*249 Decision will be entered under Rule 50.
Petitioner was controlled by an individual, Hugh Smith, until after Smith's death and thereafter by his estate. Smith owned, controlled, and operated certain companies engaged in the business of bottling the finished product of Coca-Cola for sale, and after his death those companies were owned, controlled, and operated by his estate. On September 3, 1931, petitioner entered into a contract with Coca-Cola Bottling Works (Thomas) Inc., by which petitioner was granted the exclusive right and license to "use and vend on bottled Coca-Cola the trade mark name Coca-Cola, and all labels and designs pertaining thereto." Thomas, Inc., was to furnish petitioner all syrup used by petitioner and as consideration for such right and syrup petitioner was to pay Thomas, Inc., an amount measured by $ 1.30 per gallon for all gallonage of syrup used by petitioner. On September 3, 1931, petitioner transferred to Smith all its rights under its contract with Thomas, Inc., and agreed to furnish Smith all syrup required by him. Smith agreed to pay petitioner as consideration for such transfer and furnishing of syrup an amount measured by $ 1.50 per gallon*250 for all syrup used by him. Smith used certain gallonage of syrup during certain of the taxable years until his death and thereafter in certain of the taxable years his estate also used certain gallonage. Held, that the allocation by respondent of income to petitioner of 20 cents per gallon for all gallonage of syrup used by Smith was proper under section 45 of the applicable statutes.
2. During all of the taxable years more than 50 per centum in value of petitioner's outstanding stock was owned by not more than five individuals. It is not shown by the record that less than 80 per cent of its income was derived from its use of "the trade mark name Coca-Cola and all labels and designs pertaining thereto." Held, that petitioner must be treated during all the taxable years as a personal holding company and that the income allocated to it herein is taxable to petitioner as royalties within the meaning of the applicable statutes; held, further, that petitioner is entitled to certain dividends credits and not entitled to certain other claimed dividends credits.
3. Held, that petitioner is not subject to penalty for failure to file personal holding company returns.
*661 The respondent determined*253 deficiencies in taxes and penalties as follows:
| Personal | |||||
| Declared | holding | ||||
| Year | Income tax | Excess | value excess | company | 25% penalty |
| profits tax | profits tax | surtax | |||
| 1934 | $ 2,501.18 | $ 625.30 | |||
| 1935 | 2,557.36 | 639.34 | |||
| 1936 | 1,528.14 | 382.04 | |||
| 1937 | $ 3,229.47 | $ 1,574.64 | 10,136.76 | 2,534.19 | |
| 1938 | 1,796.29 | 1,513.96 | 9,824.75 | 2,456.19 | |
| 1939 | 2,041.60 | 1,678.88 | 11,138.94 | 2,784.74 | |
| 1940 | 2,625.55 | $ 1,996.45 | 13,320.22 | 3,330.06 | |
| 1941 | 1,272.31 | 16,929.99 | 4,232.50 | ||
| 1942, Jan. 1 to | |||||
| May 31 | 158.49 | 5,000.81 | 1,250.20 |
The issues to be determined are: (1) Whether the respondent erred in increasing petitioner's reported "royalty" income under section 45, of the Internal Revenue Code and similar prior statutes to equal 20 cents per gallon of Coca-Cola syrup purchased and used by its principal stockholder during each year, (2) whether petitioner was a personal holding company, and, if so, whether it is entitled to dividends *662 paid credits, and (3) whether petitioner is subject to a penalty for each taxable year for failure to file personal holding company returns.
FINDINGS OF FACT.
The petitioner was a Tennessee corporation. *254 It filed its income tax returns with the collector for the district of Tennessee from its organization July 17, 1931, to the date of its dissolution on May 30, 1942. It never filed a personal holding company tax return.
On October 12, 1931, 60 shares of petitioner were issued in units of 5 shares as follows: 45 shares to Hugh Smith, 10 shares to Laura Smith, his wife, and 5 shares to Kate Flake, secretary and bookkeeper of Hugh Smith. Hugh Smith paid for these 60 shares by turning over to petitioner a Packard automobile valued at $ 5,100, a Chevrolet automobile valued at $ 700, and cash of $ 200, or a total of $ 6,000. On October 30, 1935, Hugh Smith surrendered a certificate for 5 shares, and, in lieu thereof, a certificate for 5 shares was issued to Pete Pitzer, an employee of Hugh Smith. On March 27, 1937, Hugh Smith surrendered another certificate for 5 shares and, in lieu thereof, a certificate for 5 shares was issued to R. E. Sanford, an employee of Hugh Smith. No other stock was issued by petitioner.
