COMMISSIONER OF INTERNAL REVENUE v. ASHLAND OIL & REFINING CO.; ASHLAND OIL & REFINING CO. v. COMMISSIONER OF INTERNAL REVENUE, 99 F.2d 588

SIMONS, Circuit Judge. Upon the petition of the taxpayer, Swiss Oil Corporation, now merged with others under the name Ashland Oil & Refining Company, we have two principal questions to decide. The first is whether the taxpayer in 1926 by liquidating another corporation, the stock of which it wholly owned, realized gain, notwithstanding an original purpose to acquire the liquidated corporation’s properties, and not its stock. The second involves the correctness of the Board of Tax Appeals’ determination of cost of the stock as a base for computing depletion.

Upon the Commissioner’s petition, and depending upon our answer to the principal questions involved, subsidiary questions are presented relating to amortization of discount allowed on notes given for the stock affecting taxes for the years 1926 to 1930, inclusive. Issues involving an alleged estoppel and errors in procedure will become important only if we conclude that the Board was right in deciding the principal issues against the taxpayer. The Swiss Company was in the oil producing business in Eastern Kentucky.

Prior to 1925 its business was unprofitable and it determined to procure more productive properties. For several years its directors discussed the purchase of lands or leases belonging to the Union Gas & Oil Company in Kentucky. For reasons with which we are not here concerned, the Union Company refused to sell its properties, but on July 29, 1924, Combs, President of Swiss, and Thraves, a stockholder, acting for Swiss, secured an option to purchase all of the Union stock for Five Million Dollars, of which a first payment of $1,500,000 was to be made upon its exercise.

By the terms of the option the Union stock was then to be placed in escrow, Union was to continue to operate the property until the net proceeds from operations should equal the sum of $1,000,000, when this amount was to be paid to the Union stockholders as a second payment. The balance of the purchase price was to be evidenced by promissory notes secured by a mortgage upon the oil and gas leases. Upon completion of the second payment and the delivery of the mortgage and notes for $2,500,000 the Union stock was to be delivered to Swiss by the escrow agent.

It was agreed that the sale of the stock should not carry with it any oil, money, notes, accounts, credits or securities belonging to Union on the day of the delivery of the stock, but that they should belong to the Union stockholders in proportion to their stock holdings. Unused material and equipment on hand and in storage upon the properties were likewise reserved from the sale, with the provision that they were to be purchased by Swiss at a price not exceeding original cost.

The Union stockholders were to pay all taxes and other obligations of the company incurred prior to the exercise of the option, and were to indemnify Swiss against any claims, either in tort or upon contract, that might accrue prior to the date of the initial payment. Thereafter Thraves assigned his interest in the option to Combs, and Combs later assigned to Swiss. For a consideration, several extensions were granted by Union, the last being until January 12, 1925. Swiss made strenuous efforts to raise, funds to meet the initial payment.

They were unsuccessful, and finally Combs was authorized to dispose of the option on the best possible terms, and if this could not be done to allow it to lapse. Before its expiration, however, an agreement was made on behalf of Swiss with the securities firm of Pynchon & Company of New York and Chicago.

By its terms, Pynchon, to whom the option was first assigned and on-whose behalf it had been exercised, agreed to re-convey the option to Swiss, together with $1,750,000 in cash, in consideration of the delivery to Pynchon of $2,000,000 of Swiss three year 7% notes and Swiss capital stock of a par value of $2,000,000. Swiss was to apply $1,500,000 to the payment of the first installment upon the purchase price of the Union stock and to assume Pynchon’s obligation for the balance. The Swiss agreements with Pynchon and with Union were carried out.

During 1925' the oil and gas leases were operated under Union’s supervision, and out of net earnings the second payment on the purchase price of the stock, plus interest, was paid by declaring dividends on the Union stock held by the escrow agent and paying them to the Union stockholders. The last payment was made -on December '30, 1925, and thereafter the notes and mortgages to secure the remaining portion of the purchase price were executed and delivered. The Union stock was delivered to Swiss by the escrow agent, and- on January 2, 1926., Union was liquidated and its properties assigned to Swiss.

