*279 Decision will be entered under Rule 50.
Petitioner, a Minnesota corporation engaged in the business of selling grain and seed on commission, for some time prior to 1944 had been indebted to a number of its shippers. This indebtedness represented the proceeds of sales handled by petitioner. The shippers left this money with petitioner, subject to their withdrawal at any time on demand. Petitioner paid interest on this money at the rate of 2 per cent per annum. On or about March 31, 1944, petitioner executed in the name of each shipper to whom it was indebted a promissory note in the amount owing as of March 31, 1944, payable on demand and bearing 2 per cent interest. Held, that as no valid delivery of the notes was effected by petitioner to the payees and the notes did not constitute "evidence" of the indebtedness, amounts owing by petitioner to its shippers did not qualify as "borrowed capital" within the meaning of section 719 (a)(1) of the Internal Revenue Code.
*183 This proceeding involves a deficiency in excess profits tax for the *280 year 1943 in the amount of $ 40,693.93.
Petitioner, by amended petition, has withdrawn its assignment of error relating to respondent's disallowance of additions of $ 10,000 and $ 30,000 to its reserve for doubtful accounts in the calendar years 1942 and 1943, respectively, and the resulting income tax deficiency of $ 9,053.53 determined by respondent for 1942. Petitioner has also abandoned in its amended petition its objection to the deficiency determined by the respondent in declared value excess profits tax for the year 1943 in the amount of $ 4,364.87.
The sole remaining issue herein is whether, for the purpose of computing petitioner's excess profits credit for 1944, money owing by the petitioner to shippers, in respect to which the petitioner in 1944 executed promissory notes, constituted outstanding indebtedness evidenced by notes and therefore "borrowed invested capital" within the meaning of section 719 (a) (1) of the Internal Revenue Code. Petitioner in its amended petition has abandoned its objection to respondent's exclusion of this indebtedness from its invested capital for the calendar year 1943. The amount of the petitioner's excess profits credit for 1944 affects*281 its excess profits tax liability for 1943 due to the unused excess profits credit "carry-back" provisions of section 710 (c) (3) (A) of the Internal Revenue Code.
FINDINGS OF FACT.
The Kellogg Commission Co., hereinafter referred to as the petitioner, is a Minnesota corporation, with its main office in Minneapolis, Minnesota. It maintains its books on the accrual basis, and its Federal income and excess profits tax returns were filed on an accrual and calendar year basis for the taxable years in question with the collector of internal revenue for the district of Minnesota.
Petitioner is engaged in the business of selling grain and seed on commission. In connection with this business, petitioner frequently loans large sums of money to its shippers for the purpose of financing purchases of grain. This indebtedness of the shippers is evidenced by debit balances on the petitioner's books. Since 1939 the financial condition of the shippers has been greatly improved and many of them have no longer found it necessary to borrow money from the petitioner.
The proceeds realized upon the sale of grain and seed for the shipper are not remitted to him by petitioner until demand is made for*282 payment. *184 Shippers prefer to leave their credit balances on deposit with the petitioner, as it pays the maximum interest rate of 2 per cent on all credit balances. This interest rate is fixed by the grain exchanges in Minneapolis and Duluth. Some part of the amounts owing to the shippers is used by petitioner in its business and, were these funds not available to it, petitioner would be forced to borrow from commercial banks.
The amounts owing to shippers are carried on the petitioner's books in a ledger account. Payments to or by the shippers are recorded in these ledger accounts and the balances due shippers appear on petitioner's balance sheets as accounts payable.
In March 1944 petitioner became aware of the fact that credit balances owing to shippers did not qualify as borrowed capital within the meaning of section 719 (a) (1) of the Internal Revenue Code because such balances were not, as required by the provisions of that section, evidenced by promissory notes or other written instruments of the character therein described. In 1944 petitioner executed a note payable to every shipper to whom a credit balance was owing as of March 31, 1944, in the amount of such*283 balance. These notes were made payable on demand at the petitioner's office in Minneapolis and bore interest at 2 per cent per annum. Each note carried the notation that it was "Collateral to Ledger Account."
Thereafter, on April 6, 1944, petitioner mailed to each shipper a letter which read as follows:
Your credit balance on our ledger is evidenced by this company's promissory note payable to you on demand, and bearing interest at 2% per annum.
