*2201 Commissioner's refusal to include a certain amount in invested capital approved, where the evidence fails to show the actual cash value of tangible property paid in for stock, or the actual cash value of intangible property paid in for stock, or the par value of the total stock of the corporation outstanding on March 3, 1917, or the par value of the total stock outstanding at the beginning of the taxable year, and, therefore, the necessary computation under section 326(a) of the Revenue Act of 1918 can not be made.
*1011 The Commissioner determined a deficiency of $15,518.58 in the petitioner's income and profits taxes for the calendar year 1920. The only error alleged by the petitioner is the failure of the Commissioner to include any allowance in invested capital for the common stock of the par value of $400,000 issued upon incorporation in 1914 for certain plans, specifications, processes, data, leases, options to buy and lease land, and services rendered and to be rendered.
FINDINGS OF FACT.
The petitioner was incorporated under the laws of California in December, 1914. Its principal office*2202 is in San Francisco.
At a meeting of the board of directors on December 8, 1914, a letter from Captain F. K. Dedrick was read, in which he stated that for some years he had been making a study of the whaling industry along the Pacific Coast in connection with which he had collected *1012 considerable data in regard to the catching of whales, preparing them for market and marketing the product, the construction and equipment of modern whaling and fishing stations and the available locations for such stations. He also stated that he was in a position to negotiate options for and leases on the four most suitable sites on the California Coast for the establishment of such stations, these being at Trinidad in Humboldt County, Drakes Bay in Marin County, Monterey Bay in Monterey County, and Port San Luis in San Luis Obispo County, California, and, further, that he was in a position to obtain the rights to use a certain patented process to manufacture fertilizer from whales and to extract whale oil, and to charter two whaling vessels. The concluding paragraph of the letter was as follows:
I therefore offer to the California Sea Products Company to so place at its disposal and*2203 to transfer to it my reports, data, statistics, and everything I may have collected in regard to the whaling and fishing business and to assign to said company any interest I may now have or may hereafter acquire in whaling and fishing station sites, inventions and patented processes for the manufacture of fertilizer and extraction of oil from whales, or for cleaning fish and manufacturing whale products, and in the two whaling vessels mentioned herein; and I agree that I will do all further acts necessary to and of which I am capable in completing the negotiations enumerated herein, in consideration of Four Hundred Thousand (400,000) shares of the capital stock of said corporation being two-fifths of the said capital stock of said company.
This offer was then accepted by the board of directors. On December 9, 1914, 400,000 shares of the common capital stock of the California Sea Products Co., each share of the par value of $1, were issued to F. K. Dedrick, who on the same day signed an agreement which was in part as follows:
I hereby sell, assign and transfer to said California Sea Products Company, a corporation, all data, statistics, reports, blue prints, maps, and other compilations, *2204 and writings concerning the industry of whaling and fishing of which I am now possessed and I further sell, assign and transfer to said corporation any and all rights and interests which I may now have or may hereafter acquire in and to any whaling or fishing station site on the Pacific Coast and any option, agreement to buy or lease in said sites which I may hereafter acquire and especially in and to such sites at Drakes Bay, Trinidad, Monterey and Port San Luis, California, and all right and interest I may hereafter acquire in any patented process of extracting oil or manufacturing fertilizer from whales and any interest I may hereafter acquire in and to any patented process for cleaning fish or handling and treating whale products and any interest I may hereafter acquire in or any charter that I may acquire of the vessels known as the Moran and the Patterson; and I agree that I will continue with and complete to the best of my ability for said corporation and in its name all negotiations now begun by or pending between me and any other parties for the lease, purchase or acquisition of whaling and fishing station sites on the California Coast, patented processes for extracting whale*2205 oil and manufacturing fertilizer from whales and the chartering, purchasing of and acquiring of the said whaling vessels.
*1013 Both prior to 1914 and from 1914 up to and including 1917, Dedrick and his associates had tried in vain to sell stock in the petitioner or otherwise to get financial backing for the acquisition of the necessary equipment to enable the company to actually begin its whaling business. In the meantime, the capital stock of the company had been changed and in 1918 preferred stock in the company was sold with a bonus of common stock. The whaling station at Moss Landing was then begun. After this plant had been in oepration about one year and on March 31, 1920, the plant at Trinidad was begun. The other two locations heretofore mentioned were abandoned so far as the company was concerned.
