*3370 Before considering the question whether an affiliated group may have a deduction for alleged loss of one of the corporations in disposing of the stock of another, there must be proof of the requisite elements of loss; and where the evidence indicates that the stock disposed of was without value on March 1, 1913, no deduction may be taken.
*1273 This proceeding involves a deficiency in income and profits taxes for the fiscal year ended November 30, 1920, of $37,246.90, the major portion of which is in controversy. The petitioner alleges that the respondent erred (1) in disallowing a loss upon the liquidation of a subsidiary and (2) in disallowing in part a deduction for a bonus paid to employees.
FINDINGS OF FACT.
The petitioner is a corporation with its main office in Beatrice, Nebr. In 1894 the petitioner purchased the assets of a business at Florence, Ala., which was engaged in the manufacture of wood pumps and porch columns from yellow poplar lumber. For about ten years this business was conducted as*3371 a branch of the petitioner.
From 1894 to 1904 the business in Florence was profitably operated and it was the policy of the company to increase its investment 269. See also .
In 1904 or 1905 the business was incorporated under the laws of the State of Maine as the Florence Pump & Lumber Co. In 1915 the name was changed to the Florence Table & Lumber Co. At the time of incorporation the petitioner transferred the assets of the business located at Florence to the new corporation, hereinafter sometimes referred to as "the subsidiary," for $135,000 of preferred stock, which was the entire capital outstanding at that time. On March 1, 1913, the petitioner held $133,700 of the stock of the subsidiary, the balance being owned by one of the company's managers. *1274 On August 1, 1920, the petitioner again owned $135,000 of the stock of the subsidiary, having acquired the stock formerly owned by the manager.
Before 1905 the supply of yellow poplar in the neighborhood of Florence became depleted to the extent that there was not enough to run the plant. An investigation was made to determine whether another*3372 wood could be used for the manufacture of wood pumps and porch columns. It was decided to use yellow cottonwood which was available in quantities in the Mississippi Valley in the vicinity of Memphis, Tenn. Accordingly, the factory was moved to a plot of ground just south of Memphis.
It was found that yellow cottonwood was not suitable for pumps, due to cracking and warping, and the company suffered continual losses from operations. Experiments were conducted upon various woods with a view of finding one which would be workable. The petitioner advanced the money necessary to conduct these experiments and charged it to the subsidiary on its books. The experiments continued until 1910 or 1912, when it was practically conceded that they were unsuccessful, and the company eventuallu lost all of its wood pump business. The amounts paid for this purpose were treated on the books of the company as losses. As of November 30, 1912, the petitioner carried on its balance sheet an item captioned "Reserve, Florence Table & Lumber Company," which showed a credit balance of $195,208.06. This reserve was built up by charges of loss and gain on the books and credits to this reserve to take*3373 care of operating losses sustained by the subsidiary.
On March 1, 1913, if the amounts expended on experiments be not considered as capital items, the subsidiary had a deficit of $71,755.
On August 1, 1920, the subsidiary was indebted to the petitioner in the amount of $250,656.87, arising from advances made by the petitioner to the subsidiary. During August and September, 1920, the subsidiary was liquidated. Pursuant to resolutions passed by the boards of directors of the companies the assets and liabilities of the subsidiary were acquired and assumed by the petitioner at a net valuation of $183,302.85. This amount was applied against the sum of $250,656.87, leaving a balance of $67,354.02. In the petitioner's return for 1920 it deducted this amount. It also deducted the sum of $135,000, representing its investment in the stock of the subsidiary, as a loss.
On November 16, 1920, the Florence Table & Lumber Co. was dissolved by a decree of the Supreme Judicial Court of Equity of Maine. The subsidiary was liquidated and dissolved with the intention of securing a loss for income-tax purposes.
*1275 From 1909 to 1917 the petitioner and the subsidiary filed separate*3374 returns and the petitioner did not secure the benefit of any deduction on account of the operating losses of the subsidiary. For the years ended November 30, 1918 and 1919, consolidated returns were filed and the petitioner secured the benefit of the subsidiary's operating loss.
In 1920 the petitioner adopted a profit-sharing plan whereby labor would participate in the profits of the business. The plan was substantially as follows:
(1) From the profits of the petitioner there would first be deducted 8 per cent of the total capital and surplus invested in the business. (2) Thereafter one-half of 1 per cent of the investment was placed in a profit-sharing reserve fund. This fund was created to provide means to purchase from employees leaving the service of the company stock acquired as hereinafter set forth. (3) All remaining profits were to go to participating labor until it reached an amount equal to 8% of the wages paid to labor. (4) Any remaining undistributed profits after such division were to be prorated equally between capital and labor. All profits accruing to participating labor from the profit-sharing plan were to be turned over to a board of trustees with the*3375 understanding that they were to be invested in the common stock of the Dempster Mill Manufacturing Co. on the basis of the book value of such stock. This stock was to draw the same dividends, share in the surplus and have the same voting power as any other common stock in the company. The stock was to remain in the hands of the board of trustees for five years before division thereof could be made among the owners. Any dividends declared on the stock during the interim would be paid to the trustees.
During 1920 petitioner computed the share of participating labor in its profits for that year to be $30,862. Common stock of the company having a book value in that amount, figured on a basis of $150 a share, was issued to the trustees, expenses were debited in that amount, capital stock was credited in the amount of $20,575, and paid-in surplus was credited in the amount of $10,287. Petitioner in its return for 1920 claimed a deduction in the amount of $30,862. The respondent allowed a deduction of $20,575, and disallowed the deduction of $10,287.
The stock of the petitioner in 1920 had a fair market value not in excess of $80 a share. At the time when this bonus transaction*3376 took place the stock was selling at about $75 a share. In 1920 a modification of the bonus plan was made, owing to the fact that some of the employees preferred cash instead of stock. As a result of this modification $4,341.17 par value stock of the $20,575 par *1276 value stock issued in 1920 was turned in and $2,010.64 cash given employees.
OPINION.
STERNHAGEN: Much of the petitioner's argument is directed to a question of law, whether the so-called parent corporation in an affiliated group within section 240, Revenue Act of 1918, may deduct a loss brought about by the dissolution and liquidation of the subsidiary. The question has been considered in ; , and other cases, but petitioner says those cases are distinguishable in fact. We leave these questions undecided, because they arise only upon the assumption that, apart from affiliation, a loss has been sustained which under the statute may be deducted.
The evidence does not establish a loss. Before a deduction can be taken for loss in respect of property acquired prior to March 1, 1913, the basis of loss must*3377 be established, and such basis is the lower of the figures of the value of the asset on March 1, 1913, and the actual cost. ; . Here the evidence indicates that neither the assets nor the stock of the Florence Company was valuable on that date. The loss, if any there was, was sustained prior to March 1, 1913, and the formal dissolution in 1920 of the Florence Company gave the Dempster Company no new opportunity for a deduction. We say this notwithstanding the oral testimony of a witness primarily interested in the event that the Florence stock was on March 1, 1913, worth par, for in the light of the other evidence we must reject this witness's statement as an unsupported opinion. ; .
The petitioner claims a greater deduction than the Commissioner has allowed in respect of so-called bonuses paid to employees under the plan outlined in the findings. The terms of the plan are not in evidence, but its general provisions appear as set forth. *3378 Apparently the petitioner issued its own stock to the trustee, although it accounted for it as if it had paid cash, which in turn was used to buy stock. When the stock was issued it was worth $70 or $80 a share, or less than par. The Commissioner allowed a deduction measured by par, and the petitioner demands that the deduction be measured by an alleged book value of $150 a share used in accounting for the bonus. We need not go beyond the issues raised to consider whether the respondent, by permitting the deduction of the par value of the stock, has allowed too much; but the inadequacy of the evidence precludes the Board from stating, as the petitioner claims, that he allowed too little. We may not assume that the petitioner kept its books upon *1277 other than the basis of cash receipts and disbursements; we may not assume that the book value of the stock was correctly taken to be $150 a share; and we may not assume that the corporation under the profit-sharing plan actually incurred an obligation of $30,862. From the pleadings it appears that all of these matters are in issue. The respondent's determination is sustained.
Judgment will be entered under Rule 50.*3379