Prior to September, 3, 1931, Hugh Smith, as an individual, had operated for many years a Coca-Cola bottling business at Union City, Dyersburg, and Martin, Tennessee, and *255 at Fulton and Hickman, Kentucky, under a contract between him and Coca-Cola Bottling Works (Thomas), Inc. (hereinafter referred to as Thomas, Inc.), of Chattanooga, Tennessee, which had a contract with the parent Coca-Cola Co. granting it exclusive rights and privileges in regard to the bottling and selling of Coca-Cola in certain states, including Kentucky and Tennessee, which rights and privileges it was permitted to assign to others within its prescribed territory. Thomas, Inc., was known as a "parent bottler under the Coca-Cola Company."
Coca-Cola Co. advised Smith in 1931 that in the opinion of its legal department his right to bottle Coca-Cola under his contract with Thomas, Inc., was personal to him, ending with his death, and there was no legal obligation upon Thomas, Inc., to reissue such rights to his heirs or beneficiaries, and suggested that he form a corporation, surrender his contract to Thomas, Inc., and have that company reissue new rights to such corporation. Accordingly, in July 1931 Smith caused the incorporation of petitioner under the laws of Tennessee, for the purposes of acquiring the right from Thomas, Inc., so that it might be "perpetuated" indefinitely and*256 thus afford Smith the power to give his heirs and beneficiaries the benefit of such right. It was not contemplated by Smith that the corporation would engage in the Coca-Cola bottling business.
*663 On September 3, 1931, Thomas, Inc., as first party, and petitioner, by its president, Hugh Smith, as second party, entered into a "Bottlers Contract (First Line)," in which Thomas, Inc., transferred to petitioner "the sole and exclusive right and license that it received by approved transfer from the Coca-Cola Company to use and vend on bottled Coca-Cola the trade mark name Coca-Cola, and all labels and designs pertaining thereto, in connection with the product 'Bottled Coca-Cola' in the territory," described as follows:
In the Cities of Union City and Martin, Tennessee; Fulton and Hickman, Kentucky, and at all points in Lake, Weakley and Obion Counties, Tennessee; and all points in Dyer County, Tennessee lying north of the Obion River, points within fifty (50) miles of Jackson, Tennessee, being excepted.
Also, all points in Fulton, Hickman and Carlisle Counties, Kentucky, except the town of Bardwell, lying south of a direct line drawn due east and west across Carlisle County, Kentucky, *257 from Laketown, Kentucky, to the Graves County, Kentucky, line.
Thomas also agreed to "obtain and furnish" petitioner "sufficient syrup for bottling purposes to meet the requirements" of petitioner in the territory above described, provided Thomas "can obtain the delivery to it of such syrup from the Coca-Cola Company under the contract existing between" Thomas and the Coca-Cola Co. In consideration of the transfer petitioner, among other things, agreed "to buy of or through" Thomas, Inc., all the Coca-Cola syrup required or used by it in the preparation for market of its bottled goods and to pay for such syrup $ 1.30 per gallon delivered to any point in the above described territory where a plant might be established. The consent of Coca-Cola Co. to the contract was endorsed thereon, with the proviso that the contract between the Coca-Cola Co. and Thomas, Inc., would not thereby be altered or changed. On the same date petitioner, by Hugh Smith, its president, as first party, entered into a "Subbottler's Contract" with Hugh Smith, an individual, trading as Union City Coca-Cola Bottling Co., Fulton Coca-Cola Bottling Co., Martin Coca-Cola Bottling Co., and Hickman Coca-Cola Bottling*258 Co., as second party, whereby petitioner transferred to Hugh Smith "the sole and exclusive right and license that it received from the Coca-Cola Bottling Works (Thomas), Inc., of Chattanooga, Tennessee, to use and vend on bottled Coca-Cola the trade-mark name Coca-Cola, and all labels and designs pertaining thereto, in connection with the product, 'Bottled Coca-Cola' in the territory" as described in the contract between petitioner and Thomas, Inc. Petitioner also agreed "to obtain and furnish" Hugh Smith "sufficient syrup for bottling purposes to meet the requirements" of Hugh Smith in the prescribed territory. In consideration of that transfer Hugh Smith, among other things, agreed "to buy of or through" petitioner all the Coca-Cola *664 syrup required or used by him in marketing bottled Coca-Cola and to pay for such syrup on the following scale of prices: "$ 1.50 per gallon delivered to any point in above described territory where a bottling plant is established by party of the second part."