It is agreed that the properties of Union when taken over by Swiss had a fair value of $7,906,043.32. The Commissioner, however, in his 1926 deficiency note determined the base for the taxpayer’s depletion deduction on properties formerly owned by Union to be the same as when in the hands of Union, namely, $2,800,000. The Commissioner’s determination was that Swiss had acquired the properties by virtue of a nontaxable reorganization.

He also determined that the $2,000,000 par value of capital stock and the $2,000,000 of notes paid to Pynchon & Company formed part of the cost of acquiring the Union stock and that Swiss was therefore not entitled to any deduction for amortization of discount on the notes. Swiss appealed to the Board of Tax Appeals, asserting that its base for depletion was the cost to it of the properties acquired from Union, $7,906,043.32, and in the alternative, if the capital stock and notes were not part, of its cost, it was entitled to deduction for amortization of expense and discount on the notes.

Shortly before the hearing upon the Swiss petition for review, the Commissioner abandoned the position: that the taxpayer had acquired the properties through reorganization, and in an amended answer alleged that the taxpayer had realized a taxable gain of $2,906,043.32 at their acquisition in 1926. He contended that the liquidation of Union was to be treated as wholly independent of the purchase of its stock.

In arriving at the alleged profits the Commissioner asserted the taxpayer’s cost to be $5,000,000, disregarding the notes and stock issued in the process of acquiring the Union stock, and the profit the difference between that amount and the admitted value of the properties.

The position of the taxpayer was that the acquisition of Union stock and the liquidation of that company were merely steps in a unitary plan to acquire the Union oil producing properties, and that no taxable gain was realized since the properties were still owned by it, that even if the Commissioner’s theory is accepted and the liquidation of Union treated as a separate transaction, the gain alleged to have been realized was erroneous because of the exclusion of the notes and stock as elements of cost.

A division of the Board sustained the Commissioner. (The decision was not reviewed by the full Board.) It was held that while Combs was originally authorized to 'negotiate for the purchase of either the assets or stock of Union, the contract actually entered into was with the stockholders for the purchase of stock.

Union was not a party to this transaction, afid its dissolution was not immediately contemplated since its existence was to continue until an amount called for by the contract should be paid out of earnings, whereupon its property was to be mortgaged and its notes to be delivered to its old stockholders. Moreover, if did hold and operate its properties for almost a year, during which the taxpayer as sole stockholder received all benefit and dividends from its earnings. Besides, Union was a separate taxpayer during 1925 and joined with Swiss in a consolidated return for part of that year.

It was therefore concluded that Swiss purchased the stock of Union and in a separate transaction acquired its assets upon dissolution, and that these circumstances might not be disregarded for tax purposes. It is now conceded that the acquisition of Union stock by Swiss was not, as originally determined by the Commissioner, in pursuance of a “reorganization,” for it is settled that the statutory definition of reorganization cannot be stretched to exempt from taxation gains resulting from a sale of properties for cash. Pinellas Ice Co. v.

Commissioner, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428; Cortland Speciality Co. v. Commissioner, 2 Cir., 60 F.2d 937, 939; Sarther Grocery Co. v. Commissioner, 7 Cir., 63 F.2d 68. The question remains, however, whether if the entire transaction, whatever its form, was essentially in intent, purpose and result, a purchase by Swiss of property, its several steps may be treated separately and each be given an effect for tax purposes as though each constituted a distinct transaction. It is true that Swiss acquired all of the stock of Union.

But this is not decisive, for a transitory ownership of stock is not necessarily of legal significance. Helvering v. Bashford, 302 U.S. 454, 458, 58 S.Ct. 307, 309, 82 L.Ed. 367. It has been said too often to warrant citation that taxation is an intensely practical matter, and that the substance of the thing done and not the form it took must govern. This principle has been repeatedly invoked by the Commissioner and applied by the Board. Carter Publications, Inc., v. Commissioner, 28 B.T.A. 160; Warner Co. v. Commissioner, 26 B.T.A. 1225; George Whittell & Co., Inc., v. Commissioner, 34 B.T.A. 1070.

