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Gregory v. Helvering

U.S.
Jan 7, 1935
293 U.S. 465 (1935)

Summary

holding that when the form of a transaction does not comport with its substance, the substance of the transaction controls for tax liability purposes

Summary of this case from CSX Corp. v. Children's Investment Fund Management (UK) LLP

Opinion

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 127.

Argued December 4, 5, 1934. Decided January 7, 1935.

1. A corporation wholly owned by a taxpayer transferred 1000 shares of stock in another corporation held by it among its assets to a new corporation, which thereupon issued all of its shares to the taxpayer. Within a few days the new corporation was dissolved and was liquidated by the distribution of the 1000 shares to the taxpayer, who immediately sold them for her individual profit. No other business was transacted, or intended to be transacted, by the new corporation. The whole plan was designed to conform to § 112 of the Revenue Act of 1928 as a "reorganization," but for the sole purpose of transferring the shares in question to the taxpayer, with a resulting tax liability less than that which would have ensued from a direct transfer by way of dividend. Held: while the plan conformed to the terms of the statute, there was no reorganization within the intent of the statute. P. 468. 2. By means which the law permits, a taxpayer has the right to decrease the amount of what otherwise would be his taxes, or altogether to avoid them. P. 469. 3. The rule which excludes from consideration the motive of tax avoidance is not pertinent to the situation here, because the transaction upon its face lies outside the plain intent of the statute. P. 470. 69 F.2d 809, affirmed.

CERTIORARI to review a judgment reversing a decision of the Board of Tax Appeals, 27 B.T.A. 223, which set aside an order of the Commissioner determining a deficiency in income tax.

Mr. Hugh Satterlee, with whom Messrs. George W. Saam, Rollin Browne, and Charles A. Roberts were on the brief, for petitioner.

Solicitor General Biggs, with whom Assistant Attorney General Wideman and Messrs. Sewall Key and Norman D. Keller were on the brief, for respondent.

By leave of Court, briefs of amici curiae were filed by Messrs. Ellsworth C. Alvord and Edward H. McDermott, and by Messrs. Albert E. James, A. Calder Mackay, George M. Morris, Willis D. Nance, Charles B. Rugg, Whitney North Seymour, and Harry N. Wyatt, in support of petitioner's contentions.


Petitioner in 1928 was the owner of all the stock of United Mortgage Corporation. That corporation held among its assets 1,000 shares of the Monitor Securities Corporation. For the sole purpose of procuring a transfer of these shares to herself in order to sell them for her individual profit, and, at the same time, diminish the amount of income tax which would result from a direct transfer by way of dividend, she sought to bring about a "reorganization" "under § 112(g) of the Revenue Act of 1928, c. 852, 45 Stat. 791, 818, set forth later in this opinion. To that end, she caused the Averill Corporation to be organized under the laws of Delaware on September 18, 1928. Three days later, the United Mortgage Corporation transferred to the Averill Corporation the 1,000 shares of Monitor stock, for which all the shares of the Averill Corporation were issued to the petitioner. On September 24, the Averill Corporation was dissolved, and liquidated by distributing all its assets, namely, the Monitor shares, to the petitioner. No other business was ever transacted, or intended to be transacted, by that company. Petitioner immediately sold the Monitor shares for $133,333.33. She returned for taxation as capital net gain the sum of $76,007.88, based upon an apportioned cost of $57,325.45. Further details are unnecessary. It is not disputed that if the interposition of the so-called reorganization was ineffective, petitioner became liable for a much larger tax as a result of the transaction.

The Commissioner of Internal Revenue, being of opinion that the reorganization attempted was without substance and must be disregarded, held that petitioner was liable for a tax as though the United corporation had paid her a dividend consisting of the amount realized from the sale of the Monitor shares. In a proceeding before the Board of Tax Appeals, that body rejected the commissioner's view and upheld that of petitioner. 27 B.T.A. 223. Upon a review of the latter decision, the circuit court of appeals sustained the commissioner and reversed the board, holding that there had been no "reorganization" within the meaning of the statute. 69 F.2d 809. Petitioner applied to this court for a writ of certiorari, which the government, considering the question one of importance, did not oppose. We granted the writ.