It has been our custom to retain such notes in our files purely for convenience in adjusting the note from time to time to agree with changes in the amount of the ledger balance. If instead of our holding the note in our office you prefer to have us send it to you we will be glad to do so. In such case it will then be necessary to return the note and have it replaced by a new one for a revised amount as occasion may require.
There was but one exception to petitioner's notification of its shippers by letter as to the execution of the notes and their availability to the various payees. This was the Case Grain Co., which shared offices with the petitioner in Minneapolis and one of whose officers, Charles M. Case, is president of the petitioner. *284 The Case Co. was notified orally that a note had been executed in its favor and would be delivered if it so desired.
Petitioner was notified by the several shippers by letter or telephone that they were agreeable to its retention of the notes. Thereafter, petitioner retained all of the notes in its files at the Minneapolis office. *185 By retaining the notes petitioner was able to adjust and revise them from time to time in accord with the fluctuation of the credit balances and periodically to cancel the existing notes and issue substitutes.
At the end of every month thereafter a similar note was executed in the case of each shipper to whom a credit balance was owing for the first time, and a letter identical to those mailed on April 6, 1944, was dispatched to the shipper.
As the credit balances normally fluctuated in amount from time to time, it was necessary to make frequent adjustments to the notes. At the end of a month where a credit balance owing to a shipper had increased or where it had decreased in a substantial amount, the petitioner, in accordance with the understanding it had with its shippers, stamped "Paid" on the note previously executed by it and simultaneously*285 executed a new note in the amount of the new credit balance. Except as to amount, each new note was identical in terms with the original and succeeding notes previously executed. Both the original and the subsequent notes were retained by petitioner. No letter was mailed to a shipper at the time of execution of a new note. The practice of using notes has been continued by the petitioner without interruption from March 1944 until the date of the hearing.
Payments made by petitioner to its shippers were not endorsed on the notes and the exact amount owing to a shipper at any time could be ascertained only by reference to petitioner's books. No separate accounts for such notes were maintained by petitioner on its books, nor have they been listed as note obligations on petitioner's balance sheets or in reports made by petitioner. Petitioner's only purpose in issuing these notes was to qualify the credit balances owing to shippers as borrowed capital within the meaning of section 719 (a) (1) of the Internal Revenue Code.
The daily average of the indebtedness owing by petitioner to its shippers was $ 464,017.23. The daily average of the outstanding indebtedness was calculated by *286 taking, on each day of the year, either the amount of the indebtedness appearing upon the face of the notes or the amounts shown as owing on the ledger account, whichever was lower. This method was agreed to by the parties, subject to the respondent's right to verify the computation.
The Commissioner based the deficiencies in question upon his determination that the shippers' credit balances do not constitute borrowed invested capital as defined in section 719 (a) (1) of the Internal Revenue Code and section 35.719-1 of Regulations 112, and may not be taken into account in computing petitioner's excess profits credit based on invested capital.
*186 OPINION.
The sole question herein is whether, in computing petitioner's excess profits tax credit for 1944, the credit balances owing by petitioner to the shippers with whom it dealt and in respect to which petitioner issued promissory notes qualified as "borrowed capital" within the meaning of section 719 (a) (1) of the Internal Revenue Code. 1
*287 The corporate taxpayer's excess profits tax credit under the invested capital method is computed upon the basis of its daily invested capital, which consists of the sum of its daily equity invested capital as determined under section 718, and its daily borrowed invested capital as determined under section 719 of the Internal Revenue Code. Section 719 (b) provides that "The borrowed invested capital for any day of any taxable year shall be determined as of the beginning of such day and shall be an amount equal to 50 per centum of the borrowed capital for such day."
To qualify an indebtedness under section 719 as borrowed capital, two requirements must be met. First, the taxpayer must show an outstanding indebtedness; second, such outstanding indebtedness must be evidenced by one of the seven types of documents specified. Both requirements must be met. Canister Co. v. Commissioner, 164 Fed. (2d) 579; certiorari denied, 333 U.S. 874">333 U.S. 874.
As the credit balances in the instant case clearly represent bona fide indebtedness of the petitioner to its various shippers, the question is resolved to one involving the validity of the*288 notes and whether the notes in fact "evidenced" the indebtedness of petitioner to the shippers.
