1932 BTA LEXIS 1298">*1298 Action of respondent in holding that a payment made by a corporation to its stockholder in the tax year was taxable income to him, sustained.
26 B.T.A. 494">*494 This appeal seeks a redetermination of a deficiency of $31,182.94 in income taxes which the respondent has asserted against the petitioner for the year 1923. The only issue involved is whether or not 26 B.T.A. 494">*495 the respondent erred in holding that a certain payment of $100,000 made to the petitioner in that year was a dividend out of corporate earnings.
FINDINGS OF FACT.
The petitioner is an individual residing at Los Angeles, California. Prior to January 3, 1922, he was equal owner with W. A. Faris in a partnership engaged in operation of a department store in the city of Los Angeles under the firm name of "Faris-Walker Fifth Street Store." On December 30, 1921, these partners organized the Faris-Walker Corporation under the laws of the State of California, to which they later conveyed, effective as of January 3, 1922, all of the partnership assets, including good1932 BTA LEXIS 1298">*1299 will and the exclusive right to use the firm name. In exchange for such assets the corporation agreed to assume all partnership debts and to issue, and did issue to each partner 10,000 shares of its capital stock in full payment therefor. The authorized capital of the corporation was fixed in its charter at 25,000 shares of a par value of $100 each. At the time of its organization each of the partners subscribed and paid, in cash, for four shares of the corporation's capital stock and in the taxable years each owned 10,002 of such shares, constituting the entire issue outstanding. On August 13, 1923, the corporation procured from the State Commission of Corporations a permit authorizing it to "divide, withdraw and pay to its stockholders" a part of its capital assets, to wit, the sum of $200,000 in cash, in ratable proportions as governed by their holdings of its capital stock on said date. Pursuant to such authority it paid to the petitioner and his coowner of the corporation stock, each, during the taxable year, the sum of $100,000. No part of the capital stock outstanding at the date of such payment was retired or canceled. The petitioner made no report of the receipt of1932 BTA LEXIS 1298">*1300 the sum received by him from such distribution in his income-tax return for the year 1923. In auditing that return the respondent added the amount of such distribution to petitioner's gross income for the year received and determined the deficiency here in controversy.
OPINION.
LANSDON: The petitioner has introduced much evidence to show that at all times here material the corporation had a paid-in surplus greater than the distribution here questioned; and contends that in view of the authority granted to it by the Commissioner of Corporations of the State of California to disburse such surplus, and the action of its board of directors directing the same, it must be presumed that the payment to him was made therefrom and not from earnings accrued after the date of incorporation. In our opinion the taxability of the distribution in question is determined by the plain 26 B.T.A. 494">*496 letter of the law. Under the provisions of the Revenue Act of 1921, which is applicable here, corporate dividends are defined as follows:
SEC. 201. (2) That the term "dividend" when used in this title * * * means (1) any distribution made by the corporation to its shareholders or members, whether1932 BTA LEXIS 1298">*1301 in cash or other property, out of its earnings or profits accumulated since February 28, 1913 * * *.
Respecting distribution made by corporations, the same act provides:
SEC. 201. (b) For the purpose of this Act every distribution is made out of earnings or profits, and from the most recently accumulated earnings or profits to the extent of such earnings or profits accumulated since February 28, 1913 * * *. [Italics supplied.]
It would seem clear from the above quoted provision of the revenue act that Congress intended to tax any distribution made by a corporation to its stockholders, though in terms from paid-in capital or surplus, to the extent that payment thereof is made from accumulated earnings retained in the treasury as earned surplus. . The respondent held that the $100,000 payment to the petitioner in 1923 was made out of accumulated corporation earnings. To show error in such determination it is necessary for the petitioner to prove, not that it had paid-in surplus in an amount equal to the distribution, but that it had no earnings out of which that sum or any part of it could have been1932 BTA LEXIS 1298">*1302 paid. This he has failed to do, and, since that negative showing is an essential element to establish error on the part of the respondent, we must hold against the contention of the petitioner in this appeal. ; .
Decision will be entered for the respondent.