*1361 The amount paid to petitioner pursuant to its contract with an individual covering the loan of a principal sum and measured by a percentage of profits earned by the individual, held to constitute interest. Consequently, petitioner is a personal holding company, as defined by section 351(b)(1) of the Revenue Act of 1934, and is subject to the tax prescribed by section 351(a).
*217 This proceeding involves a deficiency of $5,250.70 in the petitioner's personal holding company surtax for its fiscal year ended November 30, 1936.
The basic issue is whether or not the petitioner was a personal holding company as defined by section 351(b)(1) of the Revenue Act of 1934. 1 The specific question is whether or not the income received by the petitioner during the taxable year was either interest or gain from the sale of stock or securities, as those terms are used in the statute.
*1362 *218 FINDINGS OF FACT.
The facts were stipulated and, in so far as they are material to the issue, may be summarized as follows:
The petitioner is a Delaware corporation, with a mailing address at 233 Broadway, New York, New York. It is the successor by merger to Wydelke, Inc., and is so designated in the notice of deficiency.
During the taxable year Norman P. deMauriac and Alice B. deMauriac, his wife, owned all of the stock of Wydelke, Inc., a Delaware corporation. Wydelke, Inc., owned all of the stock of the petitioner and also owned other nonincome-producing stock and a book account against deMauriac. Wydelke, Inc., was merged into the petitioner on or about June 26, 1937, and filed its income and excess profits tax returns and also a personal holding company return for the taxable year.
Wydelke, Inc.'s, only source of income during the taxable year was dividends aggregating $93,572 paid to it by the petitioner. The assets of the petitioner consisted of a claim of $500 against Alice B. deMauriac and a claim against deMauriac, amounting to $395,609.26 on November 30, 1936, arising out of a contract dated December 13, 1932, between him and the petitioner. *1363 That contract was extended from time to time and, as extended, was in effect during the taxable year.
The contract recited that deMauriac had been successful in conducting stock trading accounts but was without funds and that the petitioner desired to invest its funds "with safety as to principal and an opportunity for enhancement thereof." The parties thereupon agreed that the petitioner should lend $195,227.50 in cash to deMauriac and deMauriac acknowledged the receipt of that sum "as and for a loan", under the following terms:
1. DeMauriac promised to repay the loan on December 1, 1933.
2. DeMauriac agreed, in consideration of the making of the loan, to pay the petitioner on December 15, 1933, "an additional sum of money in lieu of interest, which additional sum shall be an amount equal to 80 per cent of the net profits of deMauriac in his stock trading business" for the period from December 13, 1932, to December 1, 1933.
*219 The petitioner was permitted to have full access to deMauriac's books and records but had no power or authority over his business. The relation between the petitioner and deMauriac was stated to be that of a creditor and debtor. DeMauriac*1364 was liable for the payment of only the principal and the petitioner was not liable for any loss "either by way of sharing the same or otherwise." Provisions were made to extend the agreement to cover any future loans and to continue the life of the agreement by mutual consent.
The only income received by the petitioner during the taxable year was $124,091.65, representing the contractual percentage (reduced to 66 2/3 percent by an amendment to the contract) paid to it by deMauriac. The dividends paid to Wydelke, Inc., by the petitioner were paid out of its income for the taxable year.
The "adjusted net income" of Wydelke, Inc., for the purpose of calculating its "undistributed adjusted net income", as contemplated by section 351 of the Revenue Act of 1934, was $93,217, dividends paid by the petitioner to Wydelke, Inc. During the taxable year, Wydelke, Inc., paid to its stockholders dividends aggregating $75,714.67. The respondent, in determining the instant deficiency, disallowed 20 percent of "adjusted net income", or $18,643.40, claimed by the petitioner as a credit in computing the "undistributed adjusted net income" of Wydelke, Inc., on the ground that the petitioner was*1365 a personal holding company.
OPINION.
VAN FOSSAN: The respondent has pitched his entire argument on the interpretation of the word "interest" as used in section 351(b)(1)(a). The petitioner contends that the sum received by it pursuant to the contract with deMauriac was not interest and did not represent "gains from the sale of stock or securities." If such payment is determined to be either interest or gains from the sale of stock or securities, the section automatically applies to the situation before us since the facts of the case bring it within the provisions of the other subsection (section 351(b)(1)(b)). It is to be noted that, while counsel for petitioner contends the payment was not interest or gains from the sale of stock or securities, he does not venture to suggest an alternative characterization or name.
It is axiomatic that the language used to describe a thing does not determine its character. The contract of December 13, 1932, denominated the amount to be paid to the petitioner as "an additional sum in lieu of interest." The word "lieu" means "place or stead." It does not imply that the character of the payment was different from interest but indicates that*1366 the method of computation was *220 not in accord with the usual method of computing interest, the percentage of profit being employed as a substitute. The contract itself must be examined to determine whether the sum so designated was actual interest or was something else.
