Docket Nos. 682-72 1358-72 1724-72 2212-72 3740-72.
Paul H. Frankel, for the petitioners.
Petitioners and others owned a cigarette filter invention which they transferred to a trust created in June 1967, retaining the right to the trust's income as well as any gains from the sale of its corpus. In July 1967, the trust transferred the invention to Columbia University under an agreement obligating the university, among other things, to prosecute domestic and foreign patents, protect them from infringement, and negotiate and enter into licensing agreements with the cigarette industry. Petitioners reserved for themselves a substantial percentage of any royalties earned under the licensing arrangements. Because the university did not carry out its obligations under the agreement in a manner satisfactory to petitioners, in September 1967, the trust gave notice of intention to terminate the agreement and completed the termination procedures in February 1968. Petitioners claimed charitable contribution deductions on their 1967 income tax returns for one-half of the alleged value of the invention transferred to the university. Held, since the trust created by petitioners, to which they transferred the invention, was a ‘grantor’ trust within the provisions of sec. 677, I.R.C. 1954, sec. 671, I.R.C. 1954, entitles petitioners to their proportionate share of deductions for any charitable contributions by the trust. Held, further, however, the transaction with Columbia was not a charitable contribution within the meaning of sec. 170, I.R.C. 1954.
Respondent determined the following deficiencies in income tax in those consolidated cases:
+--------------------------------+ ¦Docket No. ¦Year ¦Deficiency ¦ +------------+------+------------¦ ¦ ¦ ¦ ¦ +------------+------+------------¦ ¦682-72 ¦1967 ¦$1,184.97 ¦ +------------+------+------------¦ ¦1358-72 ¦1967 ¦4,830.03 ¦ +------------+------+------------¦ ¦ ¦1968 ¦7,460.42 ¦ +------------+------+------------¦ ¦1724-72 1 ¦1967 ¦1,026.39 ¦ +------------+------+------------¦ ¦ ¦1968 ¦5,592.23 ¦ +------------+------+------------¦ ¦ ¦1969 ¦815.00 ¦ +------------+------+------------¦ ¦2212-72 ¦1967 ¦3,887.00 ¦ +------------+------+------------¦ ¦ ¦1968 ¦6,059.00 ¦ +------------+------+------------¦ ¦ ¦1969 ¦7,129.00 ¦ +------------+------+------------¦ ¦3740-72 ¦1968 ¦1,999.60 ¦ +------------+------+------------¦ ¦ ¦ ¦ ¦ +--------------------------------+
In an amendment to his answer, respondent alleged additional deficiencies for 1968 in docket Nos. 1358-72 and 1724-72 in the amounts of $25,499.09 and $17,344.98, respectively. These allegations, as well as certain other issues, are not presented for decision in this proceeding.
The following cases are consolidated herewith: Robert Strickman and Rose Strickman, docket No. 1358-72; William W. Suitt and Kathryn S. Suitt, docket No. 1724-72; Robert S. Raum and Ruth Raum, docket No. 2212-72; Irving Rusoff and Perle Rusoff, docket No. 3740-72.
Other issues having been severed, the following are presented for decision in this proceeding:
(1) Whether petitioners owned any interest in any invention at the time it was transferred to Columbia University; and
(2) Whether the transfer of the invention to Columbia University constituted a charitable contribution within the meaning of section 170.
FINDINGS OF FACT
Petitioners Irving I. Rusoff (hereinafter Rusoff) and Perle P. Rusoff, husband and wife, were legal residents of Park Ridge, N. J., at the time their petitions were filed. Petitioners Robert S. Raum (hereinafter Raum) and Ruth Raum (now deceased) were husband and wife and legal residents of New York, N. Y., at the time their petition was filed. Petitioners William W. Suitt (hereinafter Suitt) and Kathryn S. Suitt, husband and wife, were legal residents of Greenwich, Conn., at the time their petition was filed. Petitioners Robert Strickman (hereinafter Strickman) and Rose Strickman, husband and wife, were legal residents of Rivervale, N. J., at the time their petition was filed.
