobin family: ¦ ¦ ¦ ¦ ¦ +---------------------------------+----------+----------+----------+----------¦ ¦Anne Trust ¦6 2/3 ¦6 2/3 ¦6 2/3 ¦6.06 ¦ +---------------------------------+----------+----------+----------+----------¦ ¦William Trust ¦6 2/3 ¦6 2/3 ¦6 2/3 ¦6.06 ¦ +---------------------------------+----------+----------+----------+----------¦ ¦Florence S ¦6 2/3 ¦6 2/3 ¦6 2/3 ¦6.06 ¦ +---------------------------------+----------+----------+----------+----------¦ ¦Total ¦20 ¦20 ¦20 ¦18.18 ¦ +---------------------------------+----------+----------+----------+----------¦ ¦Barskin ¦10 ¦10 ¦10 ¦9.09 ¦ +---------------------------------+----------+----------+----------+----------¦ ¦Solar family: Ronia L. (wife of ¦ ¦ ¦ ¦9.09 ¦ ¦Israel E. Solar) ¦ ¦ ¦ ¦ ¦ +-----------------------------------------------------------------------------+
The Hosiery partnership agreement provided:
(4) By reason of the fact that A. J. Barskin is a partner in such Grenada Hosiery Mills, and is Trustee for the Jacqueline Goodman Trust, owner of an interest in such partnership, and in order to avoid any conflict of interest which may arise, A. J. Barskin hereby designates and appoints L. L. Goodman as representative (for the purpose of this agreement only) of the interest of said Jacqueline Goodman Trust.
(5) All checks, notes and other evidences of indebtedness pertaining to the partnership may be executed for and on behalf of said partnership, by J. A. Goodman, L. L. Goodman, H. V. Kobin and A. J. Barskin, or by any nominee or designee which any of them may name in writing. The salaries to be paid to any partner or employee of said partnership shall be based upon services rendered to said partnership and contribution to the administration and success of the business and shall be in such amounts as may from time to time be determined by said partners.
(6) All expenses pertaining to the operation of said partnership shall be borne, paid and discharged by the parties hereto in the following ratio: By the First Party (J. A. Goodman, as trustee) 35%; by the Second Party (Barskin, as trustee) 35%; by the Third Party (Kobin, as trustee and attorney) 20%; and by the Fourth Party (Barskin) 10%; and all gains, profits and increases that shall come or arise from or by means of such partnership business shall accrue to the parties hereto in such percentages, and all losses resulting from depreciation, bad debts or otherwise, shall be borne and paid by the parties hereto, in accordance with such percentages.
(13) The business policy of this partnership shall be determined by J. A. Goodman, Trustee, L. L. Goodman, H. V. Kobin, Trustee, and A. J. Barskin, each of whom shall have as many votes as the percentage of interest owned by him bears to the total interests of all partners. The majority (based on percentage) shall prevail. * * *
Paragraph 13 of the Hosiery partnership agreement was amended to read as follows by a written agreement dated September 22, 1941:
(13) The business policy of this partnership shall be determined by J. A. GOODMAN, L. L. GOODMAN, H. V. KOBIN and A. J. BARSKIN, who shall be designated as ‘Policy Makers.‘ In determining such business policy J. A. Goodman shall have 35 votes; L. L. Goodman shall have 35 votes, H. V. Kobin shall have 20 votes; and A. J. Barskin shall have 10 votes. The majority (based on percentage) of all votes shall prevail. * * *
The Parties hereto agree that the management of the business affairs of the partnership requires the services of those experienced in the business to be engaged in by this partnership. Accordingly, it is agreed that in the event any of the parties hereto shall dispose of his interest in this partnership, the assignee of such interest shall not be entitled to have a voice in the business policy of this partnership nor shall any heir, executor, administrator, successor, or assign, have any right to participate in the determination of the business policy of this partnership unless and until the Policy Makers then retaining voting power shall consent thereto in writing.
By a written agreement dated July 17, 1943, Ronia L. Solar, wife of Solar, was formally made a partner in Hosiery to the extent of a 9.09 per cent interest, and the interest of the other partners were proportionately modified.
Capital was not a factor in the operation of either Knitting or Hosiery. Hosiery's capital at its organization consisted of $4,286.25 in notes receivable contributed for or by its partners. Two of these notes, for $1,500 each, were issued by J. A. and L. L. Goodman and were given by them to the respective trusts for their children which became partners of record in Hosiery. No cash was included in the original investment in Hosiery. On or about May 17, 1941, these notes were paid by their makers in the face amount, $4,286.25. On or about the same date, May 17, 1941, the partners withdrew cash from Hosiery in the total amount of $25,000, the withdrawal of each partner being proportionate to his respective partnership interest.
As in the case of Knitting, Hosiery did not at any time own, lease, or use any machinery, mill, finishing plant, or production facilities, it had no inventory nor did it at any time purchase or acquire any hosiery for resale, or otherwise; it had no sales force, but both Knitting and Hosiery relied upon National's sales organization, which was supervised by Kobin, to sell hosiery manufactured and owned by Industries. Hosiery's business address, as reported on its partnership tax returns, was the same as that of National. There were no persons employed by either Knitting or Hosiery who were not also employed by Industries or National. Both Knitting and Hosiery were dependent on the service of the Goodmans and Kobin, who continued to serve Hosiery as they had Knitting.
A written agreement was entered into between Hosiery and Industries dated June 24, 1940. In making this agreement, Industries was represented by Solar, and Hosiery was represented by the Goodmans. The agreement provided:
WHEREAS, Industries maintains a plant in the City of Grenada, County of Grenada, State of Mississippi, in which it partially manufactures hosiery up to the stage in process known as ‘in the greige‘; and
WHEREAS, Mills (Hosiery) is a partnership thoroughly competent in all phases of the sale, manufacture and merchandising of hosiery; and
WHEREAS, Industries does not wish to create its own sales organization and merchandising plan, and does not have the facilities for finishing its hosiery.
