*3245 Taxable gain is not realized where, as part of an agreement of settlement between individuals, an obligation of a corporation of which the taxpayer was the principal stockholder is released to the corporation.
*463 This proceeding involves the redetermination of a deficiency in income tax for the year 1921 in the amount of $12,036.22. The only error alleged is that respondent determined that a certain agreed settlement between petitioner and one, Ames, resulted in taxable gain to petitioner in the amount of $75,000 instead of $25,000, as admitted.
FINDINGS OF FACT.
The Journal Publishing Co., hereafter called the Publishing Company, was the publisher of the Journal of Commerce of San Francisco. It had an authorized capital stock of 1,000 shares of the par value of $100 each. Of this amount it had outstanding capital stock in 1920 of approximately 600 shares, which were owned by petitioner, his wife and his daughter and by certain qualifying shareholders, which shares were in fact the property of petitioner.
During the year 1920 Knowlton*3246 L. Ames, a resident of Chicago, visited California and while there entered into an agreement with petitioner, who was at all times the president of the Publishing Company, whereby it was agreed that Ames was to invest sums of money not to exceed in all $50,000 in the Publishing Company, which was then losing money in its operation, and was to acquire therefor one-half of its capital stock. The stock to be issued was to be composed of 400 shares of unissued stock and the remainder was to be made up from the shares held by petitioner and his wife and daughter.
Shortly after this agreement was made and during the same year petitioner and Ames agreed to form a corporation which was to publish in Chicago, Ill., a paper similar to the San Francisco paper. *464 Ames was to finance the Chicago corporation and petitioner was to furnish his services and each was to have a one-half interest therein. This plan was carried out. While petitioner was in Chicago attending to these matters the Publishing Company was in need of money and from time to time its manager would notify petitioner by letter or telegram that a draft had been drawn upon him. The Publishing Company had no credit*3247 in Chicago and the credit of Ames was then about exhausted. These drafts were paid by money furnished by Ames. In order to enable Ames to raise the money thus advanced by him to the California paper, petitioner gave Ames his promissory 90-day notes in the amounts so advanced and took the notes of the Publishing Company for similar amounts. These latter notes were taken by petitioner for his protection. Petitioner's notes were endorsed and discounted by Ames and the proceeds turned over to petitioner, who in turn met the draft drawn by the Publishing Company. The various amounts advanced by Ames to the Publishing Company aggregated $50,000 and the covering notes of the Publishing Company held by petitioner amounted to the same sum. Prior to June 9, 1921, discord arose between Ames and petitioner and thereupon they agreed to refer their respective contentions to General Charles G. Dawes for arbitration. As a result of said arbitration, the assets of the Chicago corporation were appraised at $150,000 and the following agreement was entered into between Ames and petitioner:
This Agreement made and entered into this 9th day of June, A.D. 1921, by and between KNOWLTON L. AMES and*3248 ANDREW M. LAWRENCE, both of the City of Chicago, Illinois. WITNESSETH, That
WHEREAS, the said parties have hitherto had mutual interests, both in their personal and representative capacities, in the publication of the San Francisco Journal of Commerce, a newspaper published at San Francisco, California, by the Journal Publishing Company (a California corporation) and the Chicago Journal of Commerce, a newspaper published in the City of Chicago, by The Journal of Commerce Publishing Company (a Delaware corporation), which said mutual interests arose under the following circumstances and conditions:
1. Said Ames has hitherto advanced sums of money at divers times and in divers amounts, aggregating at this date the sum of Fifty Thousand Dollars ($50,000.00), to the said Lawrence for the use and purpose as stated by said Lawrence, of financing said San Francisco newspaper. Part of the consideration for said advances was an option on the part of said Ames to acquire one-half of the capital stock of said San Francisco newspaper on certain conditions and circumstances then contemplated as a possibility; they were further made upon the condition that part of said advances might, at*3249 Lawrence's option, be repaid by the said Lawrence in capital stock of Said San Francisco newspaper at its par value. All of said advances were evidenced by promissory notes signed by said Lawrence, as representing said paper, the said San Francisco newspaper at that time being without the necessary credit to warrant the same.
*465 2. Upon the organization of the Chicago newspaper, said Lawrence became its editor-in-chief under an agreement with said Ames and his associates for the payment to him of a salary and commissions or dividends contingent upon the profits thereof, and,
WHEREAS, it has now become necessary and desirable that said two newspapers shall be conducted hereafter upon such different plans, purposes and policies as to make the continuation of joint publication and editorship impossible, and in reference to said purposes and policies there has been an interchange of correspondence between said Ames and Lawrence, which it is now desired shall be restored to the respective writers thereof, and
WHEREAS, the notes mentioned in paragraph Number 1 of the first preamble hereof are uncollectible by reason of the defences which may be made to a suit or suits thereon,
*3250 NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants and undertakings of the said parties as hereinafter set forth, it is hereby agreed as follows:
1. Said Ames sells to the Journal Publishing Company (of California) for the actual consideration of One Dollar ($1.00) in hand paid, the receipt of which is hereby acknowledged, the promissory notes aggregating Fifty Thou sand Dollars ($50,000.00) hereinbefore mentioned, and assigns, transfers and delivers the same contemporaneously with the execution of this instrument, to the Journal Publishing Company (of California) and also releases said Lawrence and the Journal Publishing Company (of California) from the option on the part of said Ames to acquire any portion of the capital stock of said Journal Publishing Company.