Section 112 of the Revenue Act of 1928 deals with the subject of gain or loss resulting from the sale or exchange of property. Such gain or loss is to be recognized in computing the tax, except as provided in that section. The provisions of the section, so far as they are pertinent to the question here presented, follow:

"Sec. 112, (g) Distribution of stock on reorganization. — If there is distributed, in pursuance of a plan of reorganization, to a shareholder in a corporation a party to the reorganization, stock or securities in such corporation or in another corporation a party to the reorganization, without the surrender by such shareholder of stock or securities in such a corporation, no gain to the distributee from the receipt of such stock or securities shall be recognized. . . .

"(i) Definition of reorganization. — As used in this section. . . .

"(1) The term `reorganization' means . . . (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, . . ."

It is earnestly contended on behalf of the taxpayer that since every element required by the foregoing subdivision (B) is to be found in what was done, a statutory reorganization was effected; and that the motive of the taxpayer thereby to escape payment of a tax will not alter the result or make unlawful what the statute allows. It is quite true that if a reorganization in reality was effected within the meaning of subdivision (B), the ulterior purpose mentioned will be disregarded. The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. United States v. Isham, 17 Wall. 496, 506; Superior Oil Co. v. Mississippi, 280 U.S. 390, 395-6; Jones v. Helvering, 63 App.D.C. 204; 71 F.2d 214, 217. But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended. The reasoning of the court below in justification of a negative answer leaves little to be said.

When subdivision (B) speaks of a transfer of assets by one corporation to another, it means a transfer made "in pursuance of a plan of reorganization" [§ 112(g)] of corporate business; and not a transfer of assets by one corporation to another in pursuance of a plan having no relation to the business of either, as plainly is the case here. Putting aside, then, the question of motive in respect of taxation altogether, and fixing the character of the proceeding by what actually occurred, what do we find? Simply an operation having no business or corporate purpose — a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business, but to transfer a parcel of corporate shares to the petitioner. No doubt, a new and valid corporation was created. But that corporation was nothing more than a contrivance to the end last described. It was brought into existence for no other purpose; it performed, as it was intended from the beginning it should perform, no other function. When that limited function had been exercised, it immediately was put to death.

In these circumstances, the facts speak for themselves and are susceptible of but one interpretation. The whole undertaking, though conducted according to the terms of subdivision (B), was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else. The rule which excludes from consideration the motive of tax avoidance is not pertinent to the situation, because the transaction upon its face lies outside the plain intent of the statute. To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.

Judgment affirmed.


Summaries of

Gregory v. Helvering

U.S.
Jan 7, 1935
293 U.S. 465 (1935)

holding that when the form of a transaction does not comport with its substance, the substance of the transaction controls for tax liability purposes

Summary of this case from CSX Corp. v. Children's Investment Fund Management (UK) LLP

holding that if the transaction "in reality was effected" in substance as well as in form, the ulterior [tax avoidance] purposes . . . will be disregarded

Summary of this case from ACM Partnership v. Commissioner

holding that the economic substance of a transaction rather than its form determines its tax treatment

Summary of this case from Edwards v. Your Credit Inc.

holding that a transaction, although qualifying in form, failed to qualify in substance as a reorganization because "[t]o hold otherwise would be to exalt artifice above reality . . ."

Summary of this case from Harris v. C.I.R

holding that losses incurred on sham transactions are not deductible under the I.R.C.

Summary of this case from Friedman v. C.I.R

holding that where a transaction on its face lies outside the plain intent of a statute, the general premise--that taxpayers have the right to avoid their taxes by whatever means allowed by law--does not apply and that "[t]o hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose"

Summary of this case from Shockley v. Comm'r

holding that taxpayers may reorg anize corporate structures to reduce their tax liability notwithstanding that their sole motivation is to pay less taxes, so long as the reorg anization does not amount to "an elaborate and devious form of conveyance masquerading as a corporate reorg anization, and nothingelse"

Summary of this case from 500 James Hance Ct. v. Pa. Prev. Wage App.

holding that taxpayers may reorganize corporate structures to reduce their tax liability notwithstanding that their sole motivation is to pay less taxes, so long as the reorganization does not amount to “an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else”

Summary of this case from 500 James Hance Court v. Pennsylvania Prevailing Wage Appeals Bd.

holding that the form of a corporate transaction, designed and executed for no other reason than to avoid taxes, may be disregarded when determining the tax consequences of that transaction

Summary of this case from Belterra Resort Indiana, LLC v. Indiana Department of State Revenue

holding that "[t]he whole undertaking * * * was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else" and concluding that a transaction need not be respected when it was solely undertaken to secure a federal tax benefit clearly beyond the Congressional intent.

