Opinion · United States Tax Court

W. W. Windle Co. v. Commissioner

W. W. Windle Co. v. Comm’r, 65 T.C. 694 (T.C. 1976)

Type
Opinion
Court
United States Tax Court
Jurisdiction
Federal
Date
1976-01-07
Topic
general

How later courts describe this case

  • holding that where a substantial investment motive exists in a predominantly business-motivated acquisition of corporate stock, the stock is a capital asset
  • acknowledging that “there must be limits to the liberties we can take with the statutory language of section 1221” because “[wjords are not infinitely elastic”
  • where a loss was involved

Citator

UpLaw has not yet analyzed W. W. Windle Co. v. Commissioner. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
72 opinions
W. W. WINDLE CO. v. COMMISSIONER OF INTERNAL REVENUE,65 T.C. 694(1976)
W. W. WINDLE COMPANY, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE,
RESPONDENT
Docket No. 9426-72.
United States Tax Court.
Filed January 7, 1976.
Petitioner, a wool processor, created Nor-West and acquired 72 percent of its stock, to manufacture woolen cloth. Petitioner's predominant motive for creating Nor-West was to have a captive customer for its processed wool. A secondary motive was to make a profitable investment. Petitioner subsequently made repeated loans and advances to Nor-West, which after 9 generally unsuccessful years went bankrupt.Held:On the facts, petitioner's stock in Nor-West was a capital asset in its hands and petitioner's losses therefrom were capital losses. The existence of a substantial investment motive precludes the applicability of the doctrine ofCornProducts Co. v. Commissioner,350 U.S. 46(1955), even where a business motive predominates.Held, further,loans and accounts receivable due petitioner from Nor-West were debt, and not equity in Nor-West.
Raymond T. Mahon,for the petitioner.Justin S. Holden,for the respondent.
HALL,Judge:
Respondent determined a $139,114.17 deficiency in petitioner's Federal income tax for its taxable year ended June 30, 1970. The three issues presented are:

(1) Whether the 3600 shares of capital stock of Nor-West Fabrics, Inc., owned by petitioner were capital assets in petitioner's hands when the stock became worthless during petitioner's taxable year ended June 30, 1970.

(2) Whether petitioner's loans to Nor-West Fabrics, Inc., which remained unpaid when Nor-West Fabrics, Inc., was liquidated in June 1970, constituted debt or equity in petitioner's hands.

(3) Whether petitioner's accounts receivable due from Nor-West Fabrics, Inc., for merchandise sold to Nor-West Fabrics, Inc., which became worthless during petitioner's taxable year ended June 30, 1970, constituted debt or equity in petitioner's hands.Page 695
FINDINGS OF FACT
Some of the facts have been stipulated and are found accordingly.

Petitioner was incorporated in Massachusetts in 1912 and had its principal place of business in Millbury, Mass., when it filed its petition. Petitioner filed its corporate income tax return for its taxable year ended June 30, 1970, with the Internal Revenue Service Center in Andover, Mass. Petitioner keeps its books and records on the accrual method of accounting.

Since 1912 petitioner has been engaged in the business of processing and selling raw woolen stock and other woolen materials used by manufacturers of woolen cloth. During the 1950's the woolen textile industry encountered severe economic problems, primarily due to increased competition from abroad. During this period many woolen textile mills which had been customers of petitioner cut back on production or went out of business because of an inability to operate profitably. Approximately 27 woolen mills which had been customers of petitioner went out of business between 1956 and 1960, and petitioner's sales declined from about $9.5 million in 1956 to $3 million in 1961.1

In 1960 Portland Woolen Mills of Portland, Oreg., one of petitioner's customers, went out of business. Petitioner's sales to Portland Woolen Mills had exceeded $218,000 in 1959. Shortly thereafter, petitioner contacted Robert Pickins, the former vice president and general manager of Portland Woolen Mills, and discussed whether petitioner could purchase some key machinery from Portland Woolen Mills to establish its own woolen mill on the West Coast. Pickins referred the matter to McMinnville Industrial Promotions, Inc., a business group in McMinnville, Oreg., interested in promoting businesses to come into the McMinnville area. After studying the matter further and discussions with the McMinnville group, petitioner agreed to organize an Oregon corporation to be known as Nor-West Fabrics, Inc. (hereinafter Nor-West), to operate a woolen textilePage 696mill in McMinnville. The McMinnville group agreed to build a factory which it would lease to Nor-West. Petitioner, which would otherwise have desired to own all the stock of Nor-West, decided that it should sell some of the stock of Nor-West to local people in order to foster local interest in the Nor-West venture.

Nor-West was incorporated in Oregon on February 15, 1961, and engaged in the business of manufacturing and selling woolen cloth. The authorized capital stock of Nor-West was 10,000 shares of common stock with a par value of $100 per share. Only 5,000 shares were issued and outstanding. Of these, petitioner acquired 3,600 shares on June 5, 1961, for $360,000 (consisting of $210,000 cash, and textile machinery and equipment valued at $150,000 which petitioner had purchased from the defunct Portland Woolen Mills on November 30, 1960, for $150,000). The remaining 1,400 shares of the common stock of Nor-West were purchased between March 9, 1961, and June 5, 1961, for $140,000 cash by approximately 594 different individuals and businesses located in the McMinnville area.