Thomas, Inc., and Coca-Cola Co. approved and consented to this contract, with the proviso that the contracts between petitioner and Thomas, Inc., and between Thomas, Inc., and the Coca-Cola*259 Co. were not thereby altered or modified. The contract between Thomas, Inc., and petitioner and the contract between petitioner and Smith were prepared by the secretary of Thomas, Inc., on standard forms used by the latter company. The contract between Smith and Thomas, Inc., was canceled.
A similar contract was made between petitioner and Hugh Smith as owner and operator of the Dyer Coca-Cola Bottling Works of Dyersburg, Tennessee. These five contracts remained in full force and effect until the dissolution of petitioner on May 30, 1942, at which time such contracts were canceled.
Hugh Smith managed and controlled the five bottling companies and petitioner until his death on August 25, 1940. After his death and until the dissolution of petitioner on May 30, 1942, the five bottling companies and petitioner were managed by the First National Bank of Memphis, Tennessee, executor and trustee under the will of Smith.
The petitioner had no office of its own, it owned no office furniture, its name was in no telephone or city directory, or on any office door or window, and it had no employees. Its books, located in the office of the Union City bottling plant, were kept by Kate Flake, *260 an employee of Smith, under his direction. Its address was Union City, Tennessee.
Thomas, Inc., did not have a warehouse for the storage of Coca-Cola syrup for shipment in its territory. All syrup coming into the territory controlled by Thomas, Inc., was shipped by Coca-Cola Co. from one of its various manufacturing plants to the subbottlers, such as were Smith's companies, who actually bottled the product, and who, for the purpose of saving time and expense, were authorized to place their orders for syrup direct with the Coca-Cola Co. The orders so placed were considered as being given through Thomas, Inc. All payments for the syrup were made to Thomas, Inc. Whether or not the first-line bottler, as petitioner was designated, or the subbottlers, as Hugh Smith and his bottling companies were designated, paid Thomas, Inc., for the syrup depended upon the arrangements of the subbottler with the first-line bottler from whom it had received the right to bottle and sell the product. Thomas, Inc., did not insist upon payment from the first-line bottler. No party could bottle Coca-Cola for use in the territory controlled by Thomas, Inc., without executing a carefully drawn written*261 contract, because Thomas, Inc., had the "responsibility of protecting the products and the business" in that territory.
*665 After the execution of his contract with petitioner, Smith continued, as he had done prior to the organization of petitioner, to order syrup used by him in his various bottling plants from the parent Coca-Cola Co. and to make payment thereon to Thomas, Inc., of $ 1.30 a gallon. He never ordered syrup from petitioner and petitioner never directly placed an order with Thomas, Inc., or the Coca-Cola Co. and never directly paid either of them for any syrup shipped to the bottling plants of Smith.
At the date of death of Smith on August 25, 1940, petitioner's assets consisted of a cash balance of $ 49.33, a Packard automobile, a Pontiac automobile, and its contracts with Thomas, Inc., and Smith. For Federal and state tax purposes the value of each share of petitioner's stock at the date of death of Smith was fixed at $ 10,491.56.
On May 30, 1942, at the time of the dissolution of petitioner, its assets consisted of $ 649.33 cash, a Packard automobile which was subsequently sold to Laura Smith, widow of Hugh Smith, for $ 1,275, and its contracts with Thomas, *262 Inc., and Smith. Such assets were distributed to petitioner's stockholders in proportion to their respective stock interests, and its liabilities were assumed in equal proportion by the stockholders.
The petitioner never declared a dividend and made no distribution purporting to be such to its stockholders.