In the late 1950's, Strickman began the development of a cigarette filter which would reduce particulate matter (tars) and nicotine gas from cigarette smoke without altering the natural flavor of the tobacco. He was motivated in part by the fact that both of his parents had died of cancer. His efforts produced the Strickman Cigarette Filter (hereinafter filter or invention) which it was believed would appreciably reduce the level of inhaled tar and nicotine below the levels then attained by conventional filters. An application for a patent was filed on September 28, 1960, and continuations of that application were filed on January 11, 1965, December 6, 1966, and April 11, 1968. On November 9, 1971, United States Patent 3,618,618 was granted for the filter.
While he was in the process of developing the filter, Strickman transferred undivided percentage interests in it to various individuals, including Raum, Suitt, and Rusoff. The transfers were made by informal oral or written assignments and were not evidenced by any documents in the customary legal form. The transfers were either compensation for assistance in developing the filter or, in some cases, merely gifts.
Suitt received his interest in the filter in 1966. He had some knowledge of the cigarette industry, and he thought the filter had significant economic potential. In early 1967, Suitt consulted Robert Katz (hereinafter Katz), an attorney, and introduced him to Strickman. In Strickman's laboratory, Katz observed tests of several sample filters, perused test results comparing the effectiveness of the filter with conventional filters, and concluded that the economic potential of the filter was ‘astronomical.’ He recommended that the rights to the filter be transferred to an organization which would be more capable than they in dealing with the powerful tobacco manufacturers. Such an organization, he advised, could more effectively negotiate licensing agreements with the tobacco industry.
Katz suggested that the transfer be made to the Medical School of Columbia University (hereinafter Columbia, the university, or the medical school). Several doctors associated with that institution lived in Katz's community, and some of them had been instrumental in saving the life of Katz's son several years earlier. Katz's contacts would facilitate Columbia's acceptance of the transfer. Columbia was thus readily and quickly available as a desirable transferee, and it had the facilities to further develop the filter.
Since the other owners of interests in the filter had no objection to an arrangement with Columbia, negotiations with Columbia regarding the transfer were initiated. Katz, who represented the owners of the filter (hereinafter referred to as the Strickman group), informed Dr. Donald Tapley, a neighbor and faculty member of the medical school, about the filter and the desire of its owners to transfer it to Columbia. Dr. Tapley contacted William Bloor, treasurer of Columbia, who initiated proceedings within the university necessary for a transfer of the filter. On April 25, 1967, and May 4, 1967, meetings were held between representatives of the Strickman group and Columbia. Attending these meetings on behalf of the Strickman group were Strickman, Suitt, and Katz. Raum attended only the meeting held on April 25, 1967.
The participants at these meetings discussed the nature of the invention; the patent status of the invention; the tax considerations for the owners of interests in the filter; the nature of possible licensing arrangements between Columbia and the cigarette manufacturers, including royalty charges; proposed provisions of an assignment agreement between the Strickman group and Columbia, including referred to as a ‘purchase price to be paid periodically * * * which payments would be contingent on the amount of royalties received from the University's licensees'; and obligations which Columbia would undertake with respect to the filter.
At the Apr. 25, 1967, meeting, the applicability of sec. 1235 was discussed. That section, if applicable, would recognize payments received by the Strickman group as gain from the sale or exchange of a capital asset.
Prior to the May 4, 1967, meeting, Columbia had independent tests performed by Fitelson Laboratories and these tests tended to support Strickman's claims concerning the effectiveness of the filters in reducing tars and nicotine gas. Taste tests were to be conducted in order to verify the effect of the filter on the natural flavor of the cigarette smoke.
Subsequent to these meetings, it was decided that the approximately 20 members of the Strickman group would need to act in concert at the time of the transfer, and thereafter, in dealing with Columbia. A power of attorney as a means of effecting the transfer was rejected because a pure agency relationship would be revoked by the death of any member of the group. In a letter dated June 6, 1967, to John Wheeler, an attorney for Columbia, Katz described the need for a vehicle for the transfer and stated that a trust would probably be utilized. The letter states: ‘The Declaration of Trust will give to the Trustees legal title with all of the powers requisite to whatever action may be required in the future as well as the power to sell the patent to Columbia.’
