MEMORANDUM FINDINGS OF FACT AND OPINION
WILBUR, Judge: Respondent determined deficiencies in petitioners' Federal income taxes and additions to tax as follows:
| Addition to Tax 1 | |||
| Petitioner | Year | Deficiency | Under Sec. 6651(a) |
| National Utility | 1969 | $ 3,266 | |
| Products Company 2 | 1970 | 58,386 | |
| Harold M. and | 1970 | 10,967 | |
| Ann T. Bowman 3 | 1971 | 12,891 | $683 |
Concessions having been made, the following four issues*21 remain for our decision:
(1) Whether NUPCO is limited in its deduction for depreciation of a patent acquired on January 5, 1970, to 8 percent of the sales of items sold under the patent.
(2) Whether NUPCO's obligation to pay Bowman under a patent assignment qualifies as an "indebtedness" upon which accrued interest may be deducted under
(3) If such obligation is found to qualify under that section, whether and to what extent interest was actually paid on the obligation in accordance with
(4) Whether petitioners, Harold M. and Ann T. Bowman, timely filed their joint Federal income tax return for the taxable year ended December 31, 1971.
FINDINGS OF FACT
Some of the facts have been stipulated. The stipulation of facts and attached exhibits are incorporated herein by this reference.
Petitioner National Utility Products Company (NUPCO) is an Ohio corporation incorporated on May 31, 1962. At all times relevant to this matter, it had its principal place of business in Cleveland, Ohio. NUPCO maintained its books and records and filed its Federal income tax returns using an accrual method of accounting and a calendar year. For calendar*22 years beginning January 1, 1971, NUPCO filed a timely election to be taxed as a "Subchapter S" corporation under section 1371.
Harold M. Bowman (Bowman) and Ann T. Bowman are husband and wife who reside in Cleveland, Ohio. They filed joint Federal income tax returns for the calendar years 1970 and 1971 which were prepared and filed on the cash basis method of accounting.
During all the years in issue, Bowman owned all of the issued and outstanding capital stock of NUPCO, which consisted of 100 shares of no par value common stock. At the time of its incorporation, Bowman's adjusted cost basis of NUPCO's stock was $1,250.
On November 23, 1965, Letters Patent (hereinafter referred to as "the patent" or as "patent 1") were granted to Bowman by the United States Patent Office in connection with a device which permits the raising of the level of manholes when roads are being repaved. On January 5, 1970, Bowman sold this patent to NUPCO. In connection with this sale, two documents were executed on this date. One document, entitled "Assignment of Patent," was entered into by and between Harold M. Bowman as assignor and NUPCO as assignee. The pertinent provisions of this document*23 provided as follows:
NOW, THEREFORE, the parties hereto agree as follows:
1. Assignor hereby sells, assigns and transfers to Assignee his entire right title and interest in and to the Manhole Cover Support
2. The purchase price shall be Seven Million Eight Hundred Thousand Dollars ($7,800,000.00) and shall be payable as follows:
a. Assignee shall pay Assignor eight per cent (8%) of gross sales made by Assignee resulting from the utilization of the subject patent until such time as the purchase price of Seven Million Eight Hundred Thousand Dollars ($7,800,000.00) has been fully remitted to Assignor.
b. There shall be no principal payments made by Assignee to Assignor during the first twelve (12) months from the date of assignment of the subject patent.
c. The first principal payment shall be due by no later than December 31, 1971 and shall consist of principal payments*24 due for the year 1970 together with principal payments due for the year 1971, said payments to be computed in accordance with Pargraph 2.a. above.
d. Each and every year thereafter, Assignee shall remit to Assignor a principal payment based on eight per cent (8%) of gross sales which amount shall be due by no later than December 31, 3f each respective year.
e. The unpaid balance of the purchase price beginning with the date of assignment of the subject patent shall bear simple interest at the annual rate of four per cent (4%) and same shall be due and payable by no later than March 15th of each year.
