1929 BTA LEXIS 2488">*2488 Notes of solvent persons, worth their face amount, received in payment for an equal amount in par value of the capital stock of a Louisiana corporation, should be included at their face value in computing the invested capital of such corporation.
16 B.T.A. 938">*938 The Commissioner determined deficiencies in income and profits tax of $910.33 for 1920 and $2.69 for 1921.
It is claimed that the Commissioner erred in refusing to include in invested capital interest-bearing notes of the face value of $6,000, paid for capital stock.
The facts are stipulated.
FINDINGS OF FACT.
Petitioner is a Louisiana corporation, engaged in the naval stores business, with its principle office at New Orleans. It was incorporated on September 21, 1917, with a capital stock of $100,000. At that time its president, A. B. Marston, and its vice president, W. H. Favorite, each subscribed and paid for a portion of its capital stock and paid for part of same by executing and delivering to petitioner on October 2, 1917, their separate promissory notes each for the sum of1929 BTA LEXIS 2488">*2489 $3,000, due one year thereafter, bearing interest at the rate of 6 per cent per annum. Capital stock in the amount of $3,000 was issued to each of them and attached to their respective notes as collateral. Each of the makers of said notes was and has been at all times financially able to pay said notes, and has received any and all dividends declared and paid by petitioner on its capital stock owned by each of them including the stock purchased with said notes. Each of the notes remained outstanding and unpaid to and after their maturity date and during the calendar years 1920 and 1921, and were always listed by petitioner among its assets in its financial statements to banks; petitioner is now in liquidation through reorganization, and payment of said notes, which are outstanding and unpaid, and interest, is being required for issue of new stock in lieu of stock issued by petitioner for said notes.
Petitioner received from the Commissioner a deficiency letter proposing an additional tax of $910.33 for the calendar year 1920 and $2.69 for the calendar year 1921, and disallowing $6,000 as invested 16 B.T.A. 938">*939 capital for each of said years, being the payment for its capital stock, 1929 BTA LEXIS 2488">*2490 evidenced by certain notes hereinafter described.
OPINION.
LITTLETON: The facts establish that the notes here in question were the equivalent of cash when they were paid in for stock. The Commissioner argues that they should not be included in invested capital for the taxable years because they were not paid on the due date and because the interest payments were not kept up, and, therefore, the Board should hold that the notes were not originally bona fide paid in for stock. Interest accrued on the notes and it appears that the notes, with interest, are now being paid. There is nothing to indicate that the notes were not bona fide paid in, but, on the contrary, all the facts show that they were. The mere fact that the corporation did not enforce payment of the principal and interest promptly upon the due date should not in every case cause the exclusion of the notes from invested capital. The notes were perfectly good and could be enforced at any time. We think under the facts that the Commissioner was in error in excluding the amount of $6,000, represented by the notes, from invested capital for the taxable years. 1929 BTA LEXIS 2488">*2491 ; .
Decision will be entered under Rule 50.