Article I
Industries will manufacture hosiery to the state of process known as ‘in the greige‘ to the standard and specifications recommended by Mills.
Article II
Mills will supervise the finishing, merchandising and sale of such hosiery either by developing the facilities for so doing, or be engaging facilities for the purpose. However, Mills shall not engage or enter into any contract for such facilities unless the terms and conditions of such engagement, and/or, contracts have been approved by Industries.
Article III
When Mills engages or contracts with other facilities for the purpose of finishing or merchandising, the expense thereof, may, at the discretion of Mills, be charged either directly to Industries by such facilities, or paid for by Mills, in the latter of which event, Industries shall reimburse Mills for such expense. In either event, such expense shall be added to the ‘cost of sales‘ of Industries, as hereinafter defined.
Article IV
Any expense incurred in connection with the sale of the products of Industries, shall be borne by Mills and if incurred by Industries, shall be charged to Mills and shall be deducted by Mills from proceeds of sales in arriving at ‘net sales proceeds‘ as hereinafter defined.
Article V
Mills agrees to make available immediately to Industries upon request, the entire proceeds of sales of Industries' products which Mills received, less such disbursements as Mills may make in connection with the expense incidental thereto, (including such payments as Mills makes to Industries in payment of charges incurred under Article IV hereunder), or such other expense as Mills may incur for the account of Industries in connection with merchandising and finishing. It is agreed by both parties that Mills does not, by so doing, surrender its right to compensation as hereinafter set forth.
Article VI
For the supervision of the finishing, merchandising and sale of Industries' products, Mills shall be compensated for its services in the manner set forth in this agreement and according to the following formula:
(A) To the cost of manufacturing, including administration costs, and all costs incidental to the operating of its business, Industries shall add such charges as have been made by Mills under Article III of this agreement and shall thereby arrive at a ‘cost of sales‘.
(B) From the gross proceeds of sales of Industries' products, Mills shall deduct such trade discounts as have been granted to customers, and such losses as have been sustained by ‘bad debts‘, and the expense involved in selling the products of Industries, and shall thereby arrive at a ‘net sales proceeds‘.
(C) In the event that Industries' ‘Cost of sales‘ are equal to or in excess of Mills' ‘net sales proceeds‘, then Industries shall bill Mills for the full amount of Mills' ‘net sales proceeds‘ according to Mills' books and Mills shall receive no compensation for its services.
(D) In the event Industries' ‘cost of sales‘, as heretofore described, are less than Mills' ‘net sales proceeds‘, then a computation shall be made of the difference between the two for the purpose of determining the proportion that is 1. Attributable to efficiency in greige manufacturing, or other operations performed and/or supervised by Industries. 2. Attributable to low cost and efficient finishing as supervised by Mills. 3. Attributable to a fair and reasonable estimate of the value of any merchandising plans that have, or shall have been developed by Mills. 4. Attributable to efficient selling as supervised by Mills.
(E) Industries shall forthwith bill Mills for its ‘cost of sales‘ as described in Paragraph A of this Article, plus the amount that has been allocated as attributable to efficiency in greige manufacturing, or other operations performed and/or supervised by Industries, as described in Paragraph D-1, and the balance between this amount and Mills' ‘net sales proceeds‘ shall be accrued on the books of Industries to the benefit of Mills, and shall, upon request, be paid to Mills.
Article VII
For the purpose of making the computation in Article VI, paragraph D, Mills shall be represented by Mr. L. L. Goodman, or in the event of his failure or inability to serve, Mr. J. A. Goodman, Mr. H. V. Kobin, and Mr. A. J. Barskin, in the order named, and Industries shall be represented by Mr. I. E. Solar, or in the event of his failure or inability to serve, by Mr. Samuel J. Mantel, and Mr. J. B. Perry, Jr., in the order named.
Article VIII
In the event that the representatives of each of the parties shall fail to come to an agreement acceptable to both of them, then they shall select a third party, mutually agreeable to both of them, as arbitrator, and his decision shall be final and binding on both parties.
Article IX
Nothing in this agreement shall exclude Industries, at any time, from making such provisions as it may decide to make for finishing or selling its own products, but Industries agrees that the merchandising rights shall be exclusively granted to Mills for the term of this agreement.
Article X
The computation described in Article VI, Paragraph D, shall be made at least once annually as of the close of business of the fiscal year of Mills, but can be made more often, if convenient and agreeable to both parties.
Article XI
This agreement shall expire on the 30th day of June, 1945.
The Industries-National agreement did not fix specific charges for the services to be performed by National, but left the charges to be worked out in the future according to such criteria as were mentioned in the provisions quoted from the agreement. Periodically the amounts owned by Industries to National were settled by agreement between them, and in the settlement of these amounts Industries was represented by Solar and National was represented by L. L. Goodman and Kobin. On occasion, J. A. Goodman also participated in the settlement of these amounts.
While the National-Knitting agreement, later taken over by Hosiery, provided that expenses incident to filling of orders should be prorated between the parties, it did not describe the expenses with any particularity and was ambiguous as to the manner in which proration was to be made. When there was any question as to allocation of such expenses, the matter was submitted to Stevens. Usually, however, there was no dispute. The amounts which were allocated to Hosiery are evidenced by Hosiery's partnership returns. Those returns, for the fiscal periods 1942-1943 and 1943-1944, respectively, report ‘other deductions‘ of $72,264.53 and $42,302.88, and these sums are explained on the returns as including sales expense billed by National in the amounts of $70,764.46 and $40,691.14 for those respective periods. ‘Other deductions‘ were reported in the returns for 1940-1941 and 1941-1942, without breakdown, in the respective amounts of $112,028.98 and $122,595.64.
