*1033OPINION.
James :The taxpayer alleges as errors of the Commissioner upon which he predicates his appeal the following:
1. Failure of the Commissioner to allow as invested capital the amounts of $25,027.15, increased value of tangible assets, and the difference between $78,957.33 and $119,000 as the value of intangible assets.
2. An erroneous duplication of $14,000 on account of a dividend paid in January, 1919, from a reserve for dividends alleged by the taxpayer to have been deducted from surplus as of the close of the preceding year.
3. Failure of the Commissioner to compute the tax under the provisions of section 328 of the Revenue Act of 1918.
As an affirmative defense, the Commissioner claims that the taxpayer is subject to the provisions of section 331 of the Revenue Act of 1918, and that not only should the alleged additions to invested capital be disallowed in the proper computation of the tax, but.that there should be deducted in addition the sum already allowed of $78,957.33.
As the Commissioner’s defense, if successful, disposes of the entire case of the taxpayer upon the questions of invested capital, this defense will first be considered.
Section 331 of the Revenue Act of 1918, so far as material, provides as follows:
In the case of the reorganization, consolidation, or change of ownership of a trade or business, or change of ownership of property, after March 3, 1917, if an interest or control in such trade or business or property of 50 per centum or more remains in the same persons, or any of them, then no asset transferred or received from the previous owner shall, for the purpose of determining invested capital, be allowed a greater value than would have been allowed under this title in computing the invested capital of such previous owner if such asset had not been so transferred or received: * * *
We are to inquire whether, under the facts stated, “ an interest or control ” in the business or property of the taxpayer remained, after *1034its incorporation and the transfer of its property from the predecessor company, in its former stockholders, Insley, Wagner, P±eiffer, and Rasmussen.
`l'he tacts, so tar as they are betore the i3oarct, are gathered entirely from the contract between Dollings and the above-named parties and the articles of incorporation and by-laws of the taxpayer. It does not appear whether these agreements were in all respects carried out. For the purpose of this determination, it will be assumed that they were. -
It appears that, at the organization or the taxpayer corporation, the property of the predecessor corporation was transferred to the taxpayer in consideration of $250,000 common stock and $165,000 preferred stock. It further appears that the common stock was all issued to Insley and his associates in the first instance, and that the preferred stock was likewise so issued.
(in the basis ot the hrst torma! step taken in the organization ot the taxpayer, it is clear that 100 per cent interest and control both resided at the instant of the incorporation of the taxpayer, and the transfer to it of the property in question, in Insley and his associates.
We might place our decision entir~ly on the ground that section 331 does not provide for any period of time during which the interest or control mentioned in that section shall remain in the parties from or through whom the property of the taxpayer is acquired. Whether the statute is susceptible of such a narrow construction, we do not now decide.
It is apparent, however, under the Dollings contract, that much more than a mere reincorporation was involved in this case. The taxpayer was desirous of securing additional capital in the business. It secured the additional capital from Dollings, and Dollings, as an investment banker, imposed terms adequate and necessary to the safeguarding of the additional capital so advanced. Dollings also imposed a price for the service so rendered, namely, $50,000 par value of the common stock of the taxpayer.
Immediately upon the organization of the taxpayer, we find, therefore, that its stock is owned by four individuals who are themselves under obligation to deliver to Dollings $50,000 out of the $250,000 common stock. The contract with respect to the preferred stock differs somewhat from the treatment of that stock upon the books of the company, and we have, therefore, made no definite finding of fact with reference thereto. It is provided in subpara-graph four of paragraph third of the Dollings contract as follows:
Said preferred stock consideration, or the cash proceeds thereof, shall be distributed and paid to vendors as the owners of all of the issued and outstanding capital stock of the Company, equally and pro rata according to their respective shares. The outstanding capital stock of the Company amounts to $^8,600.00, divided into shares of par value of $100.00 each, and is presently owned and held as follows: W. H. Insley 600 shares; O. S. Wagner 150 shares; F. L. Pfeiffer 66 shares; and A. C. Rasmussen 40 shares. So that said preferred stock, when issued, will be owned by Vendors in the following proportions, to-wit: W. I-I. Insley £$$ parts; C. S. Wagner Mr parts: F. L. Pfeiffer MV parts; and A. C. Rasmussen -¿M parts. And the cash proceeds of said ](referred stock shall belong to vendors in like proportions.
It is further provided in the first subparagraph of paragraph fourth as follows:
*1035Party of the second part agrees to dispose of all of said $165,000.00 of preferred stock so to be issued to vendors by said new corporation to produce for them net the sum of $132,000.00 in cash, and also all of the unissued preferred stock of the said new corporation, amounting to $335,000.00 par value, or so much thereof as may be needed by said new corporation for its corporate purposes, and to net said new corporation at the rate of $80.00 for each $100.00 share.