Accordingly, on June 9, 1967, a trust agreement was executed between the Strickman group as grantors, and Strickman and Raum, as trustees, in which the grantors transferred all their rights in the filter to the trust. The trustees were to ‘collect the net income or proceeds of sale’ and make distributions thereof to the grantors in accordance with specified percentages. The powers of the trustees were provided as follows:
1. To sell to COLUMBIA UNIVERSITY or to any of its designees the entire right, title and interest in and to the INVENTION upon such terms as in their sole discretion and judgment may be deemed for the best interest of the beneficiaries hereunder.
2. To compromise, settle, arbitrate or defend any claim or demand in favor of or against the trust and to enter upon such contracts and agreements and to make such compromises or settlements of debts, claims or controversies as they may in their sole discretion deem necessary or advisable.
3. To incur and pay the ordinary and necessary expenses of administration, including (but not by way of limitation) reasonable attorneys' fees, accounts' fees, and the like.
4. To act hereunder through an agent or attorney-in-fact, by and under power of attorney duly executed by the Trustees in carrying out any of the powers and duties herein authorized.
On June 9, 1967, the trust agreement was amended to provide that no beneficiary could assign his interest without the amount of the cotrustees, and that the cotrustees would not enter into any transaction affecting ‘the bulk of the property rights owned by the ‘trust’ without the approval of at least 80 per cent of the holders of beneficial interests in the trust property.
During June 1967, an assignment agreement between Columbia and the Strickman group was being drafted with Katz and Raum participating extensively in the drafting process. During this period, Columbia was considering whether it should enter the transaction. An ad hoc committee of trustees of the university and the investments subcommittee of the university's finance committee evaluated the prospects and advisability of consummating the transfer. Dr. Grayson Kirk, president of Columbia, forwarded to the trustees, for their consideration, a report of the finance committee favoring the proposal. The trustees were advised that: The holders of the invention would assign all of their right, title and interest in the patent application to the University * * * in exchange for a purchase price * * * to be paid periodically over a period approximating the life of the patent, which payments would be contingent on the amount of royalties received from the University's licenses * * *
During this period the Strickman group was pressing Columbia for a decision. A decision in favor of accepting the transfer was reached, and negotiations between the university and the Strickman group, involving substantial bargaining, were finalized.
On July 7, 1967, an assignment by the trust of all its interest in the filter to Columbia and an assignment agreement between the trustees and Columbia were executed. The lengthy assignment agreement (hereinafter sometimes referred to as the agreement) contained provisions dealing with the nature of the transfer, domestic and foreign patent applications for the invention and improvements thereon, limitations on disclosures of confidential information, payments to the trust, licensing of the patent to cigarette manufacturers, royalties, Columbia's obligations with respect to future litigation, and termination of the agreement.
The agreement stated: ‘Assignors (the trustees) by these presents to hereby sell, assign and transfer unto Assignee (Columbia) the full and exclusive right * * * in * * * the Invention.’
Columbia agreed to negotiate nonexclusive licenses for the invention with cigarette manufacturers. The agreement sets forth a schedule of fees to be charged the licensees, as well as royalty rates, minimum annual royalties, and an outline of the licensing agreement to be used by Columbia. From the gross receipts received by reason of Columbia's licensing of the invention, Columbia may deduct reasonable expenses for such purposes as research, litigation, maintenance of patents, and any other purpose necessary for developing the invention and maximizing its economic return. ‘net royalties' was defined as the difference between gross receipts and expenses.
Columbia was required to keep full and accurate records with respect to all receipts and expenses employed to compute the ‘net royalties' and the trust retained the right to inspect such books and records.