The other document, executed by NUPCO in favor of Bowman, was entitled "Promissory Note." It stated, in pertinent part:
On demand, the undersigned, National Utility Products Company by its President and Secretary, Harold Bowman promises to pay to the order of Harold Bowman, the principal sum of Seven Million Eight Hundred Thousand Dollars ($7,800,000.00) for value received bearing simple annual interest at the rate of four per cent (4%). Principal and interest shall be paid in installments in accordance with the terms and provisions of a certain Patent Assignment entered*25 into by and between National Utility Products Company and Harold Bowman dated the 5th day of January, 1970.
The undersigned shall have the right to prepay any part or all of this note at any time or times without penalty and with interest computed only to the date of prepayment.
The $7,800,000 figure was determined in 1969 in this way: Bowman first estimated what NUPCO's total unit sales of products manufactured under the patent would be for 1969. Then he estimated the probable percent by which sales could be expected to increase each year over the remaining useful life of the patent, 13 years, and thereby determined the probable total unit sales for the patent's remaining life. An estimate was next made of the selling price of patented products over the 13-year period. The expected unit sales for each year were multiplied by the expected selling price to arrive at the estimated total dollar sales for each year. Bowman's estimates, which are summarized below, indicated that $105,601,828 worth of patented products would be sold over the next 13 years.
| Estimated | Estimated | Estimated | Estimated | |
| Calendar | % Sales | Units | Selling | Total |
| Year | Increase | Sold | Price | Sales |
| 1970 | 20% | 10,400 | $39 ea. | $ 405,600 |
| 1971 | 20% | 12,480 | 40 | 499,200 |
| 1972 | 30% | 16,224 | 42 | 681,408 |
| 1973 | 30% | 21,091 | 44 | 928,004 |
| 1974 | 40% | 29,527 | 46 | 1,358,242 |
| 19 75 | 40% | 41,338 | 48 | 1,984,224 |
| 1976 | 50% | 62,007 | 50 | 3,100,350 |
| 1977 | 50% | 93,011 | 50 | 4,650,550 |
| 1978 | 50% | 139,517 | 50 | 6,975,850 |
| 1979 | 50% | 209,276 | 50 | 10,463,800 |
| 1980 | 50% | 313,914 | 50 | 15,695,700 |
| 1981 | 50% | 470,871 | 50 | 23,543,550 |
| 1982 | 50% | 706,307 | 50 | 35,315,350 |
| $105,601,828 |
*26 It was then determined that between 7 percent and 8 percent of the total dollar sales would be a reasonable sales price for the patent. The $7,800,000 sales price resulted from this process.
In arriving at these projected figures, Bowman compared the estimated unit sales for each year with the total potential municipal market in being. Using 1968 statistics prepared by the Federal Bureau of Roads he found that there were over 532,000 miles of municipal roads and streets in the United States. Estimating that between 8 percent and 10 percent of these roads would be resurfaced each year and that each mile of road surface contained an average of 50 manholes, he determined that over 2,000,000 manholes would be raised each year. This was the product's potential yearly market used. The estimated yearly sales range from about.5 percent to approximately 30 percent of this figure.In making this estimate of the potential market, Bowman did not consider all of the potential markets for the product such as public utilities, military bases, and foreign markets.
The per unit selling price of the patented product since its acquisition by NUPCO has been greater than the estimated price used*27 by Bowman in 1969 when he computed the $7,800,000 figure. Additionally dollar sales for the years before the Court have been in the projected range, and for the last year (1972) substantially exceeded projections.
In addition to patent 1, Bowman applied for another patent (patent 2) in 1972 or 1973 which was granted in 1974. Application for a third patent (patent 3) was pending at the time of trial.These patents cover devices for raising the level of manhole covers for street repaving purposes, although patent 2 permits a more finite vertical height adjustment than patent 1. Bowman sold patent 2 and the application to patent 3 to NUPCO for $4,000,000 and $21,000,000, respectively. Essentially the only products NUPCO sells are castings protected by these patents. NUPCO has reported sales on its Federal income tax returns in the following amounts:
| Year | Sales |
| 1969 | $ 292,800 |
| 1970 | 394,387 |
| 1971 | 463,300 |
| 1972 | 781,347 |
Patent 1 was a significant technological innovation, providing a virtually unlimited opportunity for economic exploitation. The patented product enabled New York City to enter into a substantial street resurfacing program in 1970 which would*28 not otherwise have been undertaken. Aside from products produced by NUPCO under patents 2 and 3, there is no genuine competition to products produced under it.