It appears from the opening balance sheet of the taxpayer, submitted in evidence, that the entire preferred stock of $165,000 above mentioned was issued and entered on the liability side. On the assets side, however, the difference between the amount of cash to be received by Insley and his associates and the par value ($165,000) of the stock issued, namely, $33,000, appears to have been entered as “ organization expense.”
Thus the second step discloses the taxpayer in the position of being owned as to 80 per cent of the common stock by Insley and his associates, and as to all of the preferred stock by the same group, subject to an agreement on the part, of Dollings to sell their preferred stock.
Thereafter, the preferred stock was delivered to a trustee for sale, and apparently it was sold and the proceeds of sale delivered to Insley and his associates. It further appears that some portion, at least, of the remaining preferred stock was sold from time to time, since the balance sheet of the taxpayer as of December 31, 1920, shows preferred stock outstanding in the sum of $268,000.
It is apparent from the foregoing that “the interest” in the “ trade or business or property ” of the taxpayer remained in Insley and his associates to the extent of 50 per cent or more after the reorganization. They owned all of the common stock, and, subject to an agreement on the part of Dollings to sell, they owned all of the preferred stock.
Inasmuch as the above section 331 is clearly to be construed in the disjunctive, it is unnecessary to discuss in detail whether Insley and his associates remained in control of the property or business subsequent to the reorganization. Suffice it to say that we believe they did, and that the restrictions on management contained in the Dolí-ings contract and in the articles of incorporation and by-laws of the taxpayer were nothing more than, as stated in the Dollings contract, “the usual protective, regulatory and supervisory provisions required by party of the second part (Dollings) in its financing.” The restrictions upon the corporate management were only such as prudent investment bankers impose in connection with the financing or refinancing of corporations, and were no more stringent than those usual in connection with bond issues. The preferred stock, so called, provided in the taxpayer company, has many of the characteristics, including provisions for retirement, which ordinarily accompany debenture bonds. The preferred stock was without voting power, except in default of payment of dividends or violation of the terms of the Dollings agreement or the articles of incorporation or by-laws of the corporation. If Insley and his associates acted with ordinary prudence, foresight and honesty, they would remain, and, for all the records show, did remain in as complete control of the taxpayer as they were in control of the predecessor business. The restriction upon their own salaries, whereby they were limited *1036to $12,000 for Insley, $5,600 for Wagner, $3,300 for Pfeiffer, and $3,000 for Rasmussen, except by agreement with Dollings’s representative, does not 'appear as such a serious restriction of their control when reference is made to the fact that the salaries of the four for the years 1916 to 1920, inclusive, were as follows:
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The second point is that the Commissioner erred by a double deduction of $14,000 on account of a dividend paid in January, 1919, out of a reserve for dividends set up at the close of the preceding year.
The revenue agent’s report upon this point is not as clear as is ordinarily the case. The revenue agent submits a reconciliation of surplus, from which he apparently made his adjustments with respect to invested capital. From the reconciliation of surplus, it would appear that the cash dividend on account of preferred stock is set up as of January 1, and not as of December 31, and his computation of invested capital does not show upon its face more than one adjustment on account of the item of $14,000 above mentioned. The taxpayer, having relied entirely upon what he alleged to be a clear error upon the face of the • revenue agent’s report, and not having introduced any proof with reference thereto, we are unable to determine that the alleged error occurred, nor that any adjustment on account thereof should be made.
On the third point, namely, relief under the provisions of section 328, we have recently decided in the Appeal of Morris & Co., Inc., 1 B. T. A. 104, that the mere fact that the taxpayer is subject to the restrictive provisions of section 331 does not warrant the Board in finding such an abnormality as to require the assessment under the provisions of section 328. The record here before us is silent as to any other possible conditions of abnormality. The taxpayer simply alleges that the Commissioner has at some time computed its tax under section 328, but has failed to give it the benefit of that computation in the deficiency letter from which the appeal is taken to this Board. We decided in the Appeal of Ohabners Publishing Co., 1 B. T. A. 629, that a taxpayer may not claim before this Board the benefits of section 328 upon the bare ground that at some time or other the Commissioner has made computations giving it that benefit if the computation under section 328 is omitted in the determination of the deficiency from which it appeals. It follows from the foregoing that the Commissioner’s determination must be affirmed with reference to all the points of error alleged by the taxpayer, and that, in addition, the invested capital of the taxpayer must be decreased by the sum of $78,957.33, and the tax re-computed accordingly under the provisions of section 301 of the Revenue Act of 1918.