The agreement further states:
Assignee shall pay to the Assignors as compensation for the assignment of the Invention and other considerations expressed herein, the following percentage of net royalties received by it from the licensing of the patent and trademark rights:
+--------------------------------+ ¦Out of the first $5,000,000 ¦90%¦ +----------------------------+---¦ ¦Out of the second $5,000,000¦80%¦ +----------------------------+---¦ ¦Out of the third $5,000,000 ¦70%¦ +----------------------------+---¦ ¦Out of the fourth $5,000,000¦60%¦ +----------------------------+---¦ ¦Out of the fifth $5,000,000 ¦50%¦ +----------------------------+---¦ ¦Out of all above $25,000,000¦49%¦ +--------------------------------+
Other obligations assumed by Columbia include the requirement that it defend the patent through defensive and offensive litigation, if necessary, and secure and maintain any desirable foreign patents. The agreement was to expire at the close of the calendar quarter in which the last of all the relevant patents expired, unless terminated earlier. The agreement described circumstances in which either party might choose to terminate the agreement: (1) In the event Columbia failed to comply with any provision of the agreement and such failure or breach continued uncured for a period of 60 days after written notice of the breach was received from the trust; and (2) in the event annual net royalties did not average at least $100,000 per year for any 3 consecutive calendar years beginning with 1971. If termination occurred, Columbia would reassign all rights in the invention to the trust.
The agreement was signed by representatives of Columbia and by the cotrustees, Raum and Strickman. The language of ‘sale’ contained in the agreement was inserted to substantiate the Strickman group's claim for ‘sale or exchange’ treatment under section 1235 of their gain on the disposition of the patent. The tax treatment of the net royalty payment to the trust had been the subject of discussion at negotiations between Columbia and the Strickman group. In view of the concern that the payments be taxed at capital gains rates, no charitable deduction was anticipated at this time. The availability of a charitable deduction was not one of the reasons for approaching Columbia.
On July 13, 1967, Columbia issued several press releases describing the transaction, the invention, and the inventor. In addition, Dr. Grayson Kirk held a press conference in order to publicize the transfer. Columbia was very anxious about adverse publicity resulting from its association with an invention which might encourage cigarette smoking. The transfer was characterized in the press release as one designed primarily to aid cancer research as well as the university.
Columbia began to perform its obligations under the agreement and hired a manager to work exclusively on the filter. By early August 1967, sufficient doubts arose about the effectiveness of the filter to cause Columbia to suspend all licensing activities until further tests were conducted. At that time, Dr. Kirk was called to testify before a United States Senate sub-committee with respect to the filter and Columbia's role in promoting it.
Columbia engaged the services of one of its most eminent chemists, Dr. Ralph Halford, to test the filter. Tests were conducted with the cooperation of the Strickman group. The Strickman group was not satisfied with the progress of the work and in mid-September gave notice of their intention to terminate the agreement. Formal notice of termination was served in January 1968, and by February 1968, Columbia ceased to have an interest in the filter.
On their 1967 income tax returns all the petitioners claimed charitable contribution deductions as a result of the transaction with Columbia. The amounts of the deductions were computed generally by multiplying one-half of a figure utilized as the value of the invention by the percentage interest allegedly allegedly owned by each petitioner. The value was based upon the price at which certain interests in the invention allegedly had been sold. Petitioners claimed contributions in 1967 in the following amounts:
The use of one-half the value is founded on the allegation by petitioners that they gave one-half of their interest in the filter to Columbia.
+----------------------------------+ ¦Petitioner ¦Amount ¦ +------------------------+---------¦ ¦ ¦ ¦ +------------------------+---------¦ ¦Robert S. Raum, et ux. ¦$450,000 ¦ +------------------------+---------¦ ¦Irving I. Rusoff, et ux.¦56,500 ¦ +------------------------+---------¦ ¦William W. Suitt, et ux.¦978,750 ¦ +------------------------+---------¦ ¦Robert Strickman, et ux.¦1,734,300¦ +----------------------------------+
Because of the percentage limitations in section 170, petitioners could deduct only part of the contributions. The remainder was utilized as a carry-forward of charitable contributions and was deducted by petitioners to the extent allowable in subsequent years.
1. Ownership Issue
Respondent seeks to deny the claimed charitable contributions on the ground that, as a result of the June 9, 1967, transaction, the trust became the owner of the filter, and the trust rather than petitioners made the July 7, 1967, transfer to Columbia. He contends that, since petitioners had already transferred all their interest in the filter to the trust, they could not have made a charitable contribution to Columbia.
