*2526 1. Exempt Corporations. - The evidence does not show that the petitioner was exempt from taxation under section 231(11) of the Revenue Acts of 1918 and 1921.
2. Dividends. - Fixed dividends paid by a cooperative corporation are not deductible from its gross income.
3. Statute of Limitations. - On May 12, 1920, the petitioner filed its income and profits-tax return for the fiscal year ended February 29, 1920. On March 18, 1925, the petitioner and the respondent executed a consent in writing in which they agreed that the time for making any assessment for the fiscal year ended February 29, 1920, was to be extended to December 31, 1925, except that if a deficiency letter was mailed to the petitioner before December 31, 1925, and the petitioner appealed to the Board, the said date was to be extended by the number of days between the date of mailing the letter and the date of final decision by the Board. On December 2, 1925, respondent mailed petitioner a deficiency letter proposing a deficiency for the fiscal year in question. On January 30, 1926, petitioner filed this appeal. Held that the assessment and collection of such taxes are not barred by the statute*2527 of limitations.
*696 In this proceeding the petitioner seeks a redetermination of its income and profits-tax liability for the fiscal year ended February 29, 1920, the 10-month period ended December 31, 1920, and the calendar year 1921, for which the respondent has determined deficiencies of $917.21, $745.87, and $897.76, respectively. The issues are (1) whether the petitioner is exempt from taxation under section 231(11) of the Revenue Acts of 1918 and 1921, (2) if not, whether it is permitted to deduct from its gross income the 6 per cent dividend paid its stockholders in accordance with section 1, Article XIV, of its by-laws, and (3) whether the collection of the proposed deficiency of $917.21 for the fiscal year ended February 29, 1920, is barred by the statute of limitations.
FINDINGS OF FACT.
The petitioner was incorporated under the laws of the State of New York on March 16, 1915. Its by-laws are as follows:
ARTICLE I
Name
The name of this corporation is Farmers' Co-operative Milk Company, Incorporated.
*697 ARTICLE*2528 II
Location
The principal business place of this corporation shall be located in Pough-keepsie, N.Y.
ARTICLE III
Purposes
Conducting a general producing, manufacturing and merchandising business on the co-operative plan, as limited by article 3 of the business corporation law, in articles of common use, including farm products, food supplies, farm machinery and supplies, and articles of domestic and personal use.
ARTICLE IV
Directors
There shall be five directors, all of whom must be stockholders, who shall have general charge of all the business and property of the corporation, and all officers of the company shall be accountable to them. The Board of Directors shall be the Board of Auditors.
ARTICLE V
Officers
The officers of this corporation shall be chosen from among the directors as soon as practicable after the annual meeting. They shall consist of a President, a Vice-President, a Secretary, and a Treasurer.
ARTICLE VI
Duties of Officers
The duties of the officers shall be those generally appertaining to the several offices and such additional duties as may be prescribed by the Board of Directors. All vacancies occurring*2529 in the offices shall be filled by the directors, and shall hold offices until their successors are elected and qualified.
ARTICLE VII
Meetings
Section 1. The annual meeting of this corporation shall be held on the fourth Tuesday of January in each year, at the principal business office of the corporation.
Sec. 2. Special meetings may be called at any time by the President or by order of the Board of Directors and must be called by the President at any time on the written request of thirty per cent. of the stockholders.
Sec. 3. Quorum. Twenty-five per cent. of all the stockholders shall be in any special or regular meeting required to constitute a quorum of stockholders, and a majority of the full number of directors shall be required to constitute a quorum of directors.
*698 ARTICLE VIII
Capital Stock
The capital stock of this corporation shall consist of $100,000 dollars, which shall be represented by stock shares of the par value of five dollars each. No stock shall be transferred without the written consent of the corporation indorsed on the certificate of stock. The corporation shall have the first right to purchase at par, any stock of*2530 a stockholder offered for transfer or the stock of any deceased or retiring stockholder.
ARTICLE IX
Stockholders
Section 1. Any person owning one or more shares of the capital stock of the corporation, fully paid, shall be a stockholder and entitled to one vote at any regular or special meeting, but no stockholder shall be entitled to more than one vote, irrespective of the number of shares of stock owned by him.