In payment of the 4 percent per annum interest on the unpaid balance due on the patent's purchase price, NUPCO issued to Bowman two cognovit notes. The first cognovit note was issued on March 8, 1971. In it NUPCO promised to pay Bowman on demand $312,000 with interest at the rate of 6 percent per annum. The second cognovit note was issued on March 6, 1972. In it NUPCO promised to pay Bowman on demand $309,255 with interest at the rate of 6 percent per annum. On their 1971 and 1972 Federal income tax returns the Bowmans reported the face amounts of these notes, $312,000 and $309,255, respectively, as income.
On the day the first note was signed, the balance of NUPCO's various banking accounts totaled $28,005.25. The maximum amount NUPCO had in these accounts at any one time during March 1971 was $44,564.15, and it ended the year 1971 with $71,724.12. By the end of March 1972, the month during which the second note was signed NUPCO's banking accounts totaled $30,233.29, and this increased to $102,836.16 by December 29, 1972.
*29 NUPCO's cash, accounts receivable, inventories, fixed depreciable assets (less depreciation), total assets, accounts payable, and total deficit were listed on its balance sheets for the period 1970 through 1972 as follows:
| 1970 | 1971 | 1972 | |
| Cash | $ 32,340 | $ 67,256 | $ 120,545 |
| Accounts rec. | 70,976 | 87,136 | 162,843 |
| Inventories | 92,497 | 106,647 | 90,977 |
| Fixed assets | 17,513 | 40,298 | 45,391 |
| Total assets | 7,413,601 | 6,903,836 | 10,497,913 |
| Accounts pay- | |||
| able | 36,260 | 37,097 | 36,882 |
| Operating | |||
| deficit | 744,575 | 1,547,816 | 2,186,123 |
The year-end balances on the books and records of NUPCO with regard to the two cognovit notes for the years 1971 through 1975 were as follows:
| Year | 1971 Note | 1972 Note |
| 1971 | $ 309,845 | N/A |
| 1972 | 273,836 | $ 309,255 |
| 1973 | 273,836 | 309,255 |
| 1974 | 37,588 | 309,255 |
| 1975 | 233,191 |
The reductions in these balances were the result of allocations by journal entry at each year's end of annual withdrawals from NUPCO by Bowman.
During 1973 NUPCO purchased a turboprop airplane for approximately $500,000. In 1974, it was traded in to purchase an $800,000 jet. NUPCO, after paying the down payments, obtained*30 financing to make these purchases.Also, in 1974, in order to obtain a reliable source of supply for the patented products, the decision was made to purchase a foundry. Another corporation, the stock of which was owned by Bowman, was created to purchase the foundry for a $2,000,000 purchase price. The foundry supplies all of NUPCO's needs and also manufactures products for other companies. The money for this purchase was loaned, at least in part, on the strength of NUPCO. However, the lenders who financed these purchases required NUPCO to subordinate its obligations owed to Bowman to the foundry and aircraft mortgages.
On its Federal income tax return for the taxable year 1970, NUPCO claimed deductions for depreciation of $600,000 and for interest in the amount of $312,000, both in respect of the patent acquired on January 5, 1970. On its Federal income tax return for the taxable year 1971, NUPCO again claimed a $600,000 deduction for depreciation and a $309,255 interest deduction both in respect of the patent. NUPCO determined the amount of the depreciation deduction by dividing $7,800,000 by the 13 years of the patent's validity remaining when it was purchased in 1970.
The*31 Bowmans received a six-month extension to file their 1971 joint Federal income tax return. This changed the date their return was due from April 15, 1972 to September 15, 1972. Their 1971 joint Federal income tax return was stamped as received by the Internal Revenue Service on September 22, 1972.
ULTIMATE FINDINGS OF FACT
The patent assignment unconditionally obligated NUPCO to pay Bowman $7,800,000, giving NUPCO a cost basis of $7,800,000 in the patent for purposes of computing depreciation.
The cognovit note given to Bowman by NUPCO in 1971 had a fair market value when issued of $208,000. The note given in 1972 had a fair market value when issued of $206,170.