Respondent's argument is without merit. Under the terms of the trust created by petitioners on June 9, 1967, the trustees are directed to ‘collect the net income or proceeds of sale’ and to ‘make distribution thereof upon receipt of the Grantors in accordance with the percentages appearing alongside their signatures or in accordance with any writing dated subsequent hereto.’ Under section 677(a)(1), the grantor of a trust is treated as the owner of any portion of a trust whose income may be ‘distributed to the grantor.’ Since the grantors of the June 9, 1967, trust were entitled to both the trust's income and the proceeds of the sale of the corpus, they are treated as the owners of the entire trust Section 671 provides that where the grantor shall be treated as the owner of any portion of a trust, ‘there shall be included in computing the taxable income * * * of the grantor * * * items of income, deductions, and credits against tax of the trust.’ Accordingly, the grantors of the June 9, 1967, trust are entitled to take their respective proportionate shares of the trust's deductions in computing their taxable income. See William Scheft, 59 T.C. 428, 431-432 (1972); Archbishop Samuel Trust, 36 T.C. 641, 651 (1961), affd. 306 F.2d.682 (1st Cir. 1962).
SEC. 677. INCOME FOR BENEFIT OF GRANTOR.(a)GENERAL RULE. — The grantor shall be treated as the owner of any portion of a trust, whether or not he is treated as such owner under section 674, whose income without the approval or consent of any adverse party is, or, in the discretion of the grantor or a non-adverse party, or both, may be —(1) distributed to the grantor or the grantor's spouse;
That the grantors' deductions derived from the trust include the trust's charitable contributions is made doubly clear by the regulations. Section 1.671-3(a)(1), Income Tax Regs., provides that if a grantor is treated as the owner of an entire trust (corpus as well as ordinary income), he takes into account all items of income, deductions, and credit ‘to which he would have been entitled had the trust not been in existence during the period he is treated as owner.’ Section 1.671-2(c), Income Tax Regs., states: ‘a charitable contribution made by a trust which is attributed to the grantor (an individual) under sections 671 through 677 will be aggregated with his other charitable contributions to determine their deductibility under the limitations of section 170(b)(1).’
Accordingly, any charitable contributions made by the June 9, 1967, trust would be deductible by petitioners. The issue remains, however, as to whether the trust made a ‘charitable contribution’ of the filter to Columbia.
2. The Charitable Contribution Issue
Section 170 allows as a deduction and ‘charitable contribution,‘ payment of which is made during the taxable year. When the transfer at issue was made, a deduction was allowable under section 170 for a contribution of property, other than money, in an amount equal to its fair market value at the time of the contribution, sec. 1.170-1(c)(1), Income Tax Regs., and a gift of a patent could qualify as a charitable contribution. Rev. Rul. 58-260, 1958-1 C.B. 126. If the fair market value of the contributed property exceeded the allowable percentage of the taxpayer's adjusted gross income as computed for this purpose for the taxable year, such excess could be carried forward to the later years.
SEC. 170. CHARITABLE, ETC., CONTRIBUTIONS AND GIFTS.(a) ALLOWANCE OF DEDUCTION. —(1) GENERAL RULE. — There shall be allowed as a deduction any charitable contribution (as defined in subsection (c) payment of which is made within the taxable year. A charitable contribution shall be allowable as a deduction only if verified under regulations prescribed by the Secretary or his delegate.
Petitioners contend that the trust's transaction with Columbia was a charitable contribution of one-half of the trust's interest in the filter and that, as settlors of a ‘grantor trust,' they are entitled to the maximum percentage allowable charitable contribution deductions in 1967 and to the carryovers of the unused balance to later years. Respondent maintains, and we agree that the trust's transaction with Columbia was not a ‘charitable contribution’ within the meaning of section 170(a) and, consequently, the claimed deductions are not allowable.
See secs. 671, 677; secs. 1.671-1, 1.671-3, Income Tax Regs.; William Scheft, 59 T.C. 428, 431-432 (1972); Archbishop Samuel Trust, 36 T.C. 641, 651 (1961), affd. 306 F.2d 682 (1st Cir. 1962).
Petitioners compute their charitable contribution deductions by assigning a fair market value of approximately $20 million to the interest in the filter transferred to Columbia. The issue as to the filter's value has been severed for separate trial.