Funk & Wagnalls New Standard Dictionary defines interest as "Payment for the use of money, or money so paid; an agreed or statutory compensation accruing to a creditor during the time that a loan or debt remains unpaid, reckoned usually as a yearly percentage of the sum owed."
In Old Colony Railroad Co. v. Commissioner,284 U.S.552, the Supreme Court stated:
And as respects "interest", the usual import of the term is the amount which one has contracted to pay for the use of borrowed money. He who pays and he who receives payment of the stipulated amount conceives that the whole is interest. * * * We cannot believe that Congress used the word having in mind any concept other than the usual, ordinarily, and everyday meaning of the term * * *.
In *1367 Elverson Corporation,40 B.T.A. 615">40 B.T.A. 615, we said:
* * * Interest, as generally understood, means simply the "compensation allowed by law, or fixed by the parties, for the use or forbearance of money, or as damages for its detention"; "the compensation which is paid by the borrower of money to the lender for its use"; "the price or rate of premium per unit of time, paid by the borrower of money to the lender for its use." 33 Corpus Juris 178; Joseph W. Bettendorf,3 B.T.A. 378">3 B.T.A. 378, 383; Bouvier's Law Dictionary; Webster's New International Dictionary; Anderson & Co.,6 B.T.A. 713">6 B.T.A. 713, 716. "The usual import of the term is the amount which one has contracted to pay for the use of borrowed money." Old Colony Railroad Co. v. Commissioner,284 U.S. 552">284 U.S. 552, 560. Congress apparently used the word in its usual and commonly accepted sense, DeGanay v. Lederer,250 U.S. 376">250 U.S. 376, and there is nothing in the legislative history to indicate that it was to be construed otherwise. *1368 Avery v. Commissioner,292 U.S. 210">292 U.S. 210. (See Report No. 704, Ways and Means Committee, 73d Cong.2d sess., p. 11, and Report No. 558, Senate Finance Committee, pp. 13, 16.) * * *.
See also Fall River Electric Light Co.,23 B.T.A. 168">23 B.T.A. 168, and cases there cited.
The contract called the amount delivered to deMauriac a loan and deMauriac acknowledged its receipt as such. DeMauriac promised to repay the loan on a definite date, December 1, 1933. He agreed to pay to the petitioner "in lieu of interest" a sum equal to 80 percent of the net profits of his business earned during the term of the loan The contract specifically designated the relationship between the petitioner and deMauriac as that of creditor and debtor and meticulously provided that only the principal amount should be repaid and and that the petitioner should share no losses of the business.
The record convinces us that the amount originally delivered to deMauriac and the amount subsequently advanced under the extended *221 agreement were loans of cash made by the petitioner to deMauriac. The amounts paid for the use of such borrowed money were interest thereon.
*1369 It is not essential that interest be computed at a stated rate, but only that a sum definitely ascertainable shall be paid for the use of borrowed money, pursuant to the agreement of the lender and borrower. Except for the usury laws of the several states, there is no limit set upon the amount of interest which may be paid under specific contract between the creditor and the debtor. 30 American Jurisprudence, §5, p. 9; Edgar B. Terrell,7 B.T.A. 773">7 B.T.A. 773; Barker v. Magruder,68 App.D.C. 211; 95 Fed.(2d) 122; Barker v. Receivers,88 Ct.Cls. 468; see United States v. Sullivan,274 U.S. 259">274 U.S. 259; and Jones Syndicate v. Commissioner, 23 Fed.(2d) 833.
The lender may forego interest if he chooses. He may agree not to charge interest or to reduce the amount of interest, provided certain events occur. That situation would exist here if deMauriac had made no profits. The possibility that no interest might be payable does not affect the character of the interest when actually paid.
Here the amount in controversy was paid for the use of the primary loan as augmented by additional*1370 loans made under the same contractual terms. Consequently, the petitioner derived at least 80 percent of its gross income from interest and is a personal holding company as defined in the statute.
In view of the above holding it is unnecessary to consider whether the amount received by petitioner represented "gains from the sale of stock or securities."
The action of the respondent, in denying the 20 percent credit in computing the petitioner's undistributed adjusted net income subject to surtax, is sustained.
Decision will be entered for the respondent.
Footnotes
1. SEC. 351. SURTAX ON PERSONAL HOLDING COMPANIES.
* * *
(b) DEFINITIONS. - As used in this title -
(1) The term "personal holding company" means any corporation * * * if - (a) at least 80 per centum of its gross income for the taxable year is derived from royalties, dividends, interest, annuities, and (except in the case of regular dealers in stock or securities) gains from the sale of stock or securities, and (b) at any time during the last half of the taxable year more than 50 per centum in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals. * * *
(2) The term "undistributed adjusted net income" means the adjusted net income minus the sum of:
(a) 20 per centum of the excess of the adjusted net income over the amount of dividends received from personal holding companies which are allowable as a deduction for the purposes of the tax imposed by section 13 or 204; [*] * *
(3) The term "adjusted net income" means the net income computed without the allowance of the dividend deduction otherwise allowable, * * *.
(4) The terms used in this section shall have the same meaning as when used in Title I. ↩