dissenting: In my opinion the majority has erred in at least three important respects in determining that the litigation expenses in question were nondeductible capital expenditures.
First, the majority, although the only issue presented in the State court litigation out of which the expenses in question arose was the “real value” of the stock owned by Margaret M. Quigley and title to such stock was not at issue or in dispute, has failed to give effect to the primary purpose test which this and many other courts have recognized as controlling in the determination of the character of litigation expenses. The mere statement that such a question clouds the issue here presented is certainly not sufficient.
Secondly, the majority opinion is contrary to prior decisions of this and other courts, in particular, Walter S. Heller, 2 T.C. 371, affd. 147 F. 2d 376 (C.A. 9, 1945), certiorari denied 325 U.S. 868, and Smith Hotel Enterprises, Inc. v. Nelson, 236 F. Supp. 303 (D. Wisc. 1964), both of which involved State statutes similar to the Iowa statute involved herein. See also Naylor v. Commissioner, 203 F. 2d 346 (C.A. 5, 1953), reversing and remanding 17 T.C. 959. Both Heller and Naylor were followed by this Court in Raymond K. Dykema, a Memorandum Opinion dated Apr. 28, 1953, remanded by the Court of Appeals for the Sixth Circuit only because of an inconsistency in the findings affecting a part of the expenses involved. The rationale of the Naylor case was also approved in a court-reviewed opinion, of this Court, Otto C. Doering, Jr., 39 T.C. 647, 650, affirmed on other grounds 335 F. 2d 738 (C.A. 2, 1964). Although sometimes criticized, apparently for factual reasons, neither Heller nor Naylor has ever been overruled. The distinction of the Heller case suggested in footnote 5 of the majority opinion is hardly a valid one. In my opinion it is immaterial whether the purchaser or the seller instituted the litigation in question. I see no reason for treating the purchaser different than the seller.
Thirdly, Atzingen-Whitehouse Dairy, Inc., 36 T.C. 173, cited by the majority in support of its conclusion is clearly distinguishable on its facts. In that case there was no litigation of any character which might have required consideration of the primary purpose test. See Naylor v. Commissioner, supra. The only fees involved were those paid an attorney for attending conferences, preparing agreements, and handling other details necessary to consummate the purchase by a corporation of the stock of two dissident stockholders. Lucas v. Commissioner, 388 F. 2d 472 (C.A. 1, 1967) cited by the majority, is also factually distinguishable from the present case.
In my opinion, the litigation expenses incurred and paid by the petitioners in connection with the case of Woodward v. Quigley, 257 Iowa 1077, 133 N.W. 2d 38, on rehearing 136 N.W. 2d 280 (1965), were ordinary and necessary expenses paid for the management, conservation, or maintenance of property held for the production of income and as such, are deductible under the provisions of section 212 of the Internal Revenue Code of 1954.
Petitioners contend that Woodward v. Quigley, supra, out of which the litigation expenses in question arose, was an equitable action, the primary purpose of which was to determine the “real value” of the shares of stock owned by the dissenting stockholder, Margaret M. Quigley, and that the title to such stock was not at issue or in dispute.
As a general rule, the courts have consistently recognized that expenditures made in defense or perfection of title to capital assets are capital expenditures and are not deductible as ordinary and necessary expenses whether incurred in a trade or business or in connection with a nonbusiness transaction. Spangler v. Commissioner, 323 F. 2d 913 (C.A. 9, 1963), affirming a Memorandum Opinion of this Court; Robert L. Wilson, 37 T.C. 230, affirmed per curiam 313 F. 2d 636 (C.A. 5, 1963); Industrial Aggregate Co. v. United States, 284 F. 2d 639 (C.A. 8, 1960). It has also been held that litigation or other expenses incurred in the acquisition of stock or other capital assets are capital expenditures constituting a part of the cost of property and are not deductible. See Helvering v. Winmill, 305 U.S. 79 (1938), involving brokers’ purchase commissions; Atzingen-Whitehouse Dairy, Inc., 36 T.C. 173 (1961), involving fees paid an attorney for attending conferences, preparing agreements, and handling other details necessary to consummate the purchase by the corporation of the stock of two dissident stockholders; Iowa Southern Utilities Co. v. Commissioner, 333 F. 2d 382 (C.A. 8, 1964), certiorari denied 379 U.S. 946, affirming a Memorandum Opinion of this Court, wherein it was held that attorneys’ fees and expenses incurred in a successful stockholders derivative action and directed to be paid by the corporation were related to the recovery of capital assets and were not deductible as “ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business” under section 162(a) of the Internal Revenue Code of 1954; Robert L. Wilson, sufra, which held that legal expenses paid by a widow in perfecting her dower interest in the decedent’s property were capital expenditures, nondeductible under section 212 of the Internal Revenue Code of 1954.