The Industries-Hosiery agreement, in providing for the division of proceeds derived from the sale of the finished product, used such flexible terms as ‘efficiency in greige manufacturing,‘ ‘low cost and efficient finishing as supervised by Mills,‘‘efficient selling as supervised by Mills, ‘ and ‘a fair and reasonable estimate of the value of any merchandising plans * * * developed by Mills.‘ Such terms remained to be interpreted, and in the settlement between the parties their interpretation and specific application was left to Stevens, who was given a free hand in this regard although he might consult with such persons as L. L. Goodman and Kobin. In practice, an agreement was always reached as to the amounts to be paid Industries.
The relationships between Industries, Hosiery, and National developed as follows: Industries manufactured hosiery in the grey and shipped it to National for dyeing and finishing. The hosiery finished by National for Industries was kept by National separately from National's own hosiery. Except for the few large customers obtained directly by the Goodmans and Kobin, the Industries hosiery was sold by National's sales organization and by the same salesmen who sold National's hosiery. Customers were invoiced by National and usually in National's name, but some invoices were made out in Hosiery's name. Some customers made payment to Hosiery; others paid National. National deducted from the proceeds it received a charge for the use of its sales force, including therein an allocated portion of its sales expenses and an amount for a reasonable profit, and remitted the balance to Hosiery. National's charge for finishing and dyeing, consisting of the costs of finishing and dyeing plus a reasonable profit, was paid by Industries. Notwithstanding the provisions of Article VI of the agreement of June 24, 1940, Industries ‘billed‘ Hosiery for the hosiery in the grey, its charge consisting of an amount representing the fair market price for hosiery in the grey but in no event an amount less than the total costs of Industries attributable to production of the hosiery in the grey, plus the cost to it of dyeing and finishing the hosiery at National, plus such other charges as Industries might incur after the point of manufacture. The amount so ‘billed‘ was remitted to Industries by Hosiery out of the sales proceeds received from National, and the balance was retained by Hosiery as its ‘profit‘ or ‘compensation.‘ There were inter-company accounts between Hosiery and Industries, and when remittance by check was received by Hosiery from National, Hosiery in turn might endorse the check to Industries in liquidation of those accounts.
Although the hosiery in the grey was ‘billed‘ by Industries to Hosiery, and although there was reference in the evidence to the ‘price‘ paid by Hosiery for the hosiery and the ‘cost‘ to Hosiery of goods sold, Industries retained title to the hosiery when finished, and in fact, Hosiery never purchased or acquired any hosiery from Industries. The hosiery involved belonged to Industries, and was sold to the trade by National's sales organization, except in the case of several large purchasers (such as Sears, Roebuck & Co.) who dealt directly with the Goodmans or Kobin, purporting to represent Hosiery. But even in the latter situation it was Industries' hosiery that was being sold. The only other function performed by Hosiery in relation to Industries' product was to provide styling and ‘merchandising‘ services.
L. L. Goodman, J. A. Goodman, and Kobin, during the tax years here involved, rendered valuable services in the styling, merchandising, marketing, and selling of the hosiery produced by Industries. In rendering these services, the Goodmans and Kobin were acting as employees of Hosiery, and Hosiery provided these services to Industries. No other employees of Hosiery, if there were any, rendered any services of consequence in relation to Industries' product, nor did the partners of Hosiery render any such services.
Generally, a good price is available for hosiery in the grey when the market is strong, but such hosiery promptly feels the effect of a weakening in the market. When the demand for hosiery is weak, the seller of hosiery in the grey is at a disadvantage because of the lack of a brand name to support its selling power. Branded hosiery is better able to retain a market and maintain its prices. The services of the Goodmans and Kobin established brand names and a market for Industries' hosiery, assuring Industries of steady operation and the sale of its product in the finished market at the best prices, thereby reducing the insecurity and uncertainty otherwise attending the manufacture and sale of hosiery in the grey. The Goodmans and Kobin supervised the merchandising aspects of the manufacturing, dyeing and finishing operations so as to create products which most appealed to the public; they styled and designed the hosiery and were responsible for features being incorporated in the course of these operations which attracted the public; and they introduced and supervised sales ideas and programs which provided wide distribution for the finished hosiery. This was particularly important in view of the novelty of the single-unit hosiery Industries undertook to manufacture, the quality and worth of which had to be proven to the trade and a market for which had to be created.
During the tax years in question, the Goodmans and Kobin received salaries paid by Hosiery. The amounts of the salaries paid them by Hosiery were established with their agreement, and they took part in deciding what those amounts would be. The amounts so decided upon were considered fair salaries. For the fiscal year ended June 30, 1941, the partnership return of Hosiery disclosed salaries and wages in the aggregate amount of $82,908.44, substantially all of which was paid to the Goodmans and Kobin. The aggregate wages and salaries similarly paid by Hosiery for the succeeding fiscal years ending June 30, were as follows: 1942, $20,000; 1943, $8,151.29; 1944, $8,320.
During the years involved there were in the United States independent experts in the hosiery industry who provided merchandising and styling services for fees ranging from $10,000 to $25,000 a year.
Waste is a common by-product of the manufacture and processing of hosiery. Salvage of such waste in the manner earlier described is one of the phases of the hosiery industry. Ordinarily an individual mill does not have enough waste to justify organizing a salvage department. Most mills do not have their own salvage department, although Real Silk did have such a department.
Neither Industries nor National had such a department, and up to 1942 they sold their waste to dealers. By that time, however, nylon yarn, which had come into use in the manufacture of hosiery, was very scarce, and salvage operations therefore became increasingly important. In January 1942, Abar Process Company (hereinafter referred to as ‘Abar‘) was formed, as a partnership under Indiana law, to engage in the salvage of hosiery waste. The Goodmans and Kobin were instrumental in the formation of Abar, and Barskin, who was then associated with National, also became the operating head of Abar. The partners of record in Abar at the time of its formation were the two Goodman, Kobin's wife and Barskin. They executed a partnership agreement dated January 2, 1942, which provided:
THIS INDENTURE entered into this 2nd day of January, 1942, WITNESSETH AN AGREEMENT by and between J. A. GOODMAN, hereinafter referred to as First Party, L. L. GOODMAN, hereinafter referred to as Second Party, FLORENCE S. KOBIN, hereinafter referred to as Third Party, and A. J. BARSKIN, hereinafter referred to as Fourth Party, all of Indianapolis, Marion County, Indiana.