And without regard to whether the result is imposition or relief from taxation, the courts have recognized that where the essential nature of a transaction is the acquisition of property, it will be viewed as a whole, and closely related steps will not be separated either at the instance of the taxpayer or the taxing authority. Prairie Oil & Gas Co. v. Motter, 10 Cir., 66 F.2d 309; Tulsa Tribune Co. v. Commissioner, 10 Cir., 58 F.2d 937, 940; Ahles Realty Corp. v. Commissioner, 2 Cir., 71 F.2d 150; Helvering v. Security Savings Bank, 4 Cir., 72 F.2d 874.

The Prairie Oil & Gas Case, supra, bears to the case at bar a close resemblance. It is not to be distinguished by the fact that the issue there was whether there was a reorganization so as to fix the base for depletion deductions. The principle governing decision was that a single transaction must be considered singly and not be divided into its several steps, each to be considered as a separate transaction in respect to tax liability.

It is not decisive that the purpose of Swiss to acquire the Union properties is not recited in formal agreements executed to bring about that result if such purpose is disclosed by circumstances which beyond controversy proclaim it. Nor does the fact, that the Union stock was held by Swiss for almost a year destroy the transitory character of such holding when the terms of the contract are considered. Swiss could not obtain the stock nor liquidate Union until its second payment had been made. Promptly thereafter it did dissolve Union.

The filing of a consolidated return for the two corporations in 1925 is likewise unimportant. It has so been considered by the Board. Muskegon Motor Specialties Company v. Commissioner, 35 B.T.A. 851. The plan of the taxpayer to secure the Union properties is fully disclosed by the exhibits and the witnesses in the case. This court had occasion to consider the essential character of the transaction upon an identical record in Lamprecht v. Swiss Oil Corp., 6 Cir., 32 F.2d 646. By stipulation the exhibits and other evidence in that case have been imported into this.

We said there [page 647], “It [Swiss] desired to procure profitable oil-producing properties,” and again, “It clearly appears to have been, if not the universal, at least the general opinion of the officers and directors of the Swiss Company that it had no recourse but liquidation unless it acquired the Union Gas & Oil Company properties,” and still again, in reference to Pynchon, “But through the fact of its acceptance of the purchase option and its controlling representation on the directorate of the Swiss Company [it] became practically interested in the Swiss Company’s carrying out of the purchase, and in a very proper sense indirectly — though no less effectively — secured to the Swiss Company the Union Gas & Oil Company properties.” In the light of these statements in the Lamprecht opinion we have carefully reviewed the record.

It seems clear that the transaction, though in form a purchase of stock, was in substance a purchase of the oil and gas leases belonging to Union. They could not otherwise be acquired. The reservation by the Union stockholders of cash, oil, notes, accounts, credits and securities clearly indicates that all that Union stockholders were selling and all that Swiss was buying were the oil and gas leases. The unused material and equipment on hand and in storage on the properties would be useful in operations, but .they likewise were reserved to be subjects for future barter apart from the stock.

The Union stockholders were to pay all taxes and other obligations incurred prior to the initial payment, and to indemnify Swiss against any claims either in tort •or upon contract that might accrue against. Union prior to the date of the cash payment. In all essential respects this agreement segregated the oil and gas properties from all of the other assets of Unión and freed them from accrued liability.

Our conclusion is that regardless of its form the substantial result that was intended to be effectuated by both parties to the transaction, and in fact was effectuated, was a transfer of the oil and gas properties to Swiss, and these properties being still owned by Swiss or its successor, no taxable gain has been realized. Though the purchase of the Union property in the manner recited was a non-taxable transaction, it is still necessary by reason of the taxpayer’s challenge to the cost base employed by the Board for the computation -of depletion to further examine its decision.

The division member determined the cost of Union stock to Swiss as $5,000,-000, the consideration named in the option from the Union stockholders. He treated the $2,000,000 of notes delivered to Pynchon & Company as having been sold at a discount of $250,000, and assigned no value to the stock of Swiss as an element of cost.