At the same time, as was clearly pointed out by the Court of Appeals for the Eighth Circuit in Industrial Aggregate Co. v. United States, supra at 645, and in Iowa Southern Utilities Co. v. Commissioner, supra at 385-386, the mere fact that title to property happens to be involved in litigation does not necessarily mean that the litigation expenses are not deductible. The test is that of f rimary furfose. In the Industrial Aggregate Co. case, the court stated:
At the same time, ever since Kornhauser v. United States, 276 U.S. 145, 48 S. Ct. 219, 72 L. Ed. 505, cases recognize that the mere fact that title to property happens to be involved in litigation does not necessarily mean that expenditures of that litigation are automatically rendered nondeductible by the regulation. An example is Levitt & Sons v. Nunan, 2 Cir., 142 F. 2d 795, 797. Practicality and substance are to be recognized.9 The test which appears to have been established is that of primary purpose. Thus, if the primary or sole purpose of the suit is to perfect or defend title, the expenditures are not deductible. Shipp v. Commissioner, 9 Cir., 217 F. 2d 401, 402; Lewis v. Commissioner, 2 Cir., 253 F. 2d 821, 827-828; Garrett v. Crenshaw, 4 Cir., 196 F. 2d 185, 187; Addison v. Commissioner, 8 Cir., supra, at page 523 of 177 F. 2d. On the other hand, even though title may be involved, if its defense or perfection is not the primary purpose of the litigation, the expenditures do not encounter the barrier of the regulation’s standard and they may qualify instead as ordinary and necessary expenses. Rassenfoss v. Commissioner, 7 Cir., 158 F. 2d 764, 767-768; Sergievsky v. McNamara, D.C. S.D.N.Y., 135 F. Supp. 233, 237-238; Straub v. Granger, D.C.W.D. Pa., 143 F. Supp. 250, 254-255.10 [Footnotes omitted.]
See also Manufacturers Hanover Trust Co. v. United States, 312 F. 2d 785, 789 (Ct. Cl. 1963).
As was noted by the Court of Appeals for the Eighth Circuit in Industrial Aggregate Co. v. United States, supra at 645 fn. 10, the line of demarkation is not always apparent and each case is to be examined and decided on its owmfacts.
Under section 491.25 of the Iowa statutes, as interpreted by the Supreme Court of Iowa in State v. Shellsburg Grain & Lumber Co., 243 Iowa 734, 53 N.W. 2d 143 (1952); Terrell v. Ringgold County Mut. Telephone Co., 225 Iowa 994, 282 N.W. 702 (1938); and Melsha v. Tribune Pub. Co., 243 Iowa 350, 51 N.W. 2d 425 (1952), the duty of the majority stockholders to-purchase the stock of the dissenting stockholder arose as of the date the vote for renewal was taken. The statute imposed no duty on the corporation, as such, to purchase the stock of the dissenting stockholder, and its purchase by the majority stockholders was neither a condition precedent to the renewal of the corporate charter nor a condition subsequent to the continued existence of the corporation. The renewal of the corporate charter was effective upon the expiration of the existing charter. As held by the court in State v. Shellsburg Grain & Lumber Co., supra, the extent and nature of the liability created by the vote for renewal of the corporate charter were “matters of a purely private right between the two groups of stockholders to be determined in a proper proceeding.”
The case of Woodward v. Quigley, supra, was brought to resolve such a purely private right between the majority and dissenting stockholders. The corporation was not a party thereto and the action did not involve its business operations. The stock which petitioners owned in Telegraph-Herald was held by them for investment purposes and the extension of the life of the corporation was necessary to the management, conservation, or maintenance of such property. The majority stockholders recognized their obligation under the Iowa statute to purchase the stock of the dissenting stockholder.1 The majority stockholders were interested in minimizing the value of the stock whereas the dissenting stockholder was interested in a high valuation. Being unable to agree upon the “real value” of the stock in question, the primary, and, in fact, the only purpose óf the litigation was to obtain a court determination of the real value of the stock. Neither a money judgment nor the enforcement of a contract or statutory obligation was sought or determined. Title to the stock was never in question, and was only incidentally involved.2 Title remained in the dissenting stockholder until, on July 16, 1965, the majority stockholders purchased the shares of stock owned by the dissenting stockholder, Margaret M. Quigley. The amounts paid for such stock are not involved in this proceeding.
In my opinion the litigation expenses incurred and paid by petitioners in connection with the above-entitled action are deductible, under the provisions of section 212 of the Internal Eevenue Code of 1954, as ordinary and necessary expenses paid for the production of income, or for the management, conservation, or maintenance of property held for the production of income I would so hold.
The parties have cited three cases involving State statutes somewhat similar to the Iowa statute involved herein. Two of the oases cited by petitioners support the conclusion I have reached in this proceeding; one cited by respondent reached a different conclusion.