(3) The initial capital of this partnership shall be $1,000.00, of which the First and Second Parties agree to contribute $350.00 each, the Third Party $200.00, and the Fourth Party $100.00. Should further capital be required for carrying on the business, such additional capital shall be advanced by the partners in the above ratio. * * * .
(4) All checks, notes, and other evidence of indebtedness pertaining to the partnership may be executed, for and on behalf of said partnership, by J. A. Goodman, L. L. Goodman, A. J. Barskin, and H. V. Kobin, whom Florence S. Kobin has designated as her attorney-in-fact for such purpose, or by any nominee or designee which any of the foregoing may name in writing. The salaries to be paid to any partner or employee of said partnership shall be based upon services rendered to said partnership and contribution to the administration and success of the business, and shall be in such amounts as may from time to time be determined by said partners.
(5) All expenses pertaining to the operation of said partnership shall be borne, paid and discharged by the parties hereto in the following ratio: By the First Party 35%; by the Second Party 35%; by the Third Party 20%; and by the Fourth Party 10%; and all gains, profits and increases that shall come or arise from or by means of such partnership business shall accrue to the parties hereto in such percentage, and all losses resulting from depreciation, bad debts or otherwise, shall be borne and paid by the parties hereto, in accordance with such percentages.
(11) The First Party and the Second Party are each creating trusts and contemplate assigning to such trusts their respective interests in and to this partnership. Each of the partners hereby consent to such assignments upon the condition that the provisions of this partnership agreement shall be binding upon the trustees of such trusts, and upon the further provision that any distribution by the Trustees of such trusts shall, for the purpose of this agreement, be considered as a sale of a partnership interest, and shall be subject to the terms and conditions herein set out and pertaining to the sale of any partnership interest.
(12) The business policy of this partnership shall be determined by J. A. Goodman, L. L. Goodman, H. V. Kobin, as Attorney-in-Fact for Florence S. Kobin, and A. J. Barskin. In determining such policy J. A. Goodman and L. L. Goodman shall each have 35 votes, H. V. Kobin 20 votes, and A. J. Barskin 10 votes. The majority vote shall prevail. * * * .
It is the sense of this agreement that the business policy of this partnership shall be determined by those above designated, subject to the terms and conditions hereinabove set out, and that no heir, executor, administrator, successor, beneficiary, or assign shall have any right to participate in the determination of such policy unless and until those who still retain voting power shall in writing consent thereto.
Subsequently, Ronia Solar was made a partner of record in Abar to the extent of a 9.09 per cent interest by an agreement dated October 9, 1943, and the interests of the other partners were changed proportionately.
The interests of the partners of record in Abar, for the periods indicated, were as follows:
+---------------------------------------------------------------------------+ ¦Period ¦1/2/42 to 10/9/43¦10/9/43 et seq.¦ +-----------------------------------------+-----------------+---------------¦ ¦ ¦Per cent ¦Per cent ¦ +-----------------------------------------+-----------------+---------------¦ ¦J. A. Goodman family: Jacqueline Trust #5¦35 ¦31.82 ¦ +-----------------------------------------+-----------------+---------------¦ ¦L. L. Goodman family: Elliot R. Trust #4 ¦35 ¦31.82 ¦ +-----------------------------------------+-----------------+---------------¦ ¦Kobin family: ¦ ¦ ¦ +-----------------------------------------+-----------------+---------------¦ ¦Anne Trust ¦6 2/3 ¦6.06 ¦ +-----------------------------------------+-----------------+---------------¦ ¦William Trust ¦6 2/3 ¦6.06 ¦ +-----------------------------------------+-----------------+---------------¦ ¦Florence S ¦6 2/3 ¦6.06 ¦ +-----------------------------------------+-----------------+---------------¦ ¦Total ¦20 ¦18.18 ¦ +-----------------------------------------+-----------------+---------------¦ ¦Barskin ¦10 ¦9.09 ¦ +-----------------------------------------+-----------------+---------------¦ ¦Solar family: Ronia L ¦ ¦9.09 ¦ +---------------------------------------------------------------------------+
Abar's machinery consisted essentially of several old coning machines formerly used by National and Fulton Hosiery Mills (hereinafter referred to as ‘Fulton‘), adjusted to unravel and rewind yarn according to a method invented by Barskin. Fulton had been organized by the Goodmans who, by 1937, transferred their Fulton interests to their wives or to certain of the trusts for their children. Abar either did not acquire or did not retain ownership of the machines so used by it. Depreciation does not appear as a claimed deduction on the tax returns of Abar introduced in evidence.
After Abar was organized, Industries and National sold their waste to Abar, and purchased reclaimed yarn from Abar. The prices paid to and by Abar in these transactions were the established market prices. Abar also purchased waste from other sources, and, during the scarcity in materials, bought waste wherever it could be found. While Abar sold sold reclaimed yarn to other buyers, most of its sales of yarn were made to Industries, National, and Fulton. Defective hosiery purchased by Abar was mended by it and was finished by National, and then was sold by Abar to jobbers. National's charge to Abar for finishing this hosiery hosiery was at the prevailing market price.
During the tax years here in issue, separate books of account were kept for Industries, National, Hosiery, and Abar. Preparation and maintenance of their accounting records and reports were all under the control and supervision of Stevens at Indianapolis. The books of National, Hosiery, and Abar were kept at Indianapolis; the general ledgers of Industries were kept at Indianapolis and its subsidiary records, which were usually kept in Mississippi, at times were sent to Indianapolis. The tax returns of all these companies, including the returns of Industries, were prepared at Indianapolis under Stevens' direction. Stevens also prepared the Goodmans' tax returns, and advised the Goodmans and Kobin as to arrangement of their business affairs so as to incur the minimum taxes. The returns for the trusts created by them were also prepared by Stevens.