Sec. 2. No person shall own capital stock of a greater aggregate par value than five thousand dollars.
ARTICLE X
Election of Directors
A full Board of Directors shall be elected at each annual meeting, but vacancies may be filled by the remaining members of the Board, or by a special meeting of stockholders. Regular meetings of directors shall be held on the tenth day of each month, at such hour and place as they shall see fit. If it falls on Sunday they shall meet on the Saturday preceding. Special meetings of the directors shall be called at any time by the President.
ARTICLE XI
Notice of Meeting
Section 1. A written or printed notice of all regular or special meetings shall be mailed by the Secretary to each stockholder at his last*2531 known address at least ten days before the date of such meeting.
Sec. 2. The notice of a special meeting shall specify the business to be considered and transacted at such meeting.
ARTICLE XII
Voting
Any stockholder may vote by properly constituted proxy, or in writing, providing the question upon which he votes in writing, shall have been submitted to him printed or written and attached by him to his vote thereon.
ARTICLE XIII
Managers and Employees
The Board of Directors shall employ and appoint a manager who shall employ the necessary help and have the general management of the business of the company, with the approval and direction of the Board of Directors.
*699 ARTICLE XIV
Division of Proceeds
Section 1. There shall be annually paid to all stockholders 6 per cent. upon their stock, provided the net earnings of the corporation, (after deducting the monthly payments to patrons) be sufficient. After April 1st, 1916, there shall be set aside, monthly sufficient funds to pay the 6 per cent. dividends on the capital stock, to be declared at each annual meeting; the same to have preference over the monthly payments to patrons.
Monthly*2532 Payments to Patrons
Sec. 2. The producers of milk furnishing milk to the Farmers' Co-operative Milk Company, shall receive each month full pay for the product furnished at the prices specified in the contract issued by the Crowley Dairy Products Company, on April 1, 1915. After April 1, 1916, all monthly payments to patrons shall be paid to the producer in accordance with the contract issued by the Crowley Dairy Products Company to the producers delivering milk to its station, No. 729 Main Street, Poughkeepsie, New York, and not in any event according to the terms made to the patrons delivering at other points; it being the intention of this company that the contracts issued by the Crowley Dairy Products Company for the year commencing April 1, 1915, for milk to be delivered at its plant at No. 729 Main Street, Poughkeepsie, New York, shall be the standard for all patrons and producers for the year commencing April 1, 1916, and thereafter.
Dividends to Producers
Sec. 3. At the close of the business year the directors of the Farmers' Cooperative Milk Company, Inc., shall apportion to their stockholding producers, who own $1 worth of stock for each pound of average milk, *2533 whatever surplus has accumulated, over and above operating expenses, interest, taxes, dividends on capital stock, and other charges, pro rata on the basis of average daily production. Yearly distributions of net surplus shall be apportioned as designated by law to patrons of the first-class (Stockholding Patrons), second class (Patrons that are not stockholders); those of the second to receive 50 per cent. of the amount paid to those of the first class of said surplus. In the distribution of yearly dividends to stockholding patrons, they shall receive in the distribution of the surplus in the first class, only on the amount of milk furnished up to $1 stock per pound daily average, and the balance of their product shall be paid at the rate paid to patrons of the second class. Milk may be contracted for from non-stockholders at discount off from price paid stockholders, without participation in the yearly net distribution.
Sec. 4. The Directors shall set aside annually at least 10 per cent. of the net earnings of the corporation (after deduction of dividends on capital stock and monthly payments to Patrons) as a reserve fund, until the reserve fund shall equal 30 per cent. of*2534 the paid-up capital stock.
Sec. 5. All stock dividends for a period of five years may be paid in capital stock at par.
.sec. 6. No dividends mentioned in Section 34 of Chapter 454 of the Laws of 1913, shall be paid by the corporation, except those hereinbefore set forth.
ARTICLE XV
Fiscal Year
The fiscal year or corporation year shall end on the 31st day of March.
*700 ARTICLE XVI
Surety Bonds
Any officer or employee of the corporation shall give such fidelity or surety bonds as may be required by the Board of Directors.