An internal revenue agent, upon examination of the books and records of petitioner, made a report on petitioner's income tax return for 1934 and found a deficiency of $ 121.17 and a net income of $ 927.79, which adjustments were due to the disallowance of excessive depreciation on automobiles, which was agreed to by petitioner. In that report it was stated: "Its only income is the royalties from his (Smith's) individual plant locations." There was no other investigation made, except that resulting in the deficiencies herein. No suggestion of the imposition of a personal holding company tax was made in the report.
In each of its income tax returns for the years involved petitioner reported "royalty" income, which it had received from Hugh Smith and after his death from his executors, and net income or loss, as follows:
| Year | Royalty | Net income |
| or (loss) | ||
| 1931 | $ 1,840.20 | |
| 1932 | 3,655.90 | ($ 3,531.73) |
| 1933 | 3,950.00 | (1,343.49) |
| 1934 | 5,304.70 | 105.70 |
| 1935 | 2,986.00 | (1,931.16) |
| 1936 | 4,149.00 | (717.28) |
| 1937 | $ 3,579.35 | ($ 3,304.74) |
| 1938 | 3,447.60 | (416.43) |
| 1939 | 1,655.38 | (146.57) |
| 1940 | 70.93 | (448.65) |
| 1941 | 21,030.00 | 15,324.59 |
| 1942, Jan. 1 to May 31 | 6,118.60 | 5,531.56 |
*263 No other income was reported. In its 1932 and 1933 income tax returns the answer to the question "State the main business engaged in, *666 also whether acting as principal or as agent on commission; state if inactive or in liquidation:" was "Collecting Syrup Royalties on Contracts." In each of the returns for 1932 to 1939, inclusive, the answer to the question on the face of the return, "Kind of Business," was "Commission." The answer to the question in the 1938 and 1939 income tax, "Business classification," was "Royalties." All receipts and disbursements of petitioner until the death of Hugh Smith were entered in two bank passbooks, one covering the period from December 18, 1931, to the end of 1934, and the other beginning April 4, 1934. The deposits shown in these passbooks for each year correspond with the income reported as royalty income by petitioner in its income tax returns for 1931 to 1940, inclusive. The amounts of the disbursements entered in such passbook correspond with the amounts shown on the check book stubs. The disbursements included salaries paid to Hugh Smith or his wife as follows:
| Year | Hugh Smith | Laura Smith |
| 1931 | $ 1,640.20 | |
| 1932 | 3,000.00 | |
| 1933 | 3,000.00 | |
| 1934 | 3,000.00 | |
| 1935 | 3,000.00 | |
| 1936 | $ 3,408.75 | |
| 1937 | 3,000.00 | |
| 1938 | 3,000.00 | |
| 1939 | 1,000.00 |
*264 The disbursements also included payments on new automobiles, repairs, license fees, taxes, and insurance premiums on automobiles, state fees, income and capital stock taxes, and city, county, and state taxes.
The number of gallons of Coca-Cola syrup used by Hugh Smith for the years 1934 to May 30, 1942, was as follows:
| Year | Gallons |
| 1934 | 53,565 |
| 1935 | 53,921 |
| 1936 | 63,126 |
| 1937 | 71,587 |
| 1938 | 68,952 |
| 1939 | 77,476 |
| 1940 | 83,509 |
| 1941 | 104,985 |
| 1942, Jan. 1 to May 30 | 30,593 |
In determining petitioner's taxable income each year the respondent allocated so much of the gross income of Hugh Smith individually as was necessary to make petitioner's "royalty" income equal to 20 cents per gallon on Coca-Cola syrup used by Smith. This action was taken by respondent, as stated in his explanation of adjustments, under the authority of section 45 of the code and corresponding provisions of prior applicable acts. The amounts so added to petitioner's income are as follows:
| Additional | |
| income to | |
| Year | petitioner |
| 1934 | $ 5,408.30 |
| 1935 | 8,198.20 |
| 1936 | 8,476.20 |
| 1937 | 10,738.05 |
| 1938 | $ 10,342.80 |
| 1939 | 13,839.82 |
| 1940 | 16,630.87 |
| 1941 | (33.00) |
*667 Petitioner's balance sheet as*265 of January 1, 1934, as shown in its income and excess profits tax return for 1934, is as follows:
| Assets | Liabilities | |||