Before the petitioner purchased stock in Nor-West, it had investigated the feasibility of conducting a profitable woolen mill in the Pacific Northwest and had concluded that it could be done. Petitioner's president, Winfred W. Windle, had contacted Charles Carter, former president of Portland Woolen Mills, who had assured him that there was a place on the West Coast for such a mill. Carter felt that a relatively small mill could be operated at a profit whereas Portland Woolen Mills, which had been a large woolen mill, could not. In addition, before petitioner purchased stock in Nor-West, it conducted studies and prepared forecasts concerning Nor-West's expected sales, materials requirements, expenses, and profit for the period October 1961 through September 1963.2Research indicated that Nor-West could reasonably be expected to operate profitably. However, petitioner was aware that in view of the general decline in the woolen industry, a new woolen cloth mill was not justifiable as an investment on its own merits without reference to the acquisition of a captive customer, and that there was substantial risk that Nor-West might not in fact prove profitable.

At the time petitioner acquired its stock in Nor-West it expected to supply all of Nor-West's raw materials requirements.Page 697Petitioner, as owner of the controlling interest in Nor-West, had complete control of the buying policies of Nor-West. Petitioner viewed Nor-West as a captive customer for its raw woolen stock. Petitioner expected that Nor-West would need about $900,000 of raw woolen stock annually in order to conduct its manufacturing operations. Petitioner was aware that as long as Nor-West continued operating, petitioner would be able to make profitable sales to Nor-West, even if Nor-West itself did not prove very profitable or just broke even.

When petitioner acquired its stock interest in Nor-West, it did not expect that dividends would be paid on the Nor-West stock. At that time, companies engaged in the woolen textile business were having difficulties remaining solvent and in general were not paying dividends. In fact, Nor-West never paid any dividends. Petitioner did, however, expect the value of its equity interest in Nor-West to increase over time, and expected Nor-West to remain in business at a profit and to continue to buy its raw woolen stock from petitioner.

Petitioner's sales of raw woolen stock and other woolen materials to Nor-West were as follows:Years or periods Amounts of sales
November and December 1961 ............. $28,309.47 Year ended Dec. 31, 1962 ............... 151,931.23 Jan. 1, 1963, to June 30, 1963 ......... 64,844.95 Year ended June 30, 1964 ............... 126,681.03 Year ended June 30, 1965 ............... 170,700.53 Year ended June 30, 1966 ............... 369,773.70 Year ended June 30, 1967 ............... 275,480.63 Year ended June 30, 1968 ............... 335,876.06 Year ended June 30, 1969 ............... 451,086.90 Year ended June 30, 1970 ............... 328,055.08 ------------ Total ................................ 2,302,739.58


These sales by the petitioner to Nor-West fulfilled about 99 percent of Nor-West's materials requirements.

Petitioner's profit on the sales to Nor-West varied on each shipment because inventory costs varied from day to day, depending upon the price for raw wool on the open market. The gross profit in each year (which varied between 8.4 percent and 20.7 percent) was substantially equal to petitioner's net profit on sales to Nor-West.3This was because little of the petitioner'sPage 698annual selling and administrative costs were allocable to its business with Nor-West, a captive customer. Petitioner recorded a profit on all of its sales to Nor-West, including those made during the years when Nor-West was losing money in its operations.

Although petitioner had expected Nor-West to operate profitably, Nor-West suffered operating losses in all of its years except its taxable years ended November 30, 1965, and November 30, 1966. Nor-West's actual sales were far below projected levels. Nor-West's sales and profits or losses for its years of operation were as follows:
Net profitFYE Nov. 30 — Sales (or loss)

1962 .......................... $428,282.00 ($113,488.00) 1963 .......................... 641,918.00 (34,030.00) 1964 .......................... 517,687.00 (99,546.00) 1965 .......................... 943,765.31 51,451.47 1966 .......................... 1,269,341.57 51,661.53 1967 .......................... 886,666.43 (29,889.94) 1968 .......................... 1,250,411.18 (128,329.60) 1969 .......................... 1,144,838.91 (137,261.43)
The principal reason why Nor-West was unable to operate profitably was that sales volume never reached the expected level shown in the projections. This was attributable to the fact that many of the business concerns which had promised to place orders with Nor-West either never fulfilled those promises or placed smaller orders than originally promised. In addition, the price that Nor-West could charge for its woolen cloth continued to fall throughout the early 1960's due to increased competition from abroad, while fixed overhead remained constant orPage 699increased. Also, Nor-West suffered storm damage to its plant in the latter part of 1962, which forced the closing of the plant for about 3 months at a crucial time in its production schedule.

To turn Nor-West into a profitable business it had to obtain more sales outlets. In 1963, Nor-West negotiated a contract with a new selling agent, Schneidewind of California. Under this agreement Schneidewind was to style and merchandise Nor-West's woolen cloth on an exclusive basis. Nor-West felt that giving Schneidewind an exclusive agency contract might motivate Schneidewind to exert greater selling efforts on Nor-West's behalf.

Beginning in 1963 and continuing through 1970, petitioner attempted to arrange an affiliation or merger of some sort between Nor-West and other woolen manufacturers, notably Rossville Yarns, Pendleton Woolen Mills, and Haywood Schuster Woolen Mills. Petitioner wanted to improve Nor-West's sales performance under an arrangement which would also enable petitioner to continue selling raw woolen stock to Nor-West or its successor.

In the latter part of 1963, in the interests of economy and efficiency, all of Nor-West's accounting, bookkeeping, billing, and collection activities were moved to the corporate offices of petitioner in Millbury, Mass.