ARTICLE XVII
Amendment
These by-laws may be amended at any regular or special meeting of the corporation, provided the proposed amendment shall have been submitted in writing to the stockholders with the notice of the meeting at which such amendment will be considered and acted upon. A majority vote of the stockholders present or represented by proxy or written vote at such meeting, shall be necessary to adopt such amendment.
The stockholders of the petitioner consisted of three classes, namely, producing, nonproducing, and producing partial stockholders. The producing stockholders were those stockholders who were*2535 farmers and who sold to the petitioner their products consisting of milk, cream, butter and buttermilk. The nonproducing class was composed of merchants who had purchased stock in the petitioner believing that the organization and operation of such a company would be beneficial to the community. They sold to the petitioner no products of any kind. The third class were those stockholders who did not have enough stock to entitle them to the highest return for the milk sold by them to the corporation. On December 31, 1921, there was a total of 262 stockholders, of which 42 were of the nonproducing class. The nonproducing stockholders did not take any active part in the management of the company. The petitioner also purchased products from farmers who were not stockholders.
The petitioner in paying all producers, whether stockholders or nonstockholders, for products sold to it, deducted and withheld one per cent from the price agreed upon. In the case of nonstockholders, the petitioner deducted and withheld 3 per cent in addition to the 1 per cent deducted from all producers. The 1 per cent was withheld to build up a fund to be used to retire a bond issue and the 3 per cent*2536 was considered as a handling charge. No distribution has been made in accordance with section 3, of article XIV of its by-laws.
The petitioner on May 12, 1920, filed with the collector of internal revenue for its district, its income and profits-tax return for the fiscal year ended February 29, 1920. On March 18, 1925, the petitioner and the respondent executed the following waiver:
IT:CA:2223-15
March 14, 1925
INCOME AND PROFITS TAX WAIVER
(For taxable years ended prior to March 1, 1921)
In pursuance of the provisions of existing Internal Revenue Laws, Farmers' Co-operative Milk Company, a taxpayer of Poughkeepsie, New York, and the *701 Commissioner of Internal Revenue hereby waive the time prescribed by law for making any assessment of the amount of income, excess-profits, or warprofits taxes due under any return made by or on behalf of said taxpayer for the year February 29, 1920 under existing revenue acts, or under prior revenue acts. This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1925, and shall then expire except that if a notice of a deficiency in tax is sent to said taxpayer by registered mail*2537 before said date and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended sixty days, or (2) if an appeal is filed with said Board then said date shall be extended by the number of days between the date of mailing of said notice of deficiency and the date of final decision by said Board.
Farmers' Co-operative Milk Co. Inc.,
[SEAL.] (Signed) Charles M. Bull, Treasurer,
Taxpayer
(Signed) D. H. Blair.
Commissioner.
The respondent on December 2, 1925, mailed the petitioner a deficiency letter for the fiscal year ended February 29, 1920, in which a deficiency of $917.21 was proposed, and on March 14, 1927, for reasons not shown by the record, assessed the taxes proposed in his letter of December 2, 1925.
OPINION.
GREEN: The petitioner claims exemption from taxation under section 231(11) of the Revenue Acts of 1918 and 1921, and should it fail in this, it contends that the 6 per cent dividend paid its stockholders in accordance with section 1, article XIV of its by-laws is an allowable deduction from gross income. In any event, it contends that the respondent is barred by the statute of limitations from collecting*2538 the deficiency of $917.21 proposed for the fiscal year ended February 29, 1920.
Section 231(11) of the Revenue Acts of 1918 and 1921 provides that the following organizations shall be exempt from taxation:
Farmers', fruit growers', or like associations, organized and operated as sales agents for the purpose of marketing the products of members and turning back to them the proceeds of sales, less the necessary selling expenses, on the basis of the quantity of produce furnished by them.
These sections grant exemption from taxation. They must be strictly construed and a taxpayer claiming exemption under them must prove clearly that it comes within their provisions. .