In Walter S. Heller, 2 T.C. 371, affd. 147 F. 2d 376 (C.A. 9, 1945), certiorari denied 325 U.S. 868, cited by petitioners, the issue was whether legal fees and expenses paid by a dissenting stockholder, in connection with litigation to determine the value and to enforce his rights to the cash value of his shares pursuant to a California statute providing that stockholders not consenting to a merger or consolidation were entitled to be paid such value, were deductible as expenses for the production or collection of income or in the management of property held for the production of income. This Court stated (p. 374) :
The attorneys’ fee paid by petitioner, while relating to a capital asset, bore a reasonable and proximate relation to the production or collection of income, and to the management of property held for that purpose. The litigation did not, as respondent urges, involve a defense by petitioner of his rights in, and his title to, the stock. The statute under which it was instituted presupposes that the “dissenting stockholders” own the shares which they are seeking to have appraised. The litigation concerned the exercise by petitioner of his right to receive cash for his shares and the determination of the amount thereof, he not having approved the contemplated merger or consolidation and having taken the other steps required by the statute. As a result of that litigation the fair market value of his stock was determined and paid to him in 1938. The attorneys’ fee in our judgment was paid for services rendered in connection with “the production or collection of income,” and in connection with “the management * * * of property held for the production of income.” Respondent therefore erred in disallowing the claimed deduction.
In Smith Hotel Enterprises, Inc. v. Nelson, 236 F. Supp. 303 (D. Wisc. 1964), also cited by the petitioners, the corporation agreed to sell substantially all its assets, and under a Wisconsin statute was required to purchase the stock of dissenting stockholders. It paid legal and other professional expenses in litigation to determine the fair value of the shares. The District Court held the deduction of such expenses was proper as an ordinary and necessary business expense, citing Heller. The Court disagreed with the contrary holding in Boulder Building Corporation v. United States, 125 F. Supp. 512 (W.D. Okla. 1954), stating (p. 305) :
Counsel for tlie plaintiff urges that the decision in Boulder is unsound in that it disregards the fact that the taxpayer’s obligation to purchase the dissenters’ stock was an involuntary obligation. Under the Oklahoma statute, as well as under the Wisconsin statute, once the dissenters have demanded 'that the corporation purchase their shares at fair value, the corporation has no choice in the matter. After the demand has-been made, the corporation’s main concern is with keeping its liability to a minimum. Plaintiff’s argument is sound. Viewed in this light it appears that the, primary purpose of the state litigation in the instant case was a determination of the fair value of the shares, and the involvement of title was incidental. The deduction made by the taxpayer was proper as an ordinary and necessary business expense.
In Boulder Building Corporation v. United States, supra, which, is strongly relied upon by respondent, a majority of the stockholders of an Oklahoma corporation, in accordance with the provisions of an Oklahoma statute, authorized the board of directors to extend the then-expiring corporate life of the company, to enlarge and amend its corporate powers, and to change its name. A minority of the stockholders demanded that the corporation purchase the minority stock at fair value as provided by the statute, and, when the two factions were unable to agree on the value of the stock, filed an action in the State district court to gain a judicial determination of the stock’s value. In connection with this litigation the company paid certain appraisers’ and attorneys’ fees, which the Commissioner disallowed as ordinary and necessary business expense deductions The U.S. District Court for the Western District of Oklahoma held that such expenditures “cannot be deemed an expense arising out of ordinary business operation but must be considered an expenditure directly related to the acquisition of capital stock.”
It does not appear that the District Court was aware of, or considered the opinion of this Court (affd. C.A. 9, 1945) in the case of Walter S. Heller, supra, which reached a different conclusion on substantially analogous facts. Moreover, in my opinion, the decision in Boulder Buildmg Corporation is not sound. Although stating that the “fundamental contest,” the “paramount issue,” the “sole question,” the “fundamental issue” in the State court litigation was to determine the fair value of the stock held by the minority stockholders, the Court stated: “It cannot reasonably be argued that title to the stock was involved only incidentally.” This conclusion, in my opinion, failed to give, effect to the primary purpose test and was unsound. In any event, I think the facts in the present case require a different conclusion and would so hold.
The first opinion, of the Supreme Court of Iowa stated (133 N.W. 2d 38, 40 (Iowa 1965)) :
“Plaintiffs recognize their obligation to purchase the stock under this statute, but the -parties have been unable to agree on the “real value” of defendant’s stock. This action was brought by the majority stockholders to secure a court determination of the “real value.” The trial court established a value of $1,750 per share and both parties have appealed.”
See also Robbins v. Beatty, 67 N.W. 2d 12 (Iowa 1954).
This is further emphasized by the fact that, although- the Iowa statute imposed an obligationi on the majority stockholders to purchase the stock of the dissenting stockholder, there is nothing in the statute or in the decisions of the Iowa courts, which would have prevented the dissenting stockholder, if she had not been satisfied with the value found by the court, from withdrawing her objection to the renewal and retaining her stock. Thus, a sale of the stock might not have taken place