Dedrick up to 1908 had been a seafaring man and part of the time was a sea captain. From 1908 to 1914 he was engaged in the shipchandlery and sail-making business in the State of Washington. He retired from this business in 1914, and from then on devoted all of his time to the affairs of the petitioner. From about the time of the organization of the petitioner*2206 to the present time, he has been a director, president, and manager of the company. He served without pay until about 1919. For three or four years prior to 1914 he had been spending some of his time and money studying the whaling possibilities of the Pacific Coast and assembling data thereon.
Through reports from his seafaring friends, he accumulated data as to where, when, and under what conditions they had seen whales. He communicated with whaling companies in Norway in regard to the equipment used by them. He acquired options on two whaling steamers, made plans and specifications for whaling stations and investigated possible sites for whaling stations at Trinidad, Drakes Bay, Port San Luis, and Monterey Bay at Moss Landing, all in California, and decided that these sites were the most suitable for the purpose on the Pacific Coast. In selecting a site he considered (1) whether or not whales were seen in the vicinity, (2) the availability of railroad facilities, and (3) the supply of fresh water. He also considered it important to find an uninhabited district so that the odors from the plant would not create a nuisance. He also wished to find stations sufficiently separated*2207 so as not to interfere one with the other.
In his sailing days he had noticed whales in the vicinity of Trinidad. There was a cove harbor there which would protect vessels from strong winds. It opened to the south and the southeast. There was also a railroad within a mile or so of the site. He examined the site in regard to title to the property and the boundaries owned by the company from which he contemplated leasing. At Moss Landing there was a wharf and within three miles there was a railroad.
*1014 Prior to the commencement of operations by the petitioner there were no whaling operations in progress on the Pacific Coast of the United States except in Alaska.
The Commissioner refused to include $400,000 in invested capital as having been paid in for $400,000 par value of the petitioner's capital stock. He determined the petitioner's profits tax by applying the provisions of section 328 of the Revenue Act of 1918.
OPINION.
MURDOCK: In section 326(a) of the Revenue Act of 1918 we find that invested capital means, so far as we are now concerned:
(2) Actual cash value of tangible property, other than cash, bona fide paid in for stock or shares, at the*2208 time of such payment * * *.
(4) Intangible property bona fide paid in for stock or shares prior to March 3, 1917, in an amount not exceeding (a) the actual cash value of such property at the time paid in, (b) the par value of the stock or shares issued therefor, or (c) in the aggregate 25 per centum of the par value of the total stock or shares of the corporation outstanding on March 3, 1917, whichever is lowest * * *.
Provided, That in no case shall the total amount included under paragraphs (4) and (5) exceed in the aggregate 25 per centum of the par value of the total stock or shares of the corporation outstanding at the beginning of the taxable year * * *.
The stock in question was issued for work done and to be done by Dedrick and property actually received from him. The value of the work done or to be done by him can not be included as such in invested capital, but only in case and to the extent that the value of the work done was represented in the value of some property transferred by him to the corporation for the stock, would that value serve to create or increase invested capital. Part of the property for which the stock was issued may have been "tangible property, *2209 " but some of the property was undoubtedly "intangible property" as those terms are defined in section 325 of the Revenue Act of 1918. This being so, we would have to know the total actual cash value of the tangible property paid in at the time of payment and also, but separately, the total actual cash value of the intangible property paid in at the time of payment. Then we would also have to know the par value of the total stock or shares of the corporation outstanding on March 3, 1917, and the same at the beginning of the taxable year. No attempt has been made to prove these facts and we are without any knowledge of them, neither do we know the actual cash value of the stock issued to Dedrick in exchange for the things he contributed to the corporation. We can not infer that his contribution was worth $400,000 in the aggregate. ; . Up *1015 to 1918 nothing seems to have been done by the company except to issue the stock to Dedrick and to try to sell other stock. There is evidence indicating that the stock was not saleable in 1914 and as the stock would reflect*2210 the value of the assets back of it, the value of the assets would seem to have been less than $400,000.
Where cases are before the Board under this section of the Act, the actual cash value of the assets paid in for stock or shares at the time of payment must be satisfactorily shown. . If the petitioner fails in this, the determination of the Commissioner will be approved. ; ; ; ; ; .
We can not compute from the evidence the proper amount of invested capital to which the petitioner is entitled on account of the transaction with Dedrick. The Commissioner apparently had the same difficulty and so used the special method of assessing the excess-profits tax provided in sections 327 and 328 of the Revenue Act of 1918.
Judgment will be entered for the respondent.