In June 1964 petitioner began loaning money to Nor-West to satisfy its operating capital needs because Nor-West was unable to obtain such operating capital through bank loans or any other source. All loans were evidenced by interest-bearing promissory notes payable to the petitioner. With the exception of the February 16, 1965, loan, all were payable on demand. The due date of the February 16, 1965, loan was May 17, 1965. The amounts and dates of these loans, the rates of interest and the dates of repayment, if any, by Nor-West were as follows:
Rate of Date ofDate of loan Amount interest repayment

June 30, 1964 ............. $20,000 Unknown Sept. 30, 1965 July 31, 1964 ............. 5,000 Unknown Aug. 31, 1964 Jan. 22, 1965 ............. 10,000 6% Aug. 29, 1966 Feb. 16, 1965 ............. 15,000 6% Nov. 1, 1965 Apr. 13, 1965 ............. 5,000 6% Aug. 29, 1966 May 5, 1965 ............... 4,000 6% Aug. 29, 1966 Jan. 28, 1966 ............. 10,000 6% June 21, 1967Page 700Dec. 27, 1966 ............. 20,000 7% June 7, 1968 May 2, 1967 ............... 15,000 6 1/4% _____4Feb. 7, 1968 .............. 15,000 6 3/4% _____5Dec. 2, 1968 .............. 50,000 7 1/2% Aug. 18, 1969 Dec. 2, 1968 .............. 50,000 7 1/2% _____6Feb. 19, 1969 ............. 50,000 9% _____ Feb. 27, 1969 ............. 20,000 9% _____ Mar. 5, 1969 .............. 13,000 9% _____ Apr. 1, 1969 .............. 15,000 9% _____ Apr. 1, 1969 .............. 15,000 9% _____ Aug. 14, 1969 ............. 50,000 9% _____ Aug. 27, 1969 ............. 10,000 9% _____ Oct. 6, 1969 .............. 47,000 9% _____ Jan. 22, 1970 ............. 100,000 9% _____
Petitioner also found it necessary to advance cash to Nor-West on open account in the amounts of $2,000 on September 30, 1969, $11,000 on December 31, 1969, and $32,000 on January 31, 1970. None of the other stockholders of Nor-West ever loaned any money to Nor-West.

On January 13, 1965, a security agreement was executed between petitioner and Nor-West granting petitioner a security interest in all of Nor-West's machinery, equipment, tools, appliances and other production items, finished inventory, raw materials, supplies, and accounts receivable existing on the date of the security agreement or arising thereafter. This collateral was security for the $10,000 loan made by petitioner to Nor-West on January 22, 1965, and for any future advances or other value given by petitioner to Nor-West. On February 15, 1965, as required by the Uniform Commercial Code, petitioner filed notice of its security interest in Nor-West's property with the office of the county clerk for Yamhill County, Oreg., where Nor-West was located.

During the years 1967, 1968, and 1969, Nor-West was unable to meet its current obligations. Petitioner advanced funds to Nor-West to allow Nor-West to meet its current debts and continue inPage 701operation. By 1967, petitioner had abandoned any realistic expectation that its investment in Nor-West would prove profitable as an investment. Its motive for making the advances in 1967, 1968, and 1969 was to preserve Nor-West as a captive customer.

In April 1970 petitioner had an appraisal made of Nor-West's machinery and equipment by Dunn Corp., which specializes in the appraisal of textile machinery, and was advised that Nor-West's machinery and equipment alone, without considering its inventory and receivables, had a going-concern value of $279,098.75 and a liquidation value of $122,629.25. Nor-West itself had two independent appraisals of its machinery and equipment made shortly prior to June 12, 1970, which indicated a value of between $100,000 and $110,000.

All of the interest due on its notes receivable from Nor-West was paid to petitioner and reported as interest income on the petitioner's income tax returns.7

Petitioner's credit sales of inventory material to Nor-West were made on the same basis as those sales to its other customers. Petitioner's sales of inventory material to Nor-West were recorded in petitioner's accounts receivable ledger and were reported as income on petitioner's Federal income tax returns.Page 702

As of November 30, 1968, taking into account the debts owed to petitioner, the total book value of Nor-West's assets was $438,552.36, with total liabilities of $240,785.45. As of November 30, 1969, its assets and liabilities were $385,524.13 and $325,018.65, respectively.

On May 28, 1970, the board of directors of Nor-West voted to recommend to the stockholders that the corporation cease operations and be liquidated and dissolved in accordance with a plan of liquidation adopted by the directors at that meeting. They cited as reasons for their recommendation the expected heavy losses in the fiscal year scheduled to end on November 30, 1970, the inability to obtain operating capital, and the poor business conditions prevailing at the time which made it unlikely that the corporation could be operated profitably.

On June 16, 1970, the stockholders of Nor-West voted to adopt the plan of liquidation that had been approved at the May 28, 1970, directors meeting. Under the plan (a) the corporation would cease operations immediately except for completing any work already in process; (b) the assets of the corporation would be liquidated and the creditors of the corporation paid off to the extent possible out of the proceeds from the assets; and (c) the corporation would be voluntarily dissolved under the laws of the State of Oregon.

Nor-West ceased operations during the last week of June 1970, and was dissolved on December 28, 1970. At the time Nor-West was liquidated in June 1970, nine of petitioner's loans to Nor-West in the total principal amount of $320,000 remained unpaid. Furthermore, at that time petitioner had an outstanding raw material account receivable due from Nor-West in the amount of $124,514.60.

On June 11, 1970, petitioner sent to Nor-West by registered mail a formal demand for payment of its outstanding loans totaling $320,000. On June 12, 1970, petitioner sent to Nor-West by registered mail a formal notice which declared that since Nor-West had failed to honor petitioner's demand for repayment of the $320,000, petitioner was enforcing the security interest which it had in Nor-West's assets under the January 13, 1965, security agreement and was accordingly taking possession of all of Nor-West's assets. Approximately 1 week later, petitioner sent a representative to Nor-West's place of business in Oregon to labelPage 703all of the machinery and equipment as subject to petitioner's security interest therein.