We do not think the petitioner has succeeded in proving that it comes within the exemption clause. Article VIII of the petitioner's by-laws provides that its capital stock shall consist of $100,000, represented *702 by 20,000 shares of the par value of $5 each; article IX provides that in order to become a stockholder a person must own at least one share; that no person shall own more than 1,000 shares; and article XIV provides*2539 that "After April 1st, 1916, there shall be set aside, monthly sufficient funds to pay the 6 per cent. dividends on the capital stock, to be declared at each annual meeting; the same to have preference over the monthly payments to patrons." On December 31, 1921, there was a total of 262 stockholders of which 42 were of the nonproducing class. Under the terms of the by-laws it was possible for a nonproducing stockholder to own 1,000 shares of stock of the par value of $5,000, on which he would have preference of receiving $300 in dividends over the monthly payments to patrons while at the same time a producing stockholder who only owned one share of stock would be entitled to dividends of only 30 cents. The record does not show the amount of stock held by the 42 nonproducers, but it would have been possible for them to own over 98 per cent. Were that true we do not think the test in the statute is met which requires that the proceeds of sales (less the necessary selling expenses) be turned back "on the basis of the quantity of produce furnished." Furthermore, the statute grants exemption only to those associations that are organized and operated for the purpose of*2540 marketing the products of "members." The petitioner marketed the products of "nonmembers," but to what extent we were not advised. In fact the evidence tells us very little of how the business of this petitioner was conducted. In the absence of proper evidence we must approve the respondent's determination on this point.
Whether the 6 per cent fixed dividends on capital stock may be deducted from gross income in determining net income has already been decided adversely to the petitioner's contentions. See ; ; and .
The petitioner contends that the respondent is barred by the statute of limitations from collecting the deficiency of $917.21 for the fiscal year ended February 29, 1920, which he, for reasons not shown by the record, assessed on March 14, 1927. It bases its contention on the ground that the consent executed by both parties on March 18, 1925, relates to the assessment only; that it was not valid beyond December 31, 1925; that the assessment being made after*2541 December 31, 1925, was invalid; and that the respondent having brought no suit or proceeding for the collection of the taxes within five years from May 12, 1920, the date it filed its return, the collection is now barred.
*703 Section 278 of the Revenue Act of 1924, which was in effect at the time the consent in question was agreed upon, provides in part as follows:
Sec. 278. (c) Where both the Commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon.
Sec. 278. (d) Where the assessment of the tax is made within the period prescribed in section 277 or in this section, such tax may be collected by distraint or by a proceeding in court, begun within six years after the assessment of the tax. * * *
Counsel for the petitioner argues, however, that the period agreed upon in the consent was December 31, 1925, and that the excepting clause in the consent providing that "if a notice of a deficiency in tax is sent to said taxpayer by registered mail before said date and * * * an appeal is filed with said*2542 Board, then said date shall be extended by the number of days between the date of mailing of said notice of deficiency and the date of final decision by said Board," was ineffective. He argues further as follows:
It is to be observed that an attempt to extend a date is made in this waiver, whereas such an extension is an impossibility. December 31, 1925, will remain December 31, 1925.
Section 278(c) of the Revenue Act of 1924, which controlled this waiver question when the waiver was filed, provides: "(c) Where both the Commissioner and the Taxpayer have consented in writing to the assessment of the tax after the time prescribed in Section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon." Article 1271(6) of Regulations 65, which is the Commissioner's own interpretation of the foregoing statute, also contains the words, "expiration of the period agreed upon." Now, while the Commissioner, in preparing this waiver, doubtless intended to provide for the extension beyond December 31, 1925, of the period within which the tax might be assessed in the event of an appeal to this Board, he failed to do so. A date*2543 and a period of time are not the same.
We see no merit in such an argument. The period here agreed upon for assessment of tax ended December 31, 1925, except that if the respondent mailed the petitioner a deficiency letter before December 31, 1925, and the petitioner appealed to the Board, the period ending December 31, 1925, was to be extended by the number of days between the date of mailing of the letter and the date of final decision by the Board. We express no opinion as to the validity of the assessment made by the respondent on March 14, 1927, but in any event it is our opinion that the period within which a valid assessment may be made will not expire until twenty-nine days after our decision has become final. It follows that in accordance with section *704 278(d) of the Revenue Act of 1926, the collection of such deficiency is not barred.
Judgment will be entered for the respondent.
Considered by STERNHAGEN, LANSDON, and ARUNDELL.