*1144 Where a corporation purchases the capital stock of another, the cost basis of assets of the second company remains unchanged, even though the second company is reorganized and the purchasing corporation transfers its assets to the second company and dissolves.
*12 This proceeding involves the redetermination of deficiencies in income tax for 1926 of $1,701.60, for 1927 of $1,333.75 and for the fiscal year ended January 31, 1929, of $1,146.90. The issue is whether petitioner is entitled to an annual deduction on account of exhaustion *13 of leaseholds and, if so, in what amount. We are asked also to determine the amount of such deduction applicable to the taxable period consisting of the month of January, 1928, and to increase accordingly the net loss sustained in that period.
FINDINGS OF FACT.
N. W. Pugh Company, Inc., hereinafter called "old Pugh company," was organized under the laws of Virginia in 1921 and until its dissolution was engaged in the department store business in Roanoke. It operated a so-called popular priced store - all*1145 sales cash, no charge accounts, cut price sales and quick turnover. The Hancock Dry Goods Company was organized under the laws of Virginia in 1915 and thereafter was engaged in the department store business in Roanoke. Its store was located in the same block as that of the old Pugh company, but was a so-called exclusive store, catering to a high grade trade, largely on charge accounts. Because of the difference in their methods of operation and the types of trade attracted, the concerns were not substantially competitors. The Hancock store occupied a building twice the size of that occupied by the Pugh store, under leases which it had acquired without cost, so far as disclosed by this record.
During 1925 it became apparent that the old Pugh company needed more room for its business. Negotiations for a suitable building two doors away failed because the parties could not meet on the price. The only other suitable building in the block was that occupied by the Hancock company. Several times during the year representatives of the old Pugh company approached Hancock, attempting to secure possession of the premises by purchase of the leases. Early in January, 1926, the old Pugh*1146 company renewed its inquiry through a real estate agent named Franklin, who reported with an offer for the sale of the assets of the Hancock business at a price based upon present inventory, either with or without notes and accounts receivable. This offer was accepted on January 9, 1926, upon completion of the inventory of the Hancock store merchandise, the notes and accounts receivable being retained by Hancock, the accounts payable being assumed by the old Pugh company. The excess of the purchase price over the market value of the tangible assets of the Hancock company was $49,740.93. This was set up on the books as a leasehold value. The market value of the leases held by the Hancock company, at that time having unexpired terms of 54 months, was $50,000. The good will of the Hancock company was not purchased.
*14 Immediately upon reaching an agreement with the Hancock company the representatives of the old Pugh company took possession of the Hancock store and merchandise. The Hancock store was closed for a time while the Pugh employees and department managers came in to price and arrange stock for a sale which was advertised and held within a fortnight. Various*1147 items of merchandise stock were transferred from one store to the other and intermingled. The president of the old Pugh company moved his office to the Hancock building, and from there directed the business of both stores. Within a few days after January 9 the leases under which the Hancock building was held were examined and it was discovered that one of them contained a clause against transfer. While public announcement had been made of the purchase of the Hancock business and the fact that the old Pugh company was in possession, no complaint was made by the lessor. However, it was deemed advisable to avoid any possible difficulty on that score and, for that reason, the written contract covering the transaction, which was drawn up by Franklin and dated January 11, 1926, treated the purchase as one of capital stock of the Hancock company. The minutes of the old Pugh company show that at a meeting on January 12, 1926, the directors agreed to purchase the capital stock of the Hancock company, and the same fact is recited in a supplemental agreement between the parties under date of January 19, 1926, which assigns to certain individuals the accounts receivable of the Hancock company. *1148 To carry out this procedure the old Pugh company transferred all its assets to the Hancock company and was dissolved on February 19, 1926. At the same time the authorized capital of the Hancock company was increased and its name changed to N. W. Pugh Company, Inc., hereinafter called the new Pugh company. It is the petitioner here. Thereafter it issued its stock to the former stockholders of the old Pugh company, share for share with their former holdings.
The Hancock interests thereafter organized a new corporation under their old name, opened a new store and engaged in business as before. The new Pugh company obtained renewals of its leases at advanced rentals, with one exception, the J. D. Kirk lease, which was extended.