Petitioner realized $127,514 on the subsequent sale of Nor-West's assets. Petitioner applied the $127,514 against the $320,000 balance on its outstanding notes receivable due from Nor-West. Aside from this $127,514, petitioner recovered nothing in satisfaction of the notes receivable owed by Nor-West. The remaining unpaid balance of petitioner's loans to Nor-West was $192,486. Petitioner also recovered nothing on the $124,514.60 accounts receivable owed to it by Nor-West.

Since Nor-West's assets were insufficient to satisfy all of its creditors, none of the stockholders of Nor-West received anything in exchange for their stock upon the liquidation of Nor-West.

Petitioner employs the specific chargeoff method with respect to bad debts. As of June 30, 1970, petitioner knew that neither the stockholders nor the unsecured creditors of Nor-West would receive any proceeds from the liquidation since it was clear that Nor-West's assets would not be sufficient to pay off all of its secured creditors. In addition, as of June 30, 1970, petitioner knew with reasonable certainty that the amount which it would recover as a secured creditor on the liquidation of Nor-West would not exceed $128,000. Accordingly, petitioner credited $128,000 against its notes receivable due from Nor-West, and claimed an ordinary deduction for the $192,000 unpaid balance of the notes receivable on its Federal income tax return for the taxable year ended June 30, 1970.
ULTIMATE FINDINGS OF FACT
(1) Petitioner's predominant motive in purchasing the stock of Nor-West was to acquire a captive customer; its secondary and substantial motive was to acquire an investment.

(2) The loans and accounts receivable due petitioner from Nor-West were debt, and not equity in Nor-West.
OPINION
Petitioner first contends that it acquired the 3600 shares of common stock of Nor-West in 1961, and retained them until June 1970, solely for reasons germane to its business, and without any investment motive, and therefore the shares were not capital assets in petitioner's hands. As a result, petitioner argues, uponPage 704the stock becoming worthless it is entitled either to an ordinary business loss deduction under section 165(a)8or an ordinary and necessary business expense deduction under section 162(a).9

Respondent asserts that the shares of Nor-West stock held by petitioner were capital assets in petitioner's hands because petitioner purchased the stock for an investment, or because petitioner was at least partially motivated to purchase the stock for investment reasons and such motive, however minute, taints the business purpose. Therefore, respondent argues, petitioner is entitled only to a capital loss upon the stock becoming worthless.10

We hold for respondent on the ground that, while petitioner's principal motive was to acquire a captive customer, it had a substantial subsidiary investment motive, which prevented it from being entitled to an ordinary loss.

Petitioner was in the business of processing and selling raw wool and other woolen materials used by the manufacturers of woolen cloth. During the 1950's the woolen textile industry in the United States was facing severe economic problems due primarily to increased competition from abroad. During this period approximately 27 woolen mills which had been customers of petitioner went out of business and petitioner's sales declined from $9.5 million in 1956 to $3 million in 1961.

One of petitioner's good customers, Portland Woolen Mills in Portland, Oreg., went out of business in 1960. After careful research, and after consultation with the former executives of Portland Woolen Mills and with the McMinnville Industrial Promotions, Inc., a business group in the Portland area devoted to bringing business into the McMinnville area, petitioner decided to organize an Oregon corporation to go into the woolen textile business on a smaller scale than that of Portland Woolen Mills. The new corporation, Nor-West, bought its equipment fromPage 705Portland Woolen Mills, and the McMinnville group built and leased to it a factory building. Seventy-two percent of the stock of Nor-West was purchased by petitioner, and 28 percent by McMinnville area individuals and businesses.

When petitioner purchased stock in Nor-West, it did not anticipate receiving dividends from Nor-West, but it did expect the business to grow and prosper and increase in value, while well recognizing the risk that it might not, in view of the generally depressed conditions in the woolen industry. It also expected Nor-West to buy all its wool inventory from petitioner at a profit to petitioner. The latter expectation was less speculative than the former, however, for as long as Nor-West could stay in business at all, even if it did not prove to be very profitable, it would be an assured captive customer. Petitioner's primary motive in investing in Nor-West was to obtain a captive customer. Its investment motive, while substantial, was secondary.11

Petitioner projected selling about $900,000 of inventory to Nor-West annually. Although petitioner never reached that level of sales, it did sell more than $2.3 million worth of inventory to Nor-West during its 9-year life. Although petitioner cannot calculate the exact profit it made on these sales, its gross profit percentage on sales during this period varied between 8.4 percent and 20.7 percent, and it estimated, we believe reasonably, that probably its net profit percentage to Nor-West was close to its gross-profit percentage since it had little added selling or administrative expense attributable to sales to a captive customer such as Nor-West. Based on sales projections, petitioner's pretax net profit would have been from around $75,600 to $186,300 per year from planned sales to Nor-West.