From at least July 1, 1940, to the last half of 1943, the J. A. Goodman, L. L. Goodman, and Kobin families and Barskin were the record owners of all the common stock of Industries and National, substantially all the preferred stock of Industries and National, and the entire partnership interests in Hosiery and Abar. During this period, the proportionate interests of the J. A. Goodman, the L. L. Goodman, the Kobin families, and Barskin were, with insignificant variation, identical in the common stock of Industries, the common stock of National, and in the Hosiery and Abar partnerships. These proportionate interests were as follows: J. A. Goodman family— 35 per cent; L. L. Goodman family— 35 per cent; Kobin family— 20 per cent; Barskin— 10 per cent.
These interests in the common stock of Industries and National continued unchanged during 1943 and throughout the remainder of the tax years here in issue. By a written agreement dated July 17, 1943, Solar's wife, Ronia, was admitted to a 9.09 per cent interest of record in Hosiery, and by a written agreement dated October 9, 1943, she was also admitted to a 9.09 per cent record interest in Abar. The other record interests in both Hosiery and Abar were then adjusted accordingly to the following: J. A. Goodman family—31.82 per cent; L. L. Goodman family— 31.82 per cent; Kobin family— 18.18 per cent; Barskin— 9.09 per cent.
The interests of the J. A. Goodman, L. L. Goodman, and Kobin families were held, as record owners, in the names of their wives or the trusts for their children. But those family interests were in fact owned or controlled directly or indirectly by J. A. Goodman, L. L. Goodman, and Kobin respectively. Similarly, when Ronia Solar was made a record partner in Hosiery and Abar, the interests ascribed to her were in fact owned or controlled directly or indirectly by her husband, Israel E. Solar. Thus, although Kobin's wife and the trusts for his two children were the record holders of an aggregate 20 per cent interest in National's common stock, the true situation was reflected in National's income tax returns for 1940 and 1942, which state that Kobin owned 20 per cent of the common stock of National.
The ultimate control over the management and operation of Industries, National, Hosiery and Abar, was exercised by J. A. Goodman, Goodman, L. L. Goodman, Kobin and Barskin.
None of the Goodman and Kobin children, whose trusts were record owners of interests in these businesses, ever had any experience or training in the hosiery industry, or took any part in the business affairs of Industries, National, Hosiery, or Abar. There is no evidence that the Goodman, Kobin, or Solar wives had any such experience or training or participated in the affairs of these businesses. The Goodmans and Kobin originally were the trustees under some of the trusts they set up for their children; by the end of 1942, Stevens was the sole trustee under all these trusts for the Goodman and Kobin children. Control of the accounting and tax affairs of all these businesses as well as of the trusts for the children was concentrated in Stevens.
Hosiery's ‘Gross receipts from business or profession‘ and its ‘net‘ income as reported on its returns, and its ‘net‘ income as adjusted by respondent, were as follows:
+---------------------------------------------------------+ ¦ ¦Gross receipts¦ ¦ ¦ +------------------+--------------+-----------+-----------¦ ¦ ¦from business ¦ ¦Net income ¦ +------------------+--------------+-----------+-----------¦ ¦Year ended June 30¦or profession ¦Net income ¦as adjusted¦ +------------------+--------------+-----------+-----------¦ ¦1941 ¦$1,933,429.92 ¦$101,928.57¦$103,486.30¦ +------------------+--------------+-----------+-----------¦ ¦1942 ¦1,628,582.38 ¦2,533.17 ¦4,033.24 ¦ +------------------+--------------+-----------+-----------¦ ¦1943 ¦1,203,672.35 ¦48,415.96 ¦49,916.38 ¦ +------------------+--------------+-----------+-----------¦ ¦1944 ¦1,585,425.38 ¦55,473.38 ¦55,473.38 ¦ +---------------------------------------------------------+
These reports of gross receipts consisted largely, if not entirely, of the receipts from the sales of Industries' hosiery, and belonged to Industries rather than to Hosiery. It was thus necessary, in computing net income on Hosiery's returns to subtract large amounts each year ($1,631,393.46 for 1941, $1,478,748.81 for 1942, $1,071.262.49 for 1943, and $1,492,153.36 for 1944) as the cost of ‘merchandise bought for sale,‘ notwithstanding the fact that Hosiery did not buy any goods for sale, and therefore had no such costs.
Abar reported the following net income in its returns:
+-----------------------------+ ¦Tax period ¦Net income ¦ +----------------+------------¦ ¦1/2/42-9/30/42 ¦$10,210.33 ¦ +----------------+------------¦ ¦10/1/42-9/30/43 ¦20,140.29 ¦ +----------------+------------¦ ¦10/1/43-9/30/44 ¦14,423.75 ¦ +-----------------------------+
Respondent attributed to Hosiery an annual allowance of 10 per cent on a capital of $4,286.25, amounting to $428.63, plus $1,000 as salary for Barskin. Respondent attributed to Abar an annual allowance of $1,000 on a capital of $1,000, plus a salary of $1,000 for Barskin. The remainder of Hosiery's adjusted income and Abar's reported income were allocated to Industries and National in the following amounts:
+----------------------------+ ¦ALLOCATED TO INDUSTRIES 1 ¦ +----------------------------¦ ¦ ¦From ¦From ¦ +-----+------------+---------¦ ¦Year ¦Hosiery ¦Abar ¦ +-----+------------+---------¦ ¦1941 ¦$62,068.57 ¦ ¦ +-----+------------+---------¦ ¦1942 ¦29,164.11 ¦$116.14 ¦ +-----+------------+---------¦ ¦1943 ¦30,189.53 ¦338.85 ¦ +-----+------------+---------¦ ¦1944 ¦45,893.73 ¦547.70 ¦ +----------------------------+
ALLOCATED TO NATIONAL 1940 $3,819.94 1941 6,329.43 1942 4,581.77 $12,335.43 1943 5,394.33 16,071.71
OPINION.