The Bowman's joint Federal income tax return for taxable year 1972 was not timely filed.
OPINION
Issues 1 and 2
On January 5, 1970, Bowman sold his rights under a patent for a manhole cover casting to NUPCO, his solely-owned corporation. In connection with this sale two documents, denominated "Assignment of Patent" and "Promissory Note," were executed. The resolution of the first and second issues we face depends upon the single question of whether the patent sale obligated NUPCO to pay Bowman a fixed*32 dollar sum of $7,800,000, as petitioners contend, or whether it need pay only 8 percent of gross sales of patented products up to a maximum of $7,800,000, as respondent contends.
The first issue involves the proper method to determine the depreciation allowable upon the patent.
The second issue involves the amount of interest arising out of the patent sale which is properly*34 deductible under
Thus we must determine the terms of the patent sale under the applicable state law, that of Ohio. 4 In so doing, we*35 seek primarily to ascertain the intent of the parties to the transaction as expressed in the written documents before us.
*37 After considering the written documents and the testimony in light of all the surrounding circumstances, including the economic potential of the invention involved, and the appropriate judicial standards for contract interpretation articulated previously, we conclude that the patent sale unconditionally obligated NUPCO to pay Bowman the fixed sum of $7,800,000. Several factors, no one of them in itself conclusive, lead us to this conclusion.
First, the wording of the documents expresses the specific consideration given for the patent. Paragraph 2 of the patent assignment begins by stating that: "The purchase price shall be Seven Million Eight Hundred Thousand Dollars * * *." By contrast, the clauses requiring NUPCO to pay 8 percent of gross sales of patented items appear in subparagraphs 2a and 2d as terms of payment. Neither these nor the other terms of payment provisions under paragraph 2 purport to limit the total amount actually payable, but only relate to the timing of payment. Indeed subparagraph 2a again unequivocally states that payments are to continue until "the purchase price" of $7,800,000 has been paid. (Subparagraph 2e also specifically refers to the "purchase*38 price.")
Similarly, the promissory note describes $7,800,000 as the principal sum while referring to the patent assignment only as to the terms of payment. Where the parties "intend that the debt shall be absolute, and fix upon the future event as a convenient time for payment merely, * * * the debt will not be contingent; and, if the future event does not happen as contemplated, the law will require payment to be made within a reasonable time." [footnote omitted] [5 Jaeger, Williston on Contracts, section 799, p. 817 (3d ed. 1961), quoting
Second, the interest requirement supplies further indication of the contractual intention to set the sale price at a fixed dollar amount. Paragraph 2e of the patent assignment requires NUPCO to pay 4 percent simple annual interest on the unpaid balance of the purchase price and the promissory note states that NUPCO will pay the principal sum of $7,800,000 "bearing simple annual*39 interest at the rate of four per cent (4%)." NUPCO issued promissory notes at amounts equal to 4 percent of the portion of the $7,800,000 unpaid at each year's end. Thus, petitioners' contention as to a fixed dollar consideration reconciles the interest provisions in the documents with each other and with the parties' consistent course of conduct under the agreement.
By contrast, respondent's interpretation of a consideration dependent upon gross sales creates an inconsistency because interest could not be determined each year on the unpaid balance of an undertermined purchase price. Additionally, the promissory note and NUPCO's conduct in determining interest on the basis of a fixed $7,800,000 purchase price is consistent with the patent assignment which states that interest is to be determined with reference to the "unpaid balance of the purchase price." As between a reasonable interpretation of a contract which creates inconsistencies, and one which reconciles all the clauses, the latter is clearly preferable.
Third, the promissory note contains a clause giving NUPCO the right to prepay any or all of the $7,800,000 "without penalty and with interest computed only to the date of prepayment." Such prepayment clauses enable obligors to decrease their interest expenses and normally presuppose a determinate liability. Thus the presence of a prepayment clause herein adds further support to the conclusion that the agreement requires NUPCO to pay $7,800,000 and 4 percent interest computed on the portion of that figure unpaid each year.