| Automobiles | $ 5,376.83 | Accounts payable | $ 4,252.05 | |
| Capital stock | $ 6,000.00 | |||
| Deficit | 4,875.22 | |||
| Undivided profits | 1,124.78 | |||
| Total | 5,376.83 | Total | 5,376.83 |
The net income taxable under section 13 of the various applicable statutes and the statutory personal holding company income as determined by the respondent for the taxable years are as follows:
| Personal | ||
| Year | Net income | holding |
| company | ||
| income | ||
| 1934 | $ 10,421.56 | $ 8,337.25 |
| 1935 | 10,660.00 | 8,524.54 |
| 1936 | 12,122.13 | 9,600.77 |
| 1937 | 13,782.35 | 13,782.35 |
| 1938 | 13,366.33 | 13,366.33 |
| 1939 | $ 15,118.58 | $ 15,118.58 |
| 1940 | 16,412.38 | 16,412.38 |
| 1941 | 20,787.87 | 20,787.87 |
| 1942, Jan. 1 to May 31 | 6,118.60 | 6,118.60 |
In determining the petitioner's taxable net income the respondent disallowed the deductions claimed in 1934 to 1939, inclusive, for salary paid to Smith or his wife and also disallowed claimed deductions as follows:
| Year | Depreciation | Operating | Taxes | Auto |
| expenses | repairs | |||
| 1934 | $ 1,562.59 | $ 344.97 | ||
| 1935 | 925.00 | 467.96 | ||
| 1936 | 787.64 | 166.82 | ||
| 1937 | 3,189.24 | $ 159.80 | ||
| 1938 | 410.33 | 29.63 | ||
| 1939 | 410.33 | 15.00 | ||
| 1940 | 230.16 | |||
| 1941 | (57.13) | $ 320.00 | ||
| 1942 | 111.25 |
*266 The petitioner is entitled to deduct from its gross income for the years 1934 and 1935, as determined herein, the amounts of $ 618.08 and $ 766.58, respectively.
The respondent in computing statutory personal holding company income for the purpose of personal holding company taxes did not allow any dividends paid credit.
OPINION.
The respondent increased petitioner's reported "royalty" income for the years 1934 to 1940, inclusive, and reduced its reported "royalty" income for 1941, so that the "royalty" income each *668 year equaled 20 cents per gallon on all Coca-Cola syrup used in such year in his personally owned Coca-Cola bottling works by Hugh Smith, who originally owned 45 shares, and later 35 shares, of the outstanding 60 shares of petitioner. These adjustments were made under authority of section 45 of the Revenue Acts of 1934, 1936, and 1938 and the Internal Revenue Code, 1 "in order to clearly reflect your income." Respondent also increased petitioner's reported net income for various of the taxable years by disallowing claimed deductions for salaries to Hugh Smith or his wife, excessive depreciation on automobiles, certain operating expenses, taxes, and auto repairs. *267 Petitioner concedes the correctness of all such adjustments to its income, except the increase in "royalty" income.
On the first issue, there can be no doubt that petitioner was controlled, within the meaning of section 45, supra, by Smith until his death and thereafter by his estate, as were also, of course, Smith's individually owned plants, and no contention to the contrary *268 is made by petitioner. On this issue, however, petitioner contends that section 45 is not applicable, for the principal reason that it "did not operate under the contract" with Thomas, Inc., or its contract with Hugh Smith, the individual, and, therefore, "did not earn the income attributed to it." Petitioner's contention that it "did not operate under its contract with Thomas" seems to be predicated upon the facts (1) that Smith, as an individual, ordered the syrup used by his plants directly from the parent Coca-Cola company and received delivery thereof from that company rather than from petitioner; (2) that Smith, individually, paid Thomas, Inc., $ 1.30 per gallon for the syrup so used and did not pay petitioner therefor; and (3) that, as asserted by petitioner, it did not actually buy and sell syrup. From these facts petitioner would have us conclude that the income here involved was not derived under the contract between itself and Smith and that, consequently, it was not entitled to and did not receive as income the 20 cents per gallon on the syrup used by Smith's individual companies as provided by that contract.