Summary of this case from Jones v. Department of Revenue

finding corporation a sham not because it was owned entirely by one person, but because it had "no business or corporate purpose"

Summary of this case from Nelson v. Adams USA, Inc.

finding the economic substance of the transaction to be controlling and stating "[t]o hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose."

Summary of this case from Shepherd v. C.I.R

finding the economic substance of a transaction to be controlling and stating: "To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose."

Summary of this case from Calloway v. Commissioner

finding the economic substance of a transaction to be controlling and stating: “To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.”

Summary of this case from Calloway v. Comm'r of Internal Revenue

concluding that the transfer of stock from a wholly owned corporation to a newly created corporation, and then directly to the taxpayer, lacked economic substance because the “sole object and accomplishment of [the transfer] was the consummation of a preconceived plan, not to reorganize a business ... but to transfer a parcel of corporate shares to the petitioner”

Summary of this case from Nev. Partners Fund, L.L.C. v. United States

concluding the transaction lacked substance for tax purposes, even where the transactions on their face satisfied "every element required by" the relevant statutory language

Summary of this case from Internal Revenue Service v. CM Holdings, Inc. (In re CM Holdings, Inc.)

concluding the transaction lacked substance for tax purposes, even where the transactions on their face satisfied "every element required by" the relevant statutory language

Summary of this case from I.R.S. v. CM Holdings, Inc.

disregarding an intermediary shell corporation created to avoid taxes because doing otherwise would “exalt artifice above reality”

Summary of this case from Abramski v. United States

recharacterizing a transaction because "[t]he whole undertaking, though conducted according to [the relevant Code section], was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else"

Summary of this case from Benenson v. Comm'r of Internal Revenue

observing that, to assess economic substance, a court must look to the purpose of the statute to determine “whether what was done ... was the thing which the statute intended”

Summary of this case from Bank of N.Y. Mellon Corp. v. Comm'r

reviewing the “whole undertaking” and affirming Commissioner's disregard of corporate reorganization as being “without substance” because “[t]o hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose”

Summary of this case from Reddam v. Comm'r

In Gregory, the taxpayer engaged in a series of transactions which were technically consistent with the Internal Revenue Code but which lacked any real economic substance and defeated the purpose of the Code provisions. 293 U.S. at 467–70, 55 S.Ct. 266. The taxpayer attempted to avoid paying taxable dividends on stock transfers from her wholly-owned corporation by first creating a new corporation to which she transferred the stock, and then liquidating the new corporation and transferringthe stock to herself.

Summary of this case from Nev. Partners Fund, L.L.C. v. United States

In Gregory, the Supreme Court held that a corporate reorganization should be disregarded for federal income tax purposes when the reorganization had “no business or corporate purpose” and the “sole object” of the transaction was “the consummation of a preconceived plan” to avoid taxes.

Summary of this case from Frank Sawyer Trust of May 1992, Transferee v. Comm'r

In Gregory the Court remarked that "[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted."

Summary of this case from Internal Revenue Service v. CM Holdings, Inc.

In Gregory, the taxpayer was the sole shareholder of Corporation A, which held some shares of Corporation B. The taxpayer wanted to transfer the shares of Corporation B to herself, and sell them for a profit.

Summary of this case from Pension Benefit Guaranty Corp. v. White Consolidated Industries, Inc.
Case details for

Gregory v. Helvering

Case Details

Full title:GREGORY v . HELVERING, COMMISSIONER OF INTERNAL REVENUE

Court:U.S.

Date published: Jan 7, 1935

Citations

293 U.S. 465 (1935)
55 S. Ct. 266

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