RAUM, Judge:
1. At the outset, we dispose of respondent's contention that the asserted deficiencies are supported by section 22(a) of the Internal Revenue Code. Throughout the argument based upon section 22(a) there is implicit the suggestion that the entities of Hosiery and Abar should be disregarded and that their income be attributed to Industries and National. We cannot accept that position.
Hosiery and Abar were functioning entities. Each in fact rendered valuable services. True, all four organizations were actually controlled by the same persons, and neither Hosiery nor Abar had any employees who were not also officers or employees of Industries or National, so that all of the functions discharged by Hosiery and Abar could have been performed just as readily by Industries and National. But the fact is that Hosiery and Abar were valid partnerships, and they they actually did play real parts in the hosiery business. Hosiery did furnish styling and merchandising services to Industries; Abar did engage in the business of salvaging defective hosiery. There is no basis, upon this record, for disregarding the organizational entities of Hosiery and Abar. Cf. Chelsea Products, Inc., 16 T.C. 840; Estate of Julius I. Byrne, 16 T.C. 1234; Seminole Flavor Co., 4 T.C. 1215, 1234-1235.
The income actually earned by Hosiery and Abar may not be attributed attributed to Industries or National under section 22(a). This does not mean, however, that either Industries or National was at liberty, taxwise, to deflect to Hosiery or Abar any portion of the income really earned by Industries or National. In such circumstances the general provisions of section 22(a) are undoubtedly sufficient to charge the income to the one that actually earned it. Cf., e.g., Lucas v. Earl, 281 U.S. 111; Griffiths v. Commissioner, 308 U.S. 355; Helvering v. Eubank, 311 U.S. 122; Commissioner v. Sunnen, 333 U.S. 591; Lyman A. Stanton, 14 T.C. 217, affd. (C.A. 7, 1941) 189 F.2d 297. But in the case of organizations under common control, the detailed provisions of section 45 of the Code
explicitly authorize the Commissioner to unscramble any such situation, so that income may be charged to the organization that earned it. Thus, to the extent that section 45 may be applicable, section 22(a) adds nothing to the strength of respondent's position here. We pass, therefore, to a consideration of section 45.
2. That all four organizations were ‘owned or controlled directly or indirectly by the same interests‘ within the meaning of section 45 is abundantly clear on this record. All four organizations were dominated primarily by the two Goodmans, and to a lesser degree by Kobin and Barskin. We are satisfied that Solar and Stevens were subservient to the wishes of the Goodmans and Kobin.
It is immaterial that the record ownership of the various stock and partnership interests may not have been in the identical persons or trusts at the same times. Throughout the years in question the J. A. Goodman family owned 35 per cent, the L. L. Goodman family 35 per cent, the Kobin family 20 per cent, and Barskin 10 per cent of the common stock of Industries and National. The same percentage interests were applicable to both partnerships, Hosiery and Abar, until 1943, when they were changed slightly (but in the same proportion) so as to admit Solar's wife as a record partner with a 9.09 per cent interest— an event which in no way affected the control or management of either enterprise. Although it is true that the record ownership of the stock or partnership interests may not have been in the same persons or the family trusts, the fact is that the 35-35-20-10 ratio (representing the proportionate interests of the Goodman and Kobin families and Barskin in relation to each other) was at all times maintained and that the actual control at all times material, represented by those interests, was really exercised by J. A. Goodman, L. L. Goodman, Kobin, and Barskin.
Section 45 speaks in sweeping terms. It refers to ‘two or more organizations, trades, or businesses (whether or not incorporated, * * * and whether or not affiliated) owned or controlled directly or indirectly by the same interests.‘ The type of control contemplated by these provisions is reflected in the regulations which deal with the concept in all-embracing language as follows (Regulations 111, sec. 22.45-1(3)):
The term ‘controlled‘ includes any kind of control, direct or indirect, whether legally enforceable, and however exercisable or exercised. It is the reality of the control which is decisive, not its form or the mode of its exercise. * * *
It is wholly unimportant that the Goodman trusts which owned stock in National and Industries were not the same Goodman trusts which were the record partners in Hosiery and Abar. The significant thing is that that each of the two Goodmans in fact exercised control that was commensurate with the holdings of his family. We have no doubt that all four organizations were ‘owned or controlled directly or indirectly by the same interests.‘ Cf. Forcum-James Co., 7 T.C. 1195, 1215-1216.
3. The existence of the requisite common ownership or control is not sufficient, however, to justify the application of section 45. The Commissioner may make a distribution, apportionment or allocation under section 45 only ‘if he determined (that it) is necessary in order to prevent evasion of taxes or clearly to reflect the income of such (owned or controlled) organizations, trades, or businesses.‘ The purpose of section 45 is not to punish the mere existence of common control or ownership, but to assist in preventing distortion of income and evasion of taxes through the exercise of that control or ownership. It is where there is a shifting or deflection of income from one controlled unit to another that the Commissioner is authorized under section 45 to act to right the balance and to keep tax collections unimpaired. Asiatic Petroleum Co. v. Commissioner (C.A. 2), 79 F.2d 234, 236, certiorari denied 296 U.S. 645; Treas. Regs. 111, sec. 29.45-1; cf. Gordon Can Co., 29 B.TA. 272.
It has been said many times that the Commissioner has considerable discretion in applying section 45, and that the determinations required of him under the statute must be sustained unless that discretion has been abused. Our review of those determinations is not de novo, and we may reverse them only where the taxpayer proves that they are unreasonable, arbitrary, or capricious. See, e.g., G.U.R. Co. v. Commissioner (C.A. 7), 117 F.2d 187, 189; National Securities Corp., 46 B.T.A. 562, 564, affd. (C.A. 3) 137 F.2d 600, 602, certiorari denied 320 U.S. 794; Seminole Flavor Co., 4 T.C.at 1228.