We do not think the facts recited, or any other shown by the*269 record, sustain the contention of the petitioner, that it did not operate under its contract with Smith. In order to save time and expense in performing its contract each subbottler, such as was Smith, had authority to order syrup direct from the parent Coca-Cola company and to *669 receive delivery from that company. The time and expense saved in the ordering of the syrup by Smith direct from the parent Coca-Cola company rather than from petitioner and the direct shipments of syrup on such orders by the Coca-Cola company to Smith's individually owned companies was obviously the time which would have been consumed and the expense which would have been incurred by sending the orders for syrup from the subbottler (Smith's plants) to the first line bottler (petitioner), then to Thomas, Inc., then to the parent Coca-Cola company, and then, in making shipments, in the reverse order down the line. Under these circumstances we think that this agreed deviation from the strict terms of the contract between petitioner and Smith is immaterial and does not support the contention of petitioner that the transactions were not had under the contract between petitioner and Smith.
As to the*270 payments of $ 1.30 per gallon for the syrup being made direct by Smith to Thomas, Inc., it was dependent upon the method of payment arranged between the subbottler (Smith) and the first line bottler (petitioner) and it was immaterial to Thomas, Inc., from whom it received payment. The performance and enforcement of the contract between petitioner and Smith were in the hands of the latter, since he controlled petitioner and his own bottling plants. It was Smith who determined both for himself individually and for petitioner the method by which his contract with petitioner was to be performed, and his payment of $ 1.30 per gallon for such syrup to Thomas, Inc. (thus relieving petitioner from making such payment), instead of paying direct to petitioner, was also an immaterial deviation from the express terms of the contract providing for payment direct to petitioner; the more especially so since the deviation was obviously because of an arrangement between petitioner, controlled by Smith, and Smith individually in the performance of their contract. We think that this deviation does not in any wise support the contention of petitioner, that the transactions were not had under the contract*271 between petitioner and Smith.
Furthermore, as to the contention that petitioner did not operate under its contract with Smith and consequently did not earn the income attributed to it (20 cents for all gallonage used by Smith), it seems that the income it did actually report in its returns must be regarded as having been received on the basis of 20 cents per gallon on some of the gallonage used by Smith, and consequently received through operation under its contract with him, because: The sole purpose of petitioner's existence was to acquire the rights, as it did, from Thomas, Inc., which rights it could not itself exercise after contemporaneous transfer of same to Smith; no party could bottle to sell Coca-Cola in the territory controlled by Thomas, Inc., without a carefully *670 drawn written contract permitting it to do so under the terms and conditions prescribed by such contract and there is no other written contract shown in the record except the contract in question; a comparison of petitioner's income reported in its returns as royalties with the amounts of syrup used by Smith's individual companies in 1941 and for the period from January 1 to May 30, 1942, shows (a) that*272 Smith's companies used 104,985 gallons of syrup in 1941 while for that year petitioner reported $ 21,030 as income from "royalties," that income slightly exceeding 20 cents per gallon on gallonage of syrup used by Smith's companies during that year and by which excess respondent reduced petitioner's income for that year, and (b) that Smith's companies used 30,593 gallons of syrup for the period January 1 to May 30, 1942, while petitioner reported for the same period $ 6,118.60 as "royalty" income, which income was identically 20 cents per gallon on gallonage of syrup used by Smith's companies during the same period -- and it is significant that the returns for the two mentioned periods were made after Smith's death (when his power to allocate income between petitioner and his companies ceased) by the executor of his estate, who thus obviously regarded the total profits of petitioner for those periods to have been received by petitioner under its contract with Smith, and at the rate of 20 cents per gallon on all gallonage used by Smith as a result of carrying out that contract.
Moreover, it may be further observed with regard to this contention that there is nothing in the record indicating*273 that the amounts reported by petitioner in its returns were received from any source other than from petitioner's operation under its contract with Smith.
We think that petitioner bought and sold the syrup here involved under its contract with Smith; and if it did not, it nevertheless carried out its obligation under the contract to "obtain and furnish" the syrup to Smith.
In view of our conclusion that the operations of petitioner were performed under its contract with Smith, we have left on the first issue merely the question of whether the income involved, of 20 cents per gallon on all syrup used by Smith's individually owned companies, was properly allocated to petitioner under that contract.