Petitioner projected that Nor-West would make a pretax profit of about $138,550 the first year and $220,320 the second year. Petitioner would have enjoyed 72 percent of these profits, or about $100,000 the first year and $159,000 the second. These projections make it impossible for us to find that there was no substantial investment motive. Had the projections been realized, Nor-West would have been a good investment. We cannot find that these projections were not significant in giving rise to the decision to acquire the Nor-West stock. And the testimony ofPage 706petitioner's witnesses does not appear to be to the contrary. No projections were apparently made for later years. While the anticipated profits with respect to petitioner's stock in Nor-West were comparable to its anticipated profits on sales to Nor-West, the confidence factor for the former was clearly much lower, particularly in view of the longrun decline in the woolen industry and serious concern regarding its longrun future. While the projections themselves do not establish conclusively that either motive predominates, the general factual background in this case, petitioner's willingness to bring in minority interests, and the uncontradicted and credible testimony convince us that a predominantly sales motive existed. In fact Nor-West experienced losses in all years except its fourth and fifth years. If petitioner had been primarily interested in Nor-West as an investment, it might well have pulled out sooner than 9 years down the road. But during this entire 9 years, as the sole seller of woolen inventory to Nor-West, petitioner was enjoying annual profits on those sales and was actively seeking ways to increase Nor-West's own sales and turn the company into a viable business. We conclude that by 1967 any substantial thought of Nor-West as a hopeful investment opportunity had disappeared, and subsequent advances to Nor-West were made solely to keep it in being as a captive customer. At best, the hope was that it could be made to break even and repay the advances.

We were impressed with the credibility and demeanor of petitioner's witnesses. Their statements of their subjective motives generally coincide with the objective facts in this case. On the basis of the entire record we have found that petitioner's predominant motive in acquiring Nor-West stock was to acquire a captive customer, and that its secondary reason was to make an investment in a business it expected to succeed and grow.

Having reached these factual conclusions, we next look to the state of the law. It has become well-established that the term "capital assets" excludes items in addition to those specifically excluded from the term "capital asset" as defined in section 1221.12InCorn Products Refining Co. v. Commissioner,Page 707350 U.S. 46(1955), the Supreme Court, in holding that corn futures contracts the taxpayer purchased and sold were not capital assets, stated:

Admittedly, petitioner's corn futures do not come within the literal language of the exclusions set out in [sec. 117(a)].13They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of § 117 must not be so broadly applied as to defeat rather than further the purpose of Congress.Burnetv.Harmel,287 U.S. 103,108. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. The preferential treatment provided by § 117 applies to transactions in property which are not the normal source of business income. It was intended "to relieve the taxpayer from * * * excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions."Burnetv.Harmel,287 U.S. at 106. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. This Court has always construed narrowly the term "capital assets" in § 117. SeeHortv.Commissioner,313 U.S. 28,31;Kieselbachv.Commissioner,317 U.S. 399,403. [350 U.S. at 51-52.]

TheCorn Productsdoctrine has since been applied in many situations by this Court and others, including situations involving the purchase of securities in another corporation. The issue on which the cases turn is whether the securities were purchased not for investment, but for business reasons. As statedPage 708inBooth Newspapers, Inc. v. United States,303 F.2d 916,921(Ct.Cl. 1962):

if securities are purchased by a taxpayer as an integral and necessary act in the conduct of his business, and continue to be so held until the time of their sale, any loss incurred as a result thereof may be fully deducted from gross income as a business expense or ordinary loss. If, on the other hand, an investment purpose be found to have motivated the purchase or holding of the securities, any loss realized upon their ultimate disposition must be treated in accord with the capital asset provisions of the Code.Booth Newspapersinvolved the purchase of stock of a paper mill company to assure the taxpayers a supply of newsprint at a time when there were serious shortages of such paper. See alsoElectrical Fittings Corp.,33 T.C. 1026(1960), andFSServices, Inc. v. United States,413 F.2d 548(Ct.Cl. 1969), other cases where the taxpayer purchased stock in a company in order to assure a source of supply, and such stock was held to be a noncapital asset.

Other applications of theCorn Productsprinciple are found inSchlumberger Technology Corp. v. United States,443 F.2d 1115(5th Cir. 1971) (purchase of stock and loans to new company to obtain services of certain individuals);Chemplast,Inc.,60 T.C. 623(1973), affd. in an unpublished opinion (3d Cir. 1974) (loans to new corporation to acquire services of a particular individual);Steadman v. Commissioner,424 F.2d 1(6th Cir. 1970), affg.50 T.C. 369(1968), cert. denied400 U.S. 869(1970) (advance of funds to a corporation by an attorney to protect his position as its secretary and general counsel);John J. Grier Co. v. United States,328 F.2d 163(7th Cir. 1964) (purchase of stock in order to safeguard rights under a lease covering premises used for a restaurant business);Commissioner v. Bagley Sewall Co.,221 F.2d 944(2d Cir. 1955), affg.20 T.C. 983(1953) (loss on Government bonds acquired for deposit in escrow to discharge a contract obligation);International Flavors Fragrances Inc.,62 T.C. 232(1974), revd. and remanded524 F.2d 357(2d Cir. 1975) (gain on sale of pound-sterling short-sale contract, used to hedge investment in British subsidiary).

The case primarily relied upon by petitioner isWaterman,Largen Co. v. United States,419 F.2d 845(Ct.Cl. 1969), cert. denied400 U.S. 869(1970). The taxpayer in that case was a commission sales agent for various woolen mills. One such mill, which paid taxpayer about $25,000 per year in commissions, was aboutPage 709to go out of business in 1959 because of the economic problems then affecting the woolen industry. The corporation which operated the mill was reorganized in South Carolina where there was a better labor market, and taxpayer was offered a chance to act as exclusive sales agent for all the woolen products of the reorganized corporation if the taxpayer would invest $100,000 in the capital stock of the reorganized corporation. The taxpayer made the investment in the hopes it could earn annual sales commissions of $60,000 from the new corporation. However, the woolen industry continued to experience difficulties and the taxpayer made only very small commissions before finally selling out its interest in the reorganized corporation for $25,000. The taxpayer claimed a $75,000 ordinary deduction, which the Court of Claims sustained. See alsoHagan v. UnitedStates,221 F. Supp. 248(W.D. Ark. 1963) (salesman purchased stock in customer's business to continue an exclusive purchases arrangement), andSoutheastern Aviation Underwriters, Inc.,25 T.C.M. 412, 35 P-H Memo. T.C. par. 66,075 (1966) (aviation insurance manager purchased shares in insurance company to obtain an aviation insurance management contract like the one on which taxpayer had previously earned substantial commissions).

