*1141 In 1937 petitioners received shares of preferred stock in a laundry corporation, issued as a stock dividend on common stock, subject to a prior oral agreement of all stockholders (1) that such preferred stock would not be disposed of; (2) that no dividends would be accrued or paid thereon; (3) that the preferred stock would be exchanged, share for share, for common stock as soon as the corporate charter could be amended authorizing the issuance of additional common stock; and (4) that to insure performance of the agreement, the certificates of preferred stock would be held by the company until exchanged for common stock. The agreement was fully performed and carried out within 11 days from its date. Held, testimony respecting the terms and extent of the stockholders' agreement is properly admissible; held, further, the shares of socalled preferred stock did not constitute taxable income to petitioners.
*300 This proceeding is for the redetermination of a deficiency in income tax for the year 1937 in the amount of $44,499.05. The issue is*1142 whether or not a distribution, made by a corporation in December 1937, of shares of preferred stock to the holders of its common stock, constituted income taxable to the recipients under the facts and circumstances set out hereinbelow.
FINDINGS OF FACT.
Petitioners are husband and wife, and reside in Baltimore, Maryland.
The Regal Laundry, Inc., hereinafter sometimes called the corporation or company, is a Maryland corporation organized in 1909. Its charter was amended in 1917 to increase its authorized capital stock from $50,000 of common stock to $200,000, divided into 10,000 shares of common stock of the par value of $10 per share and 10,000 shares of 7 percent cumulative preferred stock of the par value of $10 per share. Under the amended charter, only the common stock had voting rights, and the preferred stock was subject to redemption at any period after five years from date of issue, at the discretion of the board of directors. Upon dissolution of the corporation, the holders of the preferred stock were entitled to receive only the par value of *301 their shares, plus accrued dividends, and the holders of the common stock were entitled to receive pro rata*1143 the remaining assets of the corporation.
In 1935 all outstanding shares of preferred stock were redeemed. Thereafter and until December 31, 1937, the corporation had outstanding only common stock, in the amount of 2,893 shares.
At a special meeting held on December 31, 1937, the board of directors declared a stock dividend on the outstanding common stock of the company of 5,786 shares of common stock and 8,679 shares of preferred stock, so that each holder of the outstanding common stock would receive from such stock dividend two shares of common stock and three shares of preferred stock for each share of common stock then owned by him. On the same date, December 31, 1937, there were issued to the common stockholders the number of shares of each class of stock above mentioned. There were then outstanding a total of 8,679 shares each of common stock and preferred stock out of an authorized 10,000 shares of each class.
On December 31, 1937, petitioner Charles F. Mitchell received 7,884 shares of the preferred stock as a stock dividend, and petitioner Cora B. Mitchell received 105 shares of the preferred stock as a stock dividend.
Charles F. Mitchell is a director and president*1144 of the Regal Laundry, Inc., and at all times since organization of the corporation has owned personally or controlled through members of his family all of its capital stock.
The stock dividend above mentioned, in so far as it involves shares of preferred stock, was issued under the following circumstances and subject to the following verbal agreement of the stockholders: In 1937 an audit of the books of the corporation was completed about December 29 or 30, which disclosed a surplus of approximately $350,000, and the auditor recommended that approximately $300,000 of such surplus be capitalized in time to be reflected in the 1937 balance sheet. The directors approved the auditor's recommendation, but, for reasons immaterial here, did not desire to issue shares of preferred stock, and the unissued, authorized common capital stock was not sufficient to carry out the plan. The company had about $8,000 in cash and some $69,000 worth of corporate securities, and on December 30, 1937, a dividend of $46,279 was declared and paid out of such corporate securities, the balance thereof being held by a bank as collateral security for a loan.
The unissued authorized capital stock of the*1145 corporation at that time consisted of 7,107 shares of common and 10,000 of preferred, all *302 of the par value of $10 per share. In this situation the directors decided that the charter of the corporation should be amended to provide additional common stock which could be used to capitalize the surplus, but the amendment could not be completed before the close of the year 1937. Accordingly, the directors adopted a plan to declare a dividend of two shares of common stock and three shares of preferred stock on each share of common stock outstanding, provided the stockholders of the company would agree with it (1) to exchange the preferred stock, share for share, for common stock, as soon as the charter could be amended to provide for the necessary additional common stock; (2) that until such exchange could be made, no dividends would accrue or be paid on the preferred stock; (3) that the stockholders would not sell or otherwise dispose of the shares of preferred stock; and (4) that to insure performance of the agreement, the company would hold the shares of preferred stock until the exchange for common stock was effected.
All of the stockholders verbally entered into the*1146 agreement, and on December 31, 1937, pursuant to such agreement, the directors declared the stock dividend hereinabove referred to. On the same date the stock was issued, the certificates of common stock being delivered to the stockholders and the preferred stock being receipted for by the respective stockholders on the stubs of the certificate book but left with the treasurer of the company to hold in accordance with the terms of the agreement.