Under petitioner's contract with Thomas, Inc., petitioner acquired the exclusive right and license to purchase syrup and "to use and vend on bottled Coca-Cola the trade-mark name Coca-Cola, and all labels and designs pertaining thereto" in a designated territory for an amount measured by $ 1.30 per gallon of syrup. Under petitioner's contract with Smith the latter acquired the same rights as petitioner had acquired from Thomas, Inc., and as a consideration therefor Smith agreed to pay petitioner*274 an amount measured by $ 1.50 per gallon of syrup used by Smith. Thus petitioner was to receive income, *671 or profit, measured by 20 cents per gallon on all syrup used by Smith; and this without the rendition of any services by petitioner except to see that delivery of the syrup was made to Smith upon his purchases. Under the contract between Smith and petitioner, Smith used the gallonage in the various years as set out in our findings and included in his returns for each year the income realized by him through his individually owned companies from such use. The respondent in determining the deficiencies herein for each taxable year allocated as gross income to petitioner from Smith's reported income for such year an amount equal to 20 cents per gallon on all Coca-Cola used by Smith in such year; and it is the correctness of such allocation which is here involved.
We are of the opinion, and so hold, that these allocations are correct to the extent of 20 cents per gallon on the total gallonage shown in our findings to have been used by Smith each year; but it is to be understood that such allocations constitute the entire gross income of petitioner and are not to be added *275 to that reported in its returns. When this income from use of this gallonage was reported in Smith's returns it was not Smith's income, but that of petitioner, to which it was entitled under the plain terms of its contract with Smith. It was Smith, having the income in hand, who made this allocation between himself as an individual and the petitioner, his controlled corporation. He merely allocated the income of petitioner to himself rather than to petitioner as he should have done.
Under these circumstances the fact that petitioner did not actually receive from Smith all the amounts to which it was entitled does not prevent the applicability of section 45. That section expressly permits the apportionment, allocation, or distribution of income between two or more businesses owned or controlled directly or indirectly by the same interests. To allocate or distribute income between or among two or more businesses presupposes the receipt of such income by one of the group, or by some of the group in incorrect proportions for tax purposes. To hold that income may not be allocated to a member of a group within the statute because it had not actually received such income, would nullify*276 the purpose for which section 45 was intended, i. e., to prevent the evasion of taxes or clearly to reflect the income of any such organizations, trades, or businesses as were owned or controlled by the same interests.
The authorities cited by petitioner as to the nonapplicability of section 45, including Tennessee- Arkansas Gravel Co. v. Commissioner, 112 Fed. (2d) 508; Seminole Flavor Co., 4 T. C. 1215; Essex Broadcasters, Inc., 2 T. C. 523; Koppers Co., 2 T. C. 152; and Briggs-Killian Co., 40 B. T. A. 895, are so inapposite on their facts as to require no distinction.
*672 The second issue presents the question of whether or not the petitioner is a personal holding company under section 351 of the Revenue Act of 1934 and corresponding sections of the Revenue Acts of 1936, 1937, 1938, and the Internal Revenue Code.
The definition of a personal holding company is found in section 351 (b) (1) of the Revenue Act of 1934. 2*278 It laid down two tests, viz., stock ownership and certain classes of gross income. The stock ownership*277 requirement remained the same in later acts as in the 1934 Act. The gross income requirement was changed somewhat in the 1937 Revenue Act, section 352 (a) (1). 3 The 1937 Act also added new classes of gross income, including compensation received for the use of corporation property by a shareholder, section 353 (f). 4
*279 Hugh Smith, from March 1937 until the date of his death August 25, 1940, owned 35 shares of the outstanding 60 shares of petitioner, or 58.33 per centum of petitioner's outstanding shares. Thereafter, his *673 estate continued to own the same number of shares. The remaining 25 shares were held by four persons including Smith's wife, who held 10 shares. Thus the statutory stock ownership requirement of 50 per centum in value of the corporation's outstanding stock by or for not more than five individuals during all the taxable years is met.
It is argued by petitioner that the income as determined by respondent is not income in the nature of royalties, as contended by respondent, but, rather, represents profits from the purchase of merchandise (Coca-Cola syrup) at $ 1.30 a gallon and its resale at $ 1.50 a gallon. This argument is inconsistent with a contention it makes that petitioner never operated and never purchased a gallon of syrup at any time during its existence.