But, respondent argues, if petitioner has any investment motive at all, even a subordinate motive, such motive taints the business nature of the transaction, and the stock is a capital asset, citingDearborn Co. v. United States,444 F.2d 1145(Ct.Cl. 1971);Duffey v. Lethert,11 AFTR 2d 1317, 63-1 USTC par. 9442 (D. Minn. 1963), andMidland Distributors, Inc.v. United States,481 F.2d 730(5th Cir. 1973).14While the latter two cases recognize that there can be mixed motives in a taxpayer's acquiring stock in another corporation, that is, investment motives and business motives, there was no question that the predominant motive in each case, if not the sole motive, was an investment motive. However, inDearborn Co. the Court of Claims found that the parent corporation, a furniture seller, purchased stock in a wood raw materials supplier for two reasons: (a) It intended to operate the supplier as a permanent, profitablePage 710business in its own right, to receive dividends on its stock, and to earn management fee income, all found to be investment motives; and (b) it sought to acquire a source of raw materials needed in its subsidiary's business of manufacturing furniture, a business purpose. The Court of Claims concluded that because the parent was motivated by a substantial investment motive, the stock acquired was a capital asset in the taxpayer's hands, even though the principal reason for acquiring the stock was to acquire the company's supply and production facilities, a business purpose. The Court found investment purpose in the following facts: no premium over fair market value was paid for the stock; the investment was permanent rather than temporary; and an investment profit was anticipated. In the more recent decision ofAgway, Inc. v. United States,524 F.2d 1194(Ct. Cl. 1975), the Court of Claims, relying onDearborn,upheld a taxpayer's claim to capital gain treatment on the redemption of preferred stock in an agricultural cooperative. The court, speaking by Judge Nichols, refused to apply theCorn Productsdoctrine, and suggested that "Corn Productshas been applied in lower courts in a variety of situations which possibly might surprise theCorn Productscourt."Agway, Inc. v. UnitedStates,524 F.2d at 1200. InAgway,there was a substantial investment motive as well as the need to acquire a source of supply. The Court of Claims stated that "Corn Productswill be applied in this Court to purchases of company stock to obtain a source of supply,only if there is no substantial investmentintent." (Emphasis added.)Agway, Inc. v. United States,524 F.2d at 1201.

Despite the recent date of theAgwaydecision, and its reliance onDearborn,the point of view there expressed is apparently controverted by another Court of Claims decision released the same day,Union Pacific Railroad Co., Inc. v.United States,524 F.2d 1343(Ct.Cl. 1975). In that case, the court held that stock in certain subsidiary railroad corporations did not constitute capital assets in the hands of the parent railroad corporation, because —

the acquisition of the stock cannot be treated asa mereinvestment unrelated to the business operationsof the plaintiff. It was accomplished for an operating, business purpose and the stock was held as part of the operation of plaintiff's business as a railroad. [Emphasis added;524 F.2d at 1359.]

In dissent, Judge Nichols, the author of theAgwayopinion, stated that the court had not applied the tests used inDearborn.Page 711He observed that the investment in the stock was intended to be permanent, and that the plaintiff had not met its burden of proof regarding the other tests (payment of a premium for the stock and expectation of investment profit). While not disputing the fact that the purchased railroads were integrated with the plaintiff's business operations, he would have found the stock to be a capital asset because of the plaintiff's failure to show the absence of a concurrent investment motive.

Analysis ofUnion Pacificis made somewhat more difficult because the trial judge, whose opinion on this point was adopted by the court, used language which taken out of context could be said to bespeak a finding ofabsenceof investment purpose, rather than a mere finding of dominant business purpose.

If anything, the leases that followed confirm the conclusionof business and not investmentpurpose * * *. The plaintiff bought the stock to run the railroadand not to make aninvestment* * * [Emphasis added;524 F.2d at 1359.]

Despite this language, the nature of the test seemingly applied for capital asset status is "a mere investment unrelated to the business operations of the plaintiff," and there is no language in the opinion, other than the above generalization, negating an investment intent as well as affirming a business purpose. This leads us to conclude, with Judge Nichols, that the Court of Claims is currently of the view that the existence, or at least the dominance, of a substantial business purpose for a stock acquisition suffices to preclude capital asset status, whether or not there is a concurrent hope of investment gain. ThusUnion Pacificcasts serious doubt on the continued vitality ofDearbornin the Court of Claims, and seems inconsistent withAgway. SinceUnion Pacificwas decided by the full court, with only Judge Nichols dissenting, it appears more authoritative thanAgway. Agwaywas decided by a three-judge panel, with Judge Nichols writing the court's opinion, Senior Judge Durfee concurring in the result, and Judge Kashiwa (who was in the majority inUnion Pacific) dissenting on this issue.

We are now called upon to decide the same legal question which has seemingly so troubled the Court of Claims: When both investment and business motives exist but the business motive predominates, does the predominant business motive determine the nature of the asset in the taxpayer's hands? Or, as respondent argues, does the presence of an investment motive, albeitPage 712secondary, override the business motive for acquiring the stock? The investment here clearly had theDearbornfactors of permanence, lack of premium, and expectation of investment profit. On the premium question, 594 other investors paid the same per-share price as did petitioner.