Applying this standard, we conclude that the allocations of Abar's income were arbitrary as to both Industries and National, that the allocation of Hosiery's income to Industries was reasonable and justified by section 45, and that the allocation of Hosiery's income to National was not authorized by section 45.
a. Abar. Abar purchased waste and defective hosiery from Industries and National, as well as from other sources, paying established market prices therefor. It either repaired the hosiery or reclaimed the yarn. In the case of the repaired hosiery, Abar would have it dyed and finished by National, paying standard charges for such services, and would then sell the hosiery to jobbers. The reclaimed yarn it would sell primarily to Industries, National, and Fulton (an organization controlled by the Goodmans), although it made some sales to other purchasers. It received established market prices for its reclaimed yarn. We think that the Commissioner's attempt to make allocations of Abar's income was arbitrary and unauthorized by section 45.
Nor is a contrary conclusion warranted because it was not shown that independent capital was an important factor in Abar's operations, or that it had any employees independently of those of petitioners or some other similarly controlled organization; or because its machinery was owned by petitioners or another similarly controlled organization, and its operations were carried on at the premises of one of those organizations; or because its mended hosiery was finished by National. Cf. Miles-Conley Co., 10 T.C. 754, affirmed on another issue (C.A. 4), 173 F.2d 958; Buffalo Meter Co., 10 T.C. 83; Seminole Flavor Co., 4 T.C. 1215; Briggs-Killian Co., 40 B.T.A. 895. The area in which Abar operated was a separate and distinct phase of the industry, and it was, moreover, a phase never before entitled either by National or Industries. And despite all the intertwining relationship, the fact remains that Abar paid and received fair market prices, as though its transactions had been carried on with strangers. No more could be expected of it. While the interests controlling Industries and National could have set up salvage departments within those corporations, the uncontradicted testimony was that a single mill usually did not have enough waste to justify such a step, and, in any case, there was no obligation to adopt the course which carried the greater tax burden. Cf. Central Cuba Sugar Co., 16 T.C. 882, at p. 892.
b. Hosiery. It is important that Hosiery's position in the scheme of things be clearly understood. Industries had a so-called grey mill at Grenada, Mississippi. It had no facilities for dyeing or finishing its product. It shipped its hosiery in the grey directly to National at Indianapolis, where the hosiery was dyed and finished, at standard prices for such services, which included a fair profit above costs to National. Title to the hosiery remained in Industries. This arrangement was worked out directly between Industries and National as early as April 1938.
Hosiery's predecessor, Knitting, was first organized in March 1938. At some undisclosed time, Knitting entered into an oral agreement with Industries to furnish styling and merchandising services to Industries and to arrange for the sale of Industries' products. Neither Knitting nor Hosiery had any machinery or plant; neither had a sales organization; there is no evidence that either of them had any tangible physical assets of any consequence; the address of both was the same as National's address; neither Knitting nor Hosiery had any employees who were not also officers or employees of Industries or National; the initial capital of Hosiery was fixed at the comparatively nominal amount of $4,286.25, and even that amount was not contributed in cash or assets other than notes. Capital was not a factor in Hosiery's operations which consisted almost entirely, as far as we have been able to determine from this record, of part-time or occasional services rendered by the Goodmans and Kobin.
The foregoing summary is not intended to suggest that Hosiery should be disregarded as a sham; indeed, we have already concluded that Hosiery's separate entity will be recognized. But it is highly relevant to examine the functions performed by Hosiery in correct perspective, in order to determine whether income that was really earned by Industries has been artificially diverted to Hosiery; and a helpful guide in seeking the answer to that inquiry is whether the charges made by Hosiery for its services were disproportionate to the value of such services.
What was the nature of the services performed by Hosiery? There is no evidence that any of the record partners in Hosiery performed services; we are informed only of services alleged to have been performed by the two Goodmans and Kobin, as employees of Hosiery. Each of these three persons, however, was also actively engaged in the hosiery business as an officer or employee of other organizations, such as National. Thus, National's returns for 1941 state that Kobin devoted full time to its business, and its returns for 1942 disclose that he devoted three-fourths of his time to its business. It is plain that the services of the two Goodmans and Kobin, as employees of Hosiery, were only on a part-time or occasional basis.
These were, nevertheless, valuable services, and included furnishing ideas for design and styling of Industries' product, the establishment of various brand names for that product, as well as the development of other merchandising ideas and plans. In addition, they procured directly several large purchasers for Industries' product, such as Sears, Roebuck & Company. However, apart from the few large purchasers, Hosiery did not, through its employees, do any selling. The great bulk of the sales was made by National's sales organization, and for those services National was paid its costs plus a fair profit. Petitioners contend that Hosiery ‘engaged‘ National's services. Certainly, this is not true as to National's services in dyeing and finishing Industries' hosiery, for, by contract of April 12, 1938, National agreed directly with Industries to perform such services for Industries. And although Hosiery may have gone through the formality of ‘engaging‘ National's sales organization, we think it contributed nothing of value to Industries in that respect, for Industries could have arranged that matter directly with National, just as it had made direct arrangements with National to dye and finish its hosiery.
Petitioners contend that this is an inappropriate case for the application of section 45, since Industries received a fair price for its hosiery in the grey. But the fatal defect of that contention is that Industries did not sell its hosiery in the grey. Had Hosiery purchased Industries' product in the grey, thereby assuming all responsibility as well as the risk of the market from that point forward, there would be substance to that position. But that was not the case. Industries manufactured hosiery in the grey; it shipped the hosiery to National for dyeing and finishing, for which it paid standard charges; and it at all times retained title to its product. Hosiery did render styling and merchandising services, as well as sales services in the case of a few large purchasers. But Hosiery did not buy Industries' product for resale. Nor did it guarantee that Industries would receive any fixed or minimum return on its product. It was Industries' finished product that was being sold to the trade, not the product of Hosiery. And it is wholly fallacious to contend that Industries was entitled to receive only a fair price for its hosiery in the grey. It was entitled to receive the full price paid for its finished product minus such fair charges as may have been incurred for dyeing, finishing, and sales services furnished by National, and minus also such fair charges for styling, merchandising, and other services actually rendered by Hosiery. To the extent that the arrangement between Hosiery and Industries resulted in a larger concentration of profits in the hands of Hosiery, to the detriment of Industries, this case presents a typical situation for the application of section 45.