2. The said Lawrence resigns from all relation with the Chicago newspaper, and hereby releases said Ames and The Journal of Commerce Publishing Company from any and all claims by way of salary or commission or in whatsoever other manner arising, both for past services and any future obligations, in consideration of the payment by said Ames of the sum of Twenty-five Thousand Dollars ($25,000.00), *3251 of which Five Thousand Dollars ($5,000.00) is to be paid in cash forthwith, and the deferred payments of the remaining Twenty Thousand Dollars ($20,000.00) are to be evidenced by two promissory notes for Ten Thousand Dollars ($10,000.00) each, the first one due on or before one year after date, and the second due on or before two years after date thereof, each bearing interest at the rate of six per cent (6%) per annum.
3. All letters written by either of said parties to the other, are to be returned forthwith to the writer thereof.
4. The said parties for the consideration herein contained do hereby mutually release each the other from all claims, demands and obligations of every kind and description, to the date hereof.
IN WITNESS WHEREOF, the parties hereunto have set their hands and seals at Chicago, Illinois, the day and year first above written.
The above agreement was performed in all particulars. Petitioner returned as income from the above transaction gain in the amount of $25,000.
In 1924 one Alexander purchased from petitioner and his family the whole of the outstanding capital stock of the Publishing Company. At the date of said purchase the $50,000 in*3252 notes of the Publishing *466 Company above referred to, held by petitioner and which had never been transferred by petitioner to a third party, were in the possession of said company.
OPINION.
MILLIKEN: It is clear that since petitioner contributed nothing to the Chicago corporation except his services, all he got out of that corporation was gain. It is conceded that he made taxable gain to the extent of $25,000, the amount of cash and notes received by him from Ames. The sole question is, Was he in receipt of $50,000 additional taxable gain by reason of the fact that Ames had paid through him to the Publishing Company the amount of $50,000, which was released by Ames to that company in the agreement of June 9, 1921.
The first agreement between Ames and petitioner was that Ames was to pay into the Publishing Company approximately $50,000, in return for which he was to receive one-half of the capital stock of that company. No part of this amount was to be paid to petitioner or to his wife or daughter. The whole of it was to go into the corporation. This being true, it is immaterial from a tax standpoint that petitioner was to make up the difference between the unissued*3253 stock and the number of shares sold.
Next, it is to be observed that Ames raised the money on which the drafts of the Publishing Company were paid. With respect to this phase of the transaction the parties have stipulated: "In order to enable Ames to raise the money thus advanced by him to the California paper, the taxpayer gave to Ames his promissory ninety-day notes in the amount of the sums so advanced and took notes of the company for similar amounts." In the light of this stipulation, it at once becomes apparent that the only part petitioner played in raising this money was to give Ames his accommodation notes for the purpose of having them discounted. When these notes were paid at maturity by Ames they became worthless, since neither Ames nor any purchaser of them after maturity could have enforced them. The transaction was precisely the same as though no such notes had been given and as though Ames had paid each draft with cash. These facts also remove from the picture the notes which petitioner took for his protection from the Publishing Company. Since Ames paid the drafts and since petitioner neither paid them nor was liable to Ames by reason of their payment, there*3254 was no consideration for petitioner's notes as between him and the Publishing Company. This was a good defense as between the parties to the notes, and since they never came into the hands of a purchaser for value and without notice, they too were worthless.
*467 Under the agreement of June 9, 1921, Ames delivered the notes upon which he had raised the money not to petitioner, but to the Publishing Company. This amounted to a release by him to the corporation of its obligation to him. This obligation was to issue him 50 per cent of its stock. That all this resulted in a benefit to petitioner is more than probably true, but benefits do not necessarily result in taxable gain. Cf. . The sole benefit petitioner received was that the corporation, of which he was the principal stockholder, had increased its assets by the amount of $50,000. This may have increased the value of his stock but increase in the value of stock is not taxable gain until the stock has been sold or transferred. Petitioner's stock constituted a capital investment and any increase in its value accrued to capital and was not during the year*3255 in question severed therefrom. See . Whatever may have been the benefit, if any, which petitioner may have received from the release to the corporation, we are clearly of the opinion that he did not during the taxable year in question realize from such release any taxable gain.
Judgment will be entered under Rule 50.