There are persuasive arguments on either side of the question. At first blush it appears reasonable and in line with the resolution of analogous questions in other areas that the predominant motive for acquiring the asset should determine the character of the asset in the taxpayer's hands, and that if it is a business motive, the existence of a secondary investment motive should not make the asset a capital asset. Cf.United States v. Generes,405 U.S. 93(1972);Malat v. Riddell,383 U.S. 569(1966). Such an interpretation also seemingly gives effect to the Supreme Court's admonition that exclusions from the definition of capital asset should be broadly construed.Corn Products Refining Co. v. Commissioner, supraat 52. Moreover, in order to avoid giving taxpayers a "whipsaw" position, under which they could obtain ordinary loss treatment in the Court of Claims, and capital gain treatment here, we would be inclined (all other things being equal) to follow an unequivocal Court of Claims position.

On the other hand, we deal here with a judge-made addition to the statutory categories of noncapital assets, and we are not compelled by the case law to broaden such categories more than is required under a fair reading ofCorn Productsand other precedents.Corn Productsdealt with commodity futures, not stock. Its doctrine has frequently been applied to shares of stock, and cases such asWaterman, Largen Co. are fairly close on their facts to ours. However, as pointed out inAgway,Inc. v. United States,524 F.2d at 1201,Waterman, Largen Co. did not involve a finding of the existence of any investment intent, and therefore is not directly in point.

Nor are our own precedents controlling, as in no reported decision have we yet squarely faced and ruled upon the mixed-motive situation. As pointed out, the Court of Claims cases are equivocal and recent Court of Claims authority can be cited for either proposition.

We are ultimately persuaded to hold that stock purchased with a substantial investment purpose is a capital asset even if there is a more substantial business motive for the purchase. There arePage 713two basic reasons for this holding. In the first place, to expand the statutory exceptions to "capital assets" into a mixed-motive case will be greatly to enlarge the far more limited category of noncapital assets which would otherwise exist. We would thereby be even more greatly expanding the "gray area" of uncertainty and controversy. Taxpayers would be presented with enlarged opportunities to claim ordinary losses on unsuccessful investments and capital gains on successful ones. And they would be put to their proof by respondent with respect to their subjective intent upon claiming capital gains on disposition of a wide array of successful (albeit business-related) stock investments. For example, most investments in foreign subsidiaries, which usually have an important degree of business integration with their parents, would pass into the gray area. Where given a choice, we should rule on the side of predictability.

Secondly, in the last analysis, Congress has decided what is a capital asset, and there must be limits to the liberties we can take with the statutory language of section 1221. Words are not infinitely elastic. Giving full effect to the Supreme Court's admonition inCorn Productsthat the statutory exclusion from the definition of capital assets should be broadly construed, we nevertheless must read that in light of the close relation to inventory of the assets in question in that case.

As we move from inventory-related corn futures to a more traditional form of capital asset, such as stock, we should be more reluctant to be innovative in further broadening the domain of subjective analysis and unpredictability. Accordingly, we hold that where a substantial investment motive exists in a predominantly business-motivated acquisition of corporate stock, such stock is a capital asset.

The next question is whether the subsequent effective abandonment of any investment motive as hard times befell Nor-West will change the result. We hold that it will not. To determine otherwise would put the taxpayer with mixed motives in a "heads I win, tails you lose" position, under which a successful investment would give rise to a capital gain, an unsuccessful one to an ordinary loss. The net effect would be to provide for business-related corporate stock tax treatment similar to that which Congress provided in section 1231 for assetsotherthan suchPage 714stock. We do not believe theCorn Productsdoctrine calls for such a result.15

Next we must consider whether the loans and accounts receivable payable to petitioner by Nor-West are debt or equity.16Whether loans and accounts receivable are debt or equity depends upon all the facts and circumstances. Among the tests we have applied here, and without reciting the familiar litany of case law on this issue, are the following:

(1) The debt-stock ratio of Nor-West was less than one-to-one, in that Nor-West had less debt than stock.

(2) The loans were made long after Nor-West was incorporated and only to furnish Nor-West with current operating capital, not to purchase capital assets.

(3) The loans were made solely by petitioner, and no loans were made by the other 594 shareholders, i.e., the loans were not proportionate to stock holdings.

(4) The loans were evidenced by interest-bearing promissory notes payable on demand. Interest due was in fact paid by Nor-West and included in petitioner's taxable income.

(5) Many of petitioner's loans to Nor-West were repaid, with the last repayment occurring on August 18, 1969.

(6) Petitioner's loans to Nor-West were secured by all Nor-West's assets, and petitioner in fact eventually foreclosed on its security.

(7) Petitioner's accounts receivable arose from credit sales of inventory to Nor-West, and petitioner, an accrual basis taxpayer, included all such sales in its taxable income in the years in which made.

Under the circumstances we conclude, and have found as a fact, that both the loans and accounts receivable were debt, not equity, and petitioner is entitled to a business bad debt loss with respect to each of them for the taxable year ended June 30, 1970.Decision will be entered under Rule 155.