He arrived at this determination partly on the ground that the sellers of Union stock received only $5,-000,000, and partly by what he called a “before and after” comparison, and reasoned that the cost of obtaining cash might not be added to the cost of property therewith purchased, for it was but the expense of acquiring a capital asset. This method of analysis is but the breaking down of a transaction, • single in its nature, into its component parts, and is subject to the infirmity heretofore noted.

Before the deal with Pynchon, he reasoned, Swiss had the option but no cash, while Pynchon had the cash but no option. Thereafter Swiss had both the option and the cash, so that all that it acquired for its $2,000,000 of notes and $2,000,000 par of preferred stock was $1,750,000 of cash. The notes were sold at a discount and the stock was pure bonus. But this ignores wholly the realities of the situation.

Prior to the deal with Pynchon the taxpayer had an .option to purchase property for $5,000,000, which in the Lamprecht Case, supra, was found to be reasonably worth more than $2,250,000 in excess of the 'agreed purchase price to the defendant corporation. The evidence in that case on value ranges from something less than $8,-000,000 as a minimum to $12,500,000 as the maximum. Prior to the Pynchon transaction this increment of value inherent in the Swiss bargain with Union was unavailable to Swiss because it could not finance the deal.

Following the transfer of the option to Pynchon, and there is little doubt that the option was so transferred, the Board .making no finding to the contrary, this increment of value was with Pynchon. But Pynchon was not an oil operator. It dealt in securities, and it held the option subject to obligations involved in the financing plan. When the option was re-transferred to Swiss, the latter’s situation had completely changed. It now held cash more than sufficient to meet the initial payment to Union stockholders and the increment of value inherent in its bargain became something realizable.

What was before mere expectation became a capital asset, greatly increased the value of Swiss stock, and saved Swiss from the necessity of liquidation. (See the Lamprecht opinion, supra.) For this changed situation it was willing, indeed obliged, to pay. The payment was made in its stock. In a very true sense the fair value of that stock was an element in the cost to it of the Union properties, and should have been so considered in arriving at the base upon which to compute depletion. The Board member made no finding of the value of the Swiss stock. We are empowered to make none.

It is true that an inference as to value arises from the determination by the Board member of the discount on Swiss notes permitted to be amortized over the period they were to run. But such inference does not warrant our invasion of the fact finding function of the Board. Besides, there is more than a suggestion in the memorandum opinion that a value of $350,000 inferentially assigned to the Swiss stock for purposes of amortizing discount on Swiss notes, was based not upon any evidence in the case but upon a suggested settlement agreeable to Swiss but declined by the Commissioner.

Compromise offers or acceptances are not to be substituted for evidence on questions of value. The decision of the Board should be set aside and the cause remanded for a determination of the fair value of the Swiss stock as an element in the cost of acquiring the Union stock and for establishing the fair base for computing depletion. The case was decided upon the theory that the liquidation of the Union Company resulted in taxable gain to Swiss, and on the theory that the value of the stock conyeyed to Pynchon formed no element of the cost of Union stock to Swiss.

Accordingly the base for computation of depletion was determined to be $5,000,000, and the discount on the Swiss notes to be amortized over the period they were to run was determined to be $600,000. The latter figure was arrived at inferentially at least by considering the stock as paid for in cash, dollar for dollar, on the basis of a value of $350,000, leaving a cash consideration for the $2,000,000 of notes of $1,400,000. This discount was amortized over the period involved.

The Commissioner, conceiving that if the Board’s decision is set aside or modified on either or both of the principal issues raised, its determination of allowable deductions for discount and depletion should not stand, petitioned for review of the Board’s decision in respect to both discount and depletion for the years 1927 to 1930 inclusive. In view of our conclusions upon the main issues, the decision should be set aside in respect to deductions for each year involved and allowable deductions redetermined.

The decisions of the Board of Tax Appeals are therefore reversed, and the causes remanded for further proceedings in conformity herewith.