Fourth, petitioners' interpretation is also more in harmony with the general rule that:
[Where] the contract contains a definite and unambiguous promise to pay for labor and materials performed and furnished, or for other services, equally clear and unambiguous language, expressing the intention that the happening of a contingency over which the promisee has no control shall be a condition precedent to payment, must be found in the contract before the positive and absolute agreement to pay will be considered as*41 superseded.
Finally, the circumstances surrounding Bowman's setting of the $7,800,000 figure evidence his intent to establish a fixed dollar amount. He began by computing the total expected sales of patented products over the patent's remaining useful life. Then he chose a dollar figure based on a percentage of this amount which he and his experienced patent attorney agreed was in accord with generally accepted standards for patent sales. Finally he estimated the total annual urban market to determine the reasonableness of this figure. This procedure suggests the desire to establish a firm price rather than, as respondent contends, an intent to make the sales price contingent upon gross sales.
Nor did Bowman merely conceive of $7,800,000 as the maximum possible reasonable royalty. This figure amounts to only approximately 7.4 percent of the estimated $105,601,828 of sales to be made under the patent, while installments made at the rate of 8 percent of sales will reach $7,800,000 when only $97,500,000 of sales is made.
Respondent*42 objects to our conclusion by arguing that the patent assignment makes each payment dependent upon output and contains no provision should 8 percent of gross sales not reach $7,800,000. This argument fails for three reasons. First, in focusing exclusively upon subparagraphs 2a and 2d it fails to consider the other portions of the relevant documents discussed previously. In particular, respondent ignores the clear statement of the patent sale that the "purchase price shall be" $7,800,000. Read in their entirety, the documents and surrounding conduct reveal an intention to establish this amount as an unconditional purchase price. Secondly, the 8 percent of gross sales provisions merely state a convenient payment schedule and not a condition of payment. It has long been recognized that, where the parties intend an unconditional obligation and insert a clause indicating a source from which payment is to be made merely to fix the time within which payment is due, the mere failure of that source to materialize does not relieve the obligor of liability. Rather, performance may be demanded within*43 a reasonable time after the source should have been realized. See, e.g.,
Each case must, of course, be decided on the record before the Court. With this in mind, we emphasize that respondent has not argued that the transaction here involved is a sham, lacks economic reality, or is at bottom a license or a section 351 transaction masquerading as a sale. Indeed, respondent concedes that a sale occurred, and has from the deficiency notice through reply briefs rested his case solely on the assertion that the sale which admittedly occurred was for a contingent*44 consideration.
We also emphasize that in agreeing that a sale took place and focusing the dispute solely on the nature of the consideration called for by the contract, respondent has presented us only with an issue of contract interpretation in which he has not made valuation an issue. Indeed, respondent stated on reply brief:
Respondent does not dispute that the idea and invention of the Adjust-to-Grade casting was generally valuable. However, respondent submits that the Court need not determine an actual fair market value of the patent inasmuch as the parties to the patent assignment themselves merely provided for a maximum value based upon sales * * *.
Although respondent has not raised the issue of value nor argued that the transaction is a sham or lacks economic reality, we believe it appropriate to point out that we deal here only with the basic innovation (patent number 1), and that it clearly had very substantial value. The basic invention greatly facilitated repairing of urban streets. This is a classic case of petitioner building a better mousetrap. The decision by New York City to utilize petitioners' invention in its repairing operations demonstrates the unlimited*45 economic potential involved. As we noted earlier, petitioners' estimates did not take into account the potential market represented by military bases or public utilities. Neither were foreign markets considered, including nearby cities in Canada such as Toronto and Montreal. Finally, the process itself insured increased repairing of existing mileage by obviating the necessity of raising manholes, thereby both simplifying the process and greatly reducing costs.
While the basic innovation (patent number 1) was of very great value, we need not decide its precise value since respondent has consistently eschewed valuation as an issue in this case. We do, however, again emphasize that we deal only with the basic innovation (patent number 1) and NUPCO's years 1969 and 1970, and intend no implications concerning the circumstances of the transfer of the subsequent refinements (patents numbers 2 and 3). 6
*46 Issue 3.