On January 7, 1938, the directors recommended to the stockholders of the company that its charter be amended to increase the authorized capital stock from $200,000 to $500,000, consisting of 50,000 shares of common stock of the par value of $10 per share, and no preferred stock. The stockholders approved the amendment, and on January 11, 1938, it was filed with and approved by the State Tax Commission of Maryland. Also on January 11, 1938, the company, pursuant to the agreement with the stockholders, issued 8,679 shares of common stock, which were exchanged, share for share, for the outstanding preferred stock, and the latter was then canceled.
On January 12, 1938, the board of directors declared a stock dividend of one share of common*1147 stock on each of the 17,358 shares of common stock then outstanding. As a result of the foregoing stock dividends, $318,230 of the corporation's surplus was capitalized.
OPINION.
HILL: The issue for decision in this case is whether or not the shares of so-called preferred stock received by petitioners in 1937 as a stock dividend on the common stock of the Regal Laundry, Inc., *303 under the facts and circumstances set out above, constituted taxable income. If so, the parties have stipulated that the deficiency determined by respondent is correct; otherwise, there is no deficiency due.
At the conclusion of the hearing, counsel for respondent moved to strike from the record "all oral evidence offered by petitioners which is contrary to the written records of the corporation", and "all evidence offered as to any agreement or transaction subsequent to December 31, 1937." The presiding member took the motion under advisement and stated it would be passed on in connection with the decision on the merits of the case as a whole.
On brief respondent argues in support of his motion that the minutes of the corporation set forth a clear and direct recital of the declaration*1148 of a dividend to the common stockholders, payable in both common and preferred stock; that the oral evidence objected to is not explanatory of the written minutes but in contradiction thereof, and should, therefore, not be admitted or considered because it is in violation of the parol evidence rule.
Whether the evidence in question contradicts the corporate records, as argued by respondent, or might properly be said to be only explanatory thereof, as contended by petitioners, we think is not of controlling importance here. In any event, there are other and more substantial grounds upon which we prefer to rest our decision.
The evidence relating to the terms and extent of the agreement whereby the stockholders limited or waived their rights in the so-called preferred stock, is clear and uncontradicted. The facts so established vitally affect the nature of the transaction and bear directly on the question of whether or not the preferred shares constituted taxable income to petitioners. Must we, however, exclude such evidence on the ground that it violates the parol evidence rule, and look only to the bare form of the transaction as recorded in the corporate minutes, without*1149 explanation? To do so obviously would result in a redetermination of tax liability on a basis utterly at variance with the true facts, and, if under such facts no tax is imposed by the statute, respondent would nevertheless be permitted to collect as a tax the amount of the deficiency determined by him. This may not be done. In circumstances such as are present here, we have repeatedly held that the parol evidence rule has no application. Macon, Dublin & Savannah Railroad Co.,40 B.T.A. 1266">40 B.T.A. 1266, and authorities there cited. See also Combs Lumber Co.,41 B.T.A. 339">41 B.T.A. 339, 342.
Respondent's motion to strike is overruled and exception noted.
The second point for consideration is whether or not under the oral agreement of the stockholders the shares of so-called preferred stock received by petitioners in 1937 constituted income taxable to them. *304 The stock dividend, payable in both common and preferred stock, was declared and paid pursuant to this agreement. Prior to declaration of the dividend, all of the stockholders had agreed (1) that they would exchange the preferred stock, share for share, for common stock as soon as the charter could*1150 be amended to permit issuance of additional common stock; (2) that until such exchange could be effected no dividends would be accrued or paid on the preferred shares; (3) that they would not sell or otherwise dispose of the preferred shares; and (4) that to insure performance of the agreement the preferred certificates would be held by the company. The agreement was fully carried out and performed within 11 days from its date, which also was the date of issuance of the preferred stock certificates.
From these facts, we think it is apparent that the stockholders did not at any time have dominion or control over the preferred stock. They did not at any time have the right to receive this stock for their own separate use, benefit, and disposal. In fact, the very purpose of the agreement was to deprive the stockholders of any rights of control, possession, or disposal. The preferred stock therefore did not constitute taxable income to the recipients, under the Sixteenth Amendment to the Constitution. Eisner v. Macomber,252 U.S. 189">252 U.S. 189.
There is an additional reason which also requires disapproval of the respondent's determination. It is now settled that no*1151 stock dividend is constitutionally taxable unless it (1) works a change in the corporate entity, or (2) gives the stockholder an interest different in character from that which his former holdings represented. United States v. Phellis,257 U.S. 156">257 U.S. 156; Weiss v. Stearn,265 U.S. 242">265 U.S. 242; Koshland v. Helvering,298 U.S. 441">298 U.S. 441; Helvering v. Gowran,302 U.S. 238">302 U.S. 238.
No suggestion appears in the present case that the stock dividend in controversy worked any change in the corporate entity, and we think it is clear that, under the agreement of the stockholders pursuant to which the dividend in preferred stock was declared and paid, they thereby acquired no interest in the corporation substantially different in character from that represented by their former holdings. In effect, the rights of the stockholders in the preferred stock were limited by agreement to the privilege of exchanging each share of such stock for one share of common stock, which latter stock, after the exchange, was held without limitation or restriction.
Decision will be entered for petitioners.