What, then, was the fair value of the services rendered by Hosiery? As we have indicated above, the partnership, as such, furnished nothing of value to Industries, apart from the services of the two Goodmans and Kobin— services which Industries could have engaged directly, if Hosiery (or its predecessor, Knitting) had not been created. However, Hosiery was entitled to receive the fair value of the services rendered by the two Goodmans and Kobin as its employees. The evidence as to that value was not entirely satisfactory, and the best measure we can find, in the evidence before us, of the value of those services is the salaries that were in fact paid for them. Cf. Welworth Realty Co., 40 B.T.A. 97, 100-101. There was testimony that those salaries were fixed by agreement with the Goodmans and Kobin; that they participated in determining the amounts of the salaries; that in fixing those salaries they considered the reasonable value of their services; and that the salaries as fixed were considered fair compensation.
It may be that the amounts of these salaries were in some way affected by the fact that the employer, Hosiery, was controlled by the employees, the Goodmans and Kobin, and that its profits would directly or indirectly benefit them or persons closely related to them. The fact that the salaries declined in later years is not enough to establish that any special concession was made; another plausible explanation for the decrease appears in the evidence. L. L. Goodman testified that the major merchandising job came in the earlier years, with the task of establishing a market for Industries' product, and that ‘once the brand got established and the public repeated on it, it from then on went on its own momentum.‘ In the later years, therefore, the Goodmans' and Kobin's services were reduced, and a reduction in their compensation was not at all surprising. This, in substance, seems to be affirmed by petitioners in their brief, where they say that ‘These compensations were not in the category of 'salaries' for continuing services, which ordinarily are more or less uniform through the years.‘
In any event, the burden was on Industries to prove the value of the services Hosiery rendered, and it has provided no more convincing evidence of that value than the salaries in question. Petitioners insist that once they have shown application of section 45 and the allocations thereunder to be arbitrary, the burden shifted to respondent to prove a proper allocation. While there may be doubt as to the validity of this contention, we need not consider it, because we do not believe that Industries can establish that the allocation of Hosiery's income made to it by respondent was arbitrary without showing the value of the services it rendered from Hosiery.
L. L. Goodman's testimony suggests in a general and undefined fashion that Hosiery's services to Industries extended beyond the merchandising and other services already noted, performed by the Goodmans and Kobin, and that therefore it was not unreasonable for Industries to pay Hosiery more than just the value of those services. We find nothing in that testimony or in other evidence to show exactly what these additional functions were, and we are not convinced that in fact there were any. The claim itself seems to amount to little more than that the experience, interest, and resources of the Goodmans and Kobin were marshalled behind Industries' product. To the extent that this was reflected in the services they rendered, compensation therefor must be taken to be included in the salaries they received. Over and beyond that there was nothing Industries did not already derive from its own connections and relations with the Goodmans and Kobin. Cf. R. O. H. Hill, Inc., 9 T.C. 153, 157-158.
Petitioners challenge the deficiencies on the further ground that the respondent made allocations of Hosiery's ‘net‘ income, and not of its ‘gross‘ income. Cf. Chelsea Products, Inc., 16 T.C. 840. There is confusion in the record as to the label to be applied to the amounts allocated by respondent. The respondent's deficiency notices, which form the basis for these proceedings, refer to the amounts as ‘gross‘ income, whereas reports of a revenue agent, introduced in evidence to show the detailed computations, refer to the amounts as ‘net‘ income. We think that respondent's explicit determination in his statutory notices of deficiency that he was allocating ‘gross‘ income cannot be reversed, in view of the nature of the transactions carried on between Hosiery and Industries. Hosiery itself neither bought nor sold the product manufactured by Industries, but only provided certain services respecting that product. Therefore, contrary to the manner in which it executed its tax returns, the amounts at which Industries' finished product was sold were not Hosiery's ‘gross receipts‘ but those of Industries; Hosiery had no ‘cost of goods sold,‘ and no ‘inventory‘; and the expense of finishing, dyeing, and selling Industries' product was in fact the expense of Industries and not of Hosiery. Hosiery's returns, which were based upon the theory that it sold its own goods, were therefore misleading. In fact, other than the salaries paid by Hosiery and some small tax liability,
it is not clear that Hosiery had any expense of operation. We approve an allocation of Hosiery's gross income to the extent that such gross income in fact exceeded the fair value of the services rendered by Hosiery to Industries, and we think that, in essence, respondent did substantially that here (after making an allowance of a 10 per cent return on the partners' capital). The deficiencies proposed against Industries are no greater than they would have been, had Hosiery filed returns which accurately set forth its gross income and had the Commissioner made explicit allocations of portions of those amounts—allocations which we approve. In the circumstances, we find no error in the proposed deficiencies against Industries.
Hosiery's tax returns claimed deductions for taxes for its fiscal years ending in 1941, 1942, 1943 and 1944 in the following respective amounts: $413.21, $550.18, $618.05, $724.80. Except for $3.21 for state personal property tax in the 1941 return, these amounts consisted of social security taxes and state gross income taxes.
However, the Commissioner did more than make an allocation of a portion of Hosiery's income to Industries; he also allocated a portion thereof to National. We think that action was unauthorized by section 45. National received a fair price, including a reasonable profit, for the dyeing, finishing, and sales services which it rendered with respect to Industries' product. Thus, National's earnings in relation to such services were accurately reflected in its returns, and there is no basis on which to attribute to National any further profits growing out of the sale of Industries' product. We therefore disapprove the deficiencies asserted against National to the extent that they reflect allocations from Hosiery.