On March 8, 1971 and March 6, 1972, NUPCO issued cognovit notes in the amounts of $312,000 and $309,255, respectively, to Bowman, its sole shareholder. These notes were in payment of interest arising out of a patent sale which NUPCO had accrued and deducted during 1970 and 1971, respectively. Bowman reported the face value of the notes as income for the years received. The issue presented by these facts is whether the notes constituted payment of the interest within the meaning of
(A) If within the period consisting of the taxable year of the taxpayer and 2 1/2 months after the close thereof (i) such * * * interest * * * [is] not paid, and (ii) the amount thereof is not includible in the gross income of the person to whom the payment is to be made; and
(B) If, by reason of the method of accounting of the person to whom the payment is to be made, the amount thereof is not, unless paid, includible in the gross income of such person for the taxable year in which or with which the taxable year of the taxpayer ends; and
(C) If, at the close*47 of the taxable year of the taxpayer or at any time within 2 1/2 months thereafter, both the taxpayer and the person to whom the payment is to be made are persons specified within any one of the paragraphs of subsection (b).
Although all three conditions must coexist to result in the denial of a deduction, 7 it is clear, and petitioners do not dispute, that the requirements of
(3) The expenses and interest specified in
See
Respondent contends that the notes had no ascertainable fair market value when issued and, hence, that they represent neither income to Bowman nor payment by NUPCO within that section. Conversely, petitioners contend that the notes had a fair market value equivalent to their face value when issued. They conclude, therefore, that Bowman properly reported this amount as income when received, and that
After considering the evidence presented, we conclude that the notes were clearly not worth their face value. However, neither were they entirely worthless. Since each note constitutes payment by NUPCO and income to Bowman "to the extent of the fair market value on the date of issue,"
Three principal factors convince us that the notes' fair market value when issued was less than their face value.
First, while NUPCO's prospects were extremely promising*50 it was (when the obligations due Bowman were accounted for) operating at a deficit when the notes were issued. For the years 1970 through 1972 it showed growing deficits of $744,575, $1,547,816, and $2,186,123. By contrast, the vast majority of the cases in which promissory notes have been found to constitute payment at face value (including
Secondly, NUPCO had neither the ready cash to pay the notes, nor sufficient accounts receivable to liquidate in order to raise the amount needed. In fact, NUPCO experienced a cash flow problem during this period.
Third, we believe NUPCO could not have obtained conventional financing to borrow funds necessary to pay these obligations. Compare
Petitioners point to the loans made to purchase the planes in 1973 and 1974 and to the foundry purchased in 1974, at least in part on the strength of NUPCO's credit, as evidence of its borrowing power. While these loans indicate some borrowing power in NUPCO, they were all secured by the valuable property purchased. Further, the creditors required the subordination of NUPCO's indebtedness to Bowman to their loans. It appears doubtful from this whether conventional lenders would loan money to pay these very debts which were required to be subordinated. We also note that the loan to purchase the foundry was made to another corporate entity, and that the*52 foundry had sources of income other than from production of the patented manhole casting, since the foundry produced items for several other companies in addition to NUPCO.
But although these factors establish the notes' fair market value at less than face value, they do not establish the notes as entirely worthless when issued. Several facts indicate that the notes possessed considerable value.
During this period NUPCO had a substantial excess of cash and accounts receivable over accounts payable:
| 1970 | 1971 | 1972 | |
| cash | $32,340 | $67,256 | $130,545 |
| acc. rec. | 70,976 | 87,136 | 162,843 |
| acc. pay. | 36,260 | 37,097 | 36,882 |
Furthermore, its cash flow problems were apparently generated by its increased sales which nearly doubled during this period. Thus it did have substantial liquid reesources to satisfy at least part of its liability.
While payment of the notes remained in part dependent upon the success of the business, there were substantial reasons for a potential purchaser of these notes to accept such risks. The patent represented a significant technological innovation which saved both time and money over previous methods. It had no competitors*53 when the notes were issued. Total sales, cash, and accounts receivable increased dramatically during this period, and with the decision of New York City in 1970 to engage in a substantial resurfacing program using NUPCO's patented products, NUPCO was assured of a large urban market for its product. Expanded sales also meant that the unpaid patent sales price (upon which interest accrued) would be reduced at an accelerated rate. This would decrease future interest payments and improve cash flow. The note paid 6 percent interest and was a cognovit note which gave the holder the power to obtain a judgment lien at will to protect his interest.NUPCO had few nonshareholder debts and was accumulating a growing body of fixed depreciable assets.