Reviewed by the Court.Page 715
  1. This note was canceled on Apr. 1, 1969, and replaced by a new note dated Apr. 1, 1969, in the same amount. The sole purpose for the cancellation of the old note and the substitution of the new note was to raise the rate of interest from 6 1/4 percent to 9 percent. ↩
  2. This note was canceled on Apr. 1, 1969, and replaced by a new note dated Apr. 1, 1969, in the same amount. The sole purpose for the cancellation of the old note and the substitution of the new note was to raise the rate of interest from 6 3/4 percent to 9 percent. ↩
  3. This note was canceled on Aug. 14, 1969, and replaced by a new note dated Aug. 14, 1969, in the same amount. The sole purpose for the cancellation of the old note and the substitution of the new note was to raise the rate of interest from 7 1/2 percent to 9 percent. ↩
  4. The amount of petitioner's sales for each of these years was as follows:Year Sales
    1956 ............................... $9,500,000 1957 ............................... 6,400,000 1958 ............................... 4,300,000 1959 ............................... 7,300,000 1960 ............................... 5,600,000 1961 ............................... 3,000,000
    ↩
  5. The study projected pretax profits of approximately $138,550 the first year and $220,320 the second year. ↩
  6. Petitioner's net sales, gross profit on sales, and gross-profit percentage on sales during the taxable years 1961 to 1970, were as follows:
    Gross profitpercentageYear or period Net sales Gross profit on sales


    Year ended 12/31/61 ............ $2,661,272.32 $374,944.06 14.1 Year ended 12/31/62 ............ 2,834,869.86 492,366.52 17.4 1/1/63 to 6/30/63 ..... 1,605,250.15 241,904.80 15.1 Year ended 6/30/64 .... 3,493,034.34 451,501.92 12.9 Year ended 6/30/65 .... 3,442,964.76 475,062.13 13.8 Year ended 6/30/66 .... 4,846,221.14 407,384.68 8.4 Year ended 6/30/67 .... 3,616,444.81 324,599.88 9.0 Year ended 6/30/68 .... 3,418,808.04 474,065.34 13.9 Year ended 6/30/69 .... 3,812,109.43 400,035.97 10.5 Year ended 6/30/70 .... 2,899,698.00 599,513.00 20.7 ↩
  7. The interest income accrued by petitioner on its notes receivable from Nor-West and reported as income by the petitioner on its income tax returns was as follows in the years indicated:
    Accrued interest reportedas TYE June 30 —interest income
    1964 ............................ $246 1965 ............................ 1,705 1966 ............................ 2,142 1967 ............................ 1,625 1968 ............................ 2,653 1969 ............................ 9,089 1970 ............................ 22,620 ------- Total ......................... 40,080


    The amounts of interest actually paid by Nor-West to petitioner on its notes receivable from Nor-West, were as follows:
    Amount of Date ofpayment interest payment
    Nov. 1, 1965 ..................... $325.00 Aug. 29, 1966 .................... 1,994.00 June 27, 1967 .................... 838.34 June 7, 1968 ..................... 2,025.20 Apr. 10, 1969 .................... 6,131.83 Aug. 13, 1969 .................... 6,173.26 Oct. 6, 1969 ..................... 2,377.73 Jan. 28, 1970 .................... 4,932.75 Feb. 5, 1970 ..................... 1,706.31 Mar. 5, 1970 ..................... 2,209.31 Apr. 10, 1970 .................... 2,446.03 May 13, 1970 ..................... 2,367.12 June 3, 1970 ..................... 2,446.03 June 30, 1970 .................... 2,367.12 --------- Total .......................... 38,340.03
    ↩
  8. All section references are to the Internal Revenue Code of 1954, as in effect during the year in issue.

    Sec. 165(a) provides:

    (a) GENERAL RULE. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise. ↩
  9. Sec. 162(a) in relevant part provides:

    (a) IN GENERAL. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * * ↩
  10. The parties agree that the deductions in issue in this case are to be taken for petitioner's taxable year ended June 30, 1970, whether their character be capital or ordinary. ↩
  11. The other shareholders of Nor-West may also have had mixed motives in purchasing their stock, since at least those in the McMinnville group were interested in seeing new businesses locate in the McMinnville area. ↩
  12. Sec. 1221 provides:

    For purposes of this subtitle, the term "capital asset" means property held by the taxpayer (whether or not connected with his trade or business), but does not include —
    (1) stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business;
    (2) property, used in his trade or business, of a character which is subject to the allowance for depreciation provided in section 167, or real property used in his trade or business;
    (3) a copyright, a literary, musical, or artistic composition, a letter or memorandum, or similar property, held by —
    (A) a taxpayer whose personal efforts created such property,
    (B) in the case of a letter, memorandum, or similar property, a taxpayer for whom such property was prepared or produced, or
    (C) a taxpayer in whose hands the basis of such property is determined, for purposes of determining gain from a sale or exchange, in whole or part by reference to the basis of such property in the hands of a taxpayer described in subparagraph (A) or (B);
    (4) accounts or notes receivable acquired in the ordinary course of trade or business for services rendered or from the sale of property described in paragraph (1); or
    (5) an obligation of the United States or any of its possessions, or of a State or Territory, or any political subdivision thereof, or of the District of Columbia, issued on or after March 1, 1941, on a discount basis and payable without interest at a fixed maturity date not exceeding one year from the date of issue.
    ↩
  13. Sec. 117(a) is the predecessor of sec. 1221. ↩
  14. Respondent's position here appears inconsistent with that expressed in Rev. Rul.75-13, 1975-2 I.R.B. 6, in which respondent states that the issue is "whether the taxpayer purchased and held the stock with apredominantbusiness motive as distinguished from apredominantinvestment motive." (Emphasis added.) ↩
  15. In the converse situation, stock which is originally purchased for a business purpose can become a capital asset when the business motive disappears, leaving pure investment intent for continued retention. E.g.,Missisquoi Corp.,37 T.C. 791(1962). This result is not, however, inconsistent with the views we have expressed. It illustrates the fact that corporate stock is normally a capital asset, and that only where both original purpose of acquisition and the reason for continued retention are both devoid of substantial investment intent should the stock be treated otherwise. ↩
  16. The parties agree that if the loans and accounts are debts, they are business debts (as opposed to nonbusiness debts) deductible under section 166(a). ↩