The term ‘charitable contribution’ has been generally held synonymous with the term ‘gift.’ DeJong v. Commissioner, 309 F.2d 373 (9th Cir. 1962), affg. 36 T.C. 896 (1961); James A. McLaughlin, 51 T.C. 233, 234 (1968), affd. per order (1st Cir., May 28, 1969); Larry G. Sutton, 57 T.C. 239 (1971). ‘a gift is generally defined as a voluntary transfer of property by the owner * * * without consideration therefor.’ Harold DeJong, 36 T.C. at 899; Larry G. Sutton, supra at 242. If the transfer is impelled primarily by the anticipation of some economic benefit or is in fact an exchange in the form of a substantial quid pro quo, it is not a contribution. Singer Co. v. United States, 196 Ct.Cl. 90, 105-106, 449 F.2d 413, 422 (1971); Stubbs v. United States, 428 F.2d 885, 887 (9th Cir. 1970), cert. denied 400 U.S. 1009 (1971); Rainier Companies, Inc., 61 T.C. 68, 77 (1973); Charles O. Grinslade, 59 T.C. 566, 577 (1973).
We must therefore inquire into what actuated petitioners in making the transfer to Columbia. The task is not to measure the extent to which pristine charitable benevolence prompted the transfer. Cf. Commissioner v. Duberstein, 363 U.S. 278, 285 (1960). Rather, our inquiry seeks to expose the true nature of the transaction: Whether the gift was made ‘in expectation of the receipt of certain specific direct economic benefits within the power of the recipient to bestow directly or indirectly, which otherwise might not be forthcoming.’ Stubbs v. United States, supra at 887; Larry G. Sutton, supra at 243. The issue is factual.
As we view the evidence in its entirety, it clearly shows that the transfer to Columbia was a business transaction, not a charitable contribution. In essence, the Strickman group, acting through the trust, created a joint venture with Columbia for the profitable, commercial exploitation of the filter. The trust and Columbia negotiated an agreement which both of them hoped and expected to be mutually advantageous. From this transaction, we infer that petitioner expected to receive, directly and indirectly, financial benefits fully commensurate with the value of the property transferred. See Charles O. Grinslade, supra at 577. In no sense of the term as it is used in section 170(a) was the transaction a ‘charitable contribution.’ Analysis of events surrounding the transfer and the legal documents executed by the parties confirm this conclusion.
At the time the assignment agreement with Columbia was negotiated, the filter had been invented but needed testing and refining. Exploitation of the invention was expected to be an expensive and highly speculative venture. The Strickman group was aware of its own lack of credibility, its weakness vis-a-vis the powerful cigarette manufacturers, and the need for further development of the patent. Association with Columbia, a prestigious educational institution with a superior, widely known medical school, gave the filter valuable publicity as well as credibility as a cancer deterrent. It also provided the leverage needed for dealing with the tobacco industry in developing a market for the filter. It was with these needs and potential benefits in mind that the Strickman group negotiated the transfer to Columbia.
The July 7, 1967, assignment agreement itself reflects an arrangement for the mutual advantage of the parties, a quid pro quo, not a charitable contribution. The agreement provides that the trustees ‘hereby sell, assign and transfer’ the invention to Columbia. At its own expense, Columbia agreed to prosecute the patent applications to issuance or rejection and to file and prosecute corresponding foreign patent applications in ‘such countries as it reasonably deems necessary in order to obtain the greatest revenue from its ownership of the Invention.’ Columbia undertook to ‘attempt to negotiate nonexclusive licenses, to manufacture, use or sell the Invention, with manufacturers of cigarettes, manufacturers of cigarette filters,‘ and others throughout the tobacco industry. The agreement specified the minimum license and other fees to be charged. In addition, Columbia undertook at its own expense to protect the patent from infringement.