The term "royalties" is not defined in the statutes. Regulations 86 and 94, article 351-2, under the Revenue Acts of 1934 and 1936, defines the term as follows:
The term "royalties" includes amounts received*280 for the use of or for the privilege of using patents, copyrights, secret processes and formulas, good will, trade marks, trade brands, franchises, and other like property. * * *
In Ways and Means Committee Report No. 1546, 75th Cong., 1st sess., pertaining to the Revenue Bill of 1937, p. 4, it is stated:
"Royalties" as used herein has the same meaning as in the case of royalties referred to in section 351 of the existing law, and, therefore, includes income from copyrights.
This indicates approval by Congress of the definition of royalties contained in the regulations, as does also the reenactment by Congress of later practically identical acts as to royalties.
Thomas, Inc., transferred to petitioner "the sole and exclusive rights and license * * * to use and vend on bottled Coca-Cola the trade mark name Coca-Cola, and all labels and designs pertaining thereto, in connection with the product 'Bottled Coca-Cola'" in specified territory. This was a very valuable right. Thomas, Inc., had a similar contract from the Coca-Cola Co. covering, however, a larger territory.
In Puritan Mills, 43 B. T. A. 191, we held that payments to a taxpayer corporation *281 by another corporation for the use of the taxpayer's name on bags containing flour and feeds blended, put up, and sold for its own account by the other corporation constituted payments of "royalties" under section 351 (b) (1) of the Revenue Acts of 1934 and 1936 and that consequently the taxpayer was a "personal holding company" as far as the requirement of those sections as to income being from royalties was concerned. We see no difference between the character of the payments which we have, in effect, held under the first issue to have been made to petitioner and the payments made in Puritan Mills, except that there the payments were solely for the use of a trade-mark, while here the payments were made for the right to *674 use "the trade mark name Coca-Cola, and all labels and designs pertaining thereto," as well as for the purchase price of syrup used by Smith in making the final product of Coca-Cola. In view of the fact that, undoubtedly, a portion, and probably the larger portion, of the payments was attributable to the right to the use of "the trade mark name Coca-Cola, and all labels and designs pertaining thereto," which was a very valuable right, and in view of*282 the further fact that the record is devoid of any showing as to the portion of the payments attributable, respectively, to the purchase price of the syrup and the right to use the trade-mark name Coca-Cola, etc., we are unable to determine what portion of the payments is attributable to the one or the other. Lane-Wells Co., 43 B. T. A. 463; affirmed on this point, 134 Fed. (2d) 977. In these circumstances, we are of the opinion that the income which we have held under the first issue to have been properly allocated to petitioner must also be held, for Federal income tax purposes, to be income of the petitioner from "royalties" within the purview of section 351 (b) (1), supra; Puritan Mills, supra;Lane-Wells Co., 134 Fed. (2d) 977; and Commissioner v. Affiliated Enterprises, Inc., 123 Fed. (2d) 665; certiorari denied, 315 U.S. 812">315 U.S. 812.
It is also argued by petitioner that the income which we have held on the first issue to have been received by it was not royalties, because they were not "proportionately to the*283 use made of the right by the grantee" (Lane-Wells Co., supra), and it points to the gallons of syrup used by Smith in the years 1934 to 1940, inclusive, and the amounts paid to petitioner by Smith, as shown on petitioner's income tax returns. Such argument becomes of no moment in view of our conclusion on the first issue.
The cases, among which are Kiesau Petroleum Corporation, 42 B. T. A. 69; and U. S. Universal Joints Co., 46 B. T. A. 111, cited by petitioner in support of its contention that the income involved was not from "royalties," are so clearly distinguishable on their facts as to require no further comment.
In computing the statutory personal holding company income of petitioner subject to surtax, the respondent did not allow any credits or deductions from "adjusted net income" for dividends paid during any of the taxable years.
Section 351 (a) of the Revenue Act of 1934, as did all succeeding statutes applicable here, imposes a surtax on a personal holding company's "undistributed adjusted net income." Section 351 (b) (2) (C) of that act defined the term "undistributed net income" as "the adjusted net income*284 minus * * * dividends paid during the taxable year," which definition obtained throughout the years 1934 and 1935. Section 351 (b) (2) (C) of the Revenue Act of 1936 defined "undistributed adjusted net income" as "the adjusted net income minus *675 * * * the amount of the dividends paid credit provided in section 27 * * *." Section 27 (a) provides that the "dividends paid credit shall be the amount of the dividends paid during the taxable year," but subdivision (g) of that section provides that "no dividends paid credit shall be allowed with respect to any distribution