Upon its returns for the taxable periods before us petitioner deducted various amounts on account of exhaustion of its leaseholds. Respondent has disallowed these claimed deductions and that action gives rise to the deficiencies herein contested.
OPINION.
GOODRICH: Petitioner's claim is bottomed upon section 234(a)(7) of the Revenue Act of 1926, and section 23(k) of the Revenue Act *15 of 1928, which permit as a deduction from gross income*1149 "a reasonable allowance for the exhaustion * * * of property used in * * * business." It is not denied that the leases were used in business or that they were subject to exhaustion. The question here is whether there is a basis for exhaustion of these leases under section 204(a) of the Revenue Act of 1926, which provides that such basis, for property acquired subsequent to March 1, 1913, shall be its cost. Petitioner contends that the cost of these leases, and therefore the basis for computing the deduction for their exhaustion over their remaining term of 54 months, is $49,740.93. Respondent contends that the leases have no cost basis, for the reason that they were acquired in the first instance by the Hancock company without cost, that they remained the property of that company, unaffected by the purchase of its capital stock, and that the transaction gave rise to no new basis whereby a revaluation of the company's assets was permissible for the purpose of computing exhaustion allowance for existing leases. In short, he contends that the intervening events were of no consequence.
We agree with respondent. It is apparent that petitioner desired and intended to purchase the*1150 leases, and that it agreed to purchase all of the assets of the Hancock company, except those specifically excepted, in order to accomplish its purpose. But it was discovered that one of the leases could not be transferred and that fact prevented consummation of the sale of assets. Possibly the consent of the lessor to a modification of the lease which would permit of its transfer might have been obtained, but it was not. Apparently, neither of the parties was aware of the restriction in the lease when the agreement for purchase and sale of the assets was made and, because of that mutual mistake respecting the possibility of making valid delivery of the assets, the first agreement was rescinded and a new contract made covering the purchase and sale of the capital stock of the Hancock company. That second agreement was carried out and the transaction before us is plainly a purchase by the old Pugh company of all the capital stock of the Hancock company, which gives rise to no new basis for the leaseholds owned by the latter corporation.
It appears also that, immediately upon obtaining the first agreement, the old Pugh company took possession of the merchandise of the Hancock*1151 company, and of the store premises, and dealt with them as if they were its own. These activities continued after the transaction was changed to one of purchase and sale of capital stock and included the disposal of part of the Hancock merchandise upon sale and intermingling it with the stock of the Pugh company. This, petitioner contends, constituted a liquidation of the Hancock *16 company to its sole stockholder, thus establishing as the cost basis for the assets received the cost of the capital stock. That argument must fall because the restriction which prevented the consummation of the first agreement, namely, the nontransferability of the lease, likewise prevented a complete distribution of the assets of the Hancock company.
Finally, petitioner urges that the recapitalization and change of name of the Hancock company effected a reorganization; that the transfer of its assets and the dissolution of the old Pugh company effected a merger; and that, as a consequence, a new basis was established for the assets in the hands of the new Pugh company, this petitioner. In other words, it contends that the sum paid for the capital stock in excess of the book value of the*1152 Hancock assets was paid for the leases, and in the merger carried over as the cost basis of the leases. Assuming that a reorganization and merger were accomplished, it does not follow that the basis for the leases was thereby changed. Ownership of the leases did not change, it remained in the Hancock company and was unaffected when, by change of name and recapitalization, that company was reorganized to become this petitioner. The assets of the old Pugh company, on the other hand, were brought into petitioner in the merger, presumably in consideration of the exchange of petitioner's stock for the stock of the old Pugh company. Doubtless, these additional assets increased the value of petitioner's stock, but the stockholders are not before us. There was no additional cost to petitioner of the assets, including the leases, which it theretofore owned, whether under the old name or the new, nor was their value increased, and, as we are not concerned with the cost or value of the assets of the old Pugh company, we see no reason upon which to bottom a finding that the merger effected a change in basis of the Hancock leases or other assets.
Judgment will be entered for the respondent.*1153