Respondent argues that the petitioner never accomplished a valid delivery of the notes in question to the payees and that for this reason the notes never became valid and outstanding obligations. Petitioner is doubtless correct in his contention that an actual manual transfer of a note from the maker to a payee is not indispensable. Cf. 7 Am. Jur. 809; Cartwright v. Coppersmith, 222 N. Car. 573; 24 S. E. (2d) 246. In Miller v. Hospelhorn, 4 Atl. 2d 728, 733, the Court of Appeals of Maryland set out the following rule regarding constructive delivery:
The final test is, did the endorser of the notes, at the time of their issuance, do such acts in reference to them as evidenced an unmistakable intention to pass title to them and thereby relinquish all power and control over them?
*187 The intent of the maker or endorser must be determined on all of the facts attendant upon the alleged delivery. Upon the record in the instant case, we are convinced that petitioner never intended that the*289 notes issued in respect to the credit balances should be delivered to the shippers and that thereafter it should be completely divorced from all control and dominion over them.
The indebtedness herein represented the proceeds of sales of grain and seed handled by the petitioner for its shippers. Petitioner retained this money until demand for payment was made, and under the rules of the grain exchanges it paid the maximum permissible rate of interest on all money left with it. This money was subject to withdrawal at any time in much the same manner as money left on deposit in a bank. The amounts owing by the petitioner to its shippers fluctuated constantly due to the fact that the shippers regularly withdrew money left with the petitioner and the petitioner from time to time handled additional sales of grain for the shippers and credited the proceeds of such sales to their accounts. It is obvious that the actual delivery of the notes without any restriction upon their negotiability and without any means of rapidly recalling them for cancellation would have had a serious effect upon the petitioner's business. Initially, petitioner rendered the notes nonnegotiable by striking the*290 words "the order of" from the face of the notes. Thereafter, it dispatched a letter notifying each of its shippers of the execution of the notes and the difficulties which could be anticipated if a manual delivery of the note was desired.
The parties thereafter, for all practical purposes, ignored the notes and continued to regard the credit balances as shown on the petitioner's books as the real evidence of the indebtedness. It is conceded that at any particular time one would have had to resort to petitioner's books to determine the exact amount of the indebtedness owing to each of the shippers. The notes served no real business purpose, but were admittedly issued solely for the purpose of securing a tax advantage.
That neither petitioner nor the shippers regarded the notes in question as true outstanding obligations is indicated by the fact that the original notes were canceled and substitutes issued solely upon the petitioner's initiative and without any notice to the payees. Payments on the indebtedness were not recorded on the notes, but were reflected only on the petitioner's regular books of account. No separate accounts for the notes were maintained by petitioner on *291 its books, nor were they ever listed as note obligations on petitioner's balance sheets or in public reports made by it. It appears that the practice of issuing *188 notes in respect to the credit balances could have been discontinued by the petitioner as easily as it had been adopted.
In the light of these facts, it is clear the petitioner had no intention of relinquishing control and dominion over the notes. Petitioner took no chance that these notes would find their way into regular commercial channels. As such instruments were completely incompatible with petitioner's business operations, sufficient control over them was retained by it to forestall the confusion that would have resulted from actual manual delivery to each payee. This control negatives any claim of its having effected a valid constructive delivery.
These same facts lead us to the conclusion that the indebtedness petitioner seeks to qualify as "borrowed capital" was not in fact "evidenced" by the notes in question. The fluctuation in the credit balances obviously resulted in a constant discrepancy between the amount shown as owing by the notes and that indicated on the petitioner's ledger account. During*292 the course of business, the credit balances varied from day to day and no effort was made to correct the notes until major changes took place and the petitioner considered a new note desirable. Payments made by petitioner were recorded on the ledger account and not credited on the notes. These considerations, in addition to the other facts which we have already recited herein, point to the fact that the indebtedness owing by petitioner to its shippers was in reality "evidenced" by the open account on its books and not by the notes in question.
Therefore, we are of the opinion that the indebtedness owing by petitioner to each of its shippers was not "borrowed capital" within the meaning of section 719 (a) (1) of the Internal Revenue Code. The respondent's determination in this respect must be sustained.
Decision will be entered under Rule 50.
Footnotes
1. SEC. 719. BORROWED INVESTED CAPITAL.
(a) Borrowed Capital. -- The borrowed capital for any day of any taxable year shall be determined as of the beginning of such day and shall be the sum of the following:
(1) The amount of the outstanding indebtedness (not including interest) of the taxpayer which is evidenced by a bond, note, bill of exchange, debenture, certificate of indebtedness, mortgage, or deed of trust, plus,
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