As ‘compensation for the assignment of the Invention and other considerations expressed’ the Strickman group was to receive substantial and direct pecuniary benefits. Moreover, the Strickman group was to be relieved of negotiating and policing all licensing agreements as well as perfecting and protecting all patents, domestic and foreign. The trustees were to receive the percentages of the net royalties (ranging from 90 percent of the first $5 million to 49 percent of all amounts above $25 million) set forth in our Findings — income earned, in large part, by Columbia's reputation and efforts. In the event the net royalties should not average at least $100,000 per year for any 3 consecutive calendar years beginning with 1971, and in other specified circumstances, the trust could give notice of termination of the agreement, and Columbia would be obligated to reconvey the filter to the trust. Indeed, because the trustees were dissatisfied with Columbia's initial steps in carrying out the agreement, the trustees gave notice of termination in mid-September 1967, less than 3 months after the agreement was signed— an action hardly consistent with a genuine donative intent.
The June 9, 1967, trust agreement executed less than a month before the agreement with Columbia does not even purport to authorize the trustees to make a gift of the trust property but, instead, empowers them to ‘sell’ the invention to Columbia or any of its designees. The treasurer of Columbia testified that he ‘wanted the transfer to go through’ because he ‘looked on it as a favorable business transaction for the university.’ As pointed out in our Finding, the language of the trust agreement with Columbia was carefully chosen with a view to obtaining the favorable ‘sale or exchange’ treatment of patent income under section 1235. Every legal document executed in this whole transaction is phrased in the terms of a sale.
In sum, the tenor and content of the negotiations, the language of the documents of transfer, and all the surrounding facts are inconsistent with a genuine donative intent and are consistent with only one conclusion — this was a purely business transaction with no charitable element. See Charles O. Grinslade, spurs at 577; Rainier Companies, Inc., supra at 77.
Petitioners dispute this conclusion, citing testimony that the parties intended in some way to give approximately half their interest to Columbia or that, if there was a sale, it was a bargain sale of the invention to Columbia with a contribution equal to the bargain element. In the face of cogent documentary evidence, petitioners now repudiate the work of their lawyers as inconsistent with their intentions and the substance of the transaction. We find no merit in these arguments.
All the petitioners, excluding Rusoff, were present at the meetings with Columbia where the format of the transaction and section 1235 capital gains treatment were discussed. Katz, who was the moving force behind the transfer, and Raum, an attorney and leading member of the Strickman group, both participated in the drafting of the documents. Both were undoubtedly aware of the group's intention and what the group wanted accomplished. All the petitioners signed the trust agreement. Petitioners cannot be heard to disavow the efforts of their attorneys and other representatives acting on their behalf and dismiss these ‘formalities' as mere ‘lawyers' doings.’
As far as we can tell from the evidence, the theory of a charitable contribution was an afterthought which was not conceived until after the mid-September notice of termination had been sent to Columbia, the spectre of the venture's failure was apparent, and possibly, not until petitioners' 1967 returns were being prepared. This was too late. The history of a business transaction entered into with the hope and expectation of what one witness described as ‘astronomical’ profits flowing to the trust cannot be rewritten to reflect a benevolent, charitable plan which unexpectedly failed.
Petitioners have simply failed to convince us that this transaction had any element of charity. True, both of Strickman's parents died of cancer, and he professed an interest in Columbia's cancer research. Raum testified he was willing to give to Columbia what he anticipated would be millions of dollars because his wife attended some graduate courses there. Suitt's daughter attended Columbia's school of general studies for a limited period of time. Rusoff was aware of Columbia's good work. These motivations are not commensurate with the generosity petitioners claim, especially when it is remembered that a notice of termination was sent to Columbia during the period the filter was being tested and within less than 3 months after the agreement was signed.
We do not doubt that petitioners intended to confer an economic benefit upon Columbia, nor that at least some of the petitioners hoped that Columbia would use the funds to further cancer research. However, the expected economic benefit to Columbia is identical to that conferred upon any person chosen to render services in return for compensation. That intention is insufficient to characterize the transfer as a charitable contribution within the meaning of section 170(a).
The issues decided above were severed for a separate trial by order dated March 13, 1974. Our conclusions herein obviate the necessity for a trial of the issue as to the valuation of the filter at the time it was transferred to Columbia. The Court has not been advised, however, as to the disposition of other pleaded issues. The parties will be expected to file appropriate motions for the further handling of these cases.
Appropriate orders will be issued.