We also note that NUPCO paid the entire amount of the 1971 note and a substantial portion of the 1972 note by the end of 1975. "Although that fact was not available in determining the fair market value of the notes when they were received, we think [subsequent payments on the notes], when properly discounted in the light of the other evidence, tends to afford some criterion concerning the fair market value of the notes in question."
Thus, we believe that a creditor would be willing to accept these notes at a substantial discount reflecting the risk involved. Considering the foregoing and also respondent's burden of proof, we believe that a reasonable discount would amount to forty percent of the notes' face value.
Respondent's adamant insistence upon the notes' worthlessness rests principally upon the conclusion that Bowman could not have received their full face value on the day of issuance. But respondent's regulation plainly states that "interest * * * shall be considered as paid for purposes of
Petitioners' opposite, but equally adamant position relies primarily upon the Bowmans' inclusion of the face value of the cognovit notes in their taxable income for the years in which they received them. This reliance ignores the fact that
Issue 4.
The final issue is whether the Bowmans are liable for a 5 percent addition to tax under
Decisions will be entered under Rule 155.
Footnotes
1. All section references are to the Internal Revenue Code of 1954, as amended and in effect for the years in issue, unless otherwise noted. ↩
2. Petitioner National Utility Products Company will hereinafter be referred to as NUPCO.
These cases were consolidated because petitioner Harold M. Bowman was the sole shareholder in NUPCO during the years in issue and the issues in both cases arise from the same set of facts. ↩
3. Ann T. Bowman is a party solely because she filed joint returns with her husband. Harold M. Bowman will hereinafter be referred to as Bowman.↩
4. Of the previous cases involving patent assignments, only
McCullough Tool Co. v. Commissioner,33 T.C. 743">33 T.C. 743 (1960), affd.318 F.2d 790">318 F.2d 790 (9th Cir. 1963), andFerris v. Commissioner,T.C. Memo 1968-192">T.C. Memo 1968-192 , involved the issue of whether the assignments in question were for fixed or contingent amounts. Our conclusions in those cases were based upon circumstances and contractual terms significantly different from those present herein.Further, both parties have cited numerous cases involving the question of whether references to another document make a promissory note nonnegotiable. See
Uniform Commercial Code, secs. 3-104 ,3-105 and note 5 infra.↩ While somewhat analogous, these cases are distinguishable on the facts involved and language used, and they also present significantly different policy questions involving negotiable instrument law. The question before us here is strictly one of contractual interpretation.5. In so holding, we reject petitioners' apparent contention that the promissory note by itself establishes NUPCO's fixed dollar liability. The promissory note states that payment is governed by another instrument, the patent assignment, and is therefore not negotiable under
Ohio Rev. Code Ann., sec. 1303.04 (Page 1962). See Official Comment 8 toUniform Commercial Code, sec. 3-105 . But even if it were negotiable, as between NUPCO and Bowman the patent assignment would still be effective to create rights and liabilities between the parties independent of the promissory note. SeeOhio Rev. Code Ann., sec. 1303.18 (Page 1962);Uniform Commercial Code, sec. 3-119↩ .6. In his reply brief respondent does complain that the valuation underlying the $7.8 million sale price failed to determine the present value of the patent's future earnings through Haskold's formula. See generally the description in
Royal Mineral Assn. v. Commissioner,5 B.T.A. 1126">5 B.T.A. 1126 (1927), and Bonbright, Valuation of Property, 256 n. 25 (1937), and its application to patents inSt. Louis Screw Co. v. Commissioner,2 B.T.A. 649">2 B.T.A. 649↩ (1925). But as we noted, respondent has not on the record before us been concerned with value as an issue, but whether or not the consideration for the sale amounted to a fixed or contingent amount.7. See
F.D. Bissett & Son, Inc. v. Commissioner,56 T.C. 453">56 T.C. 453 , 460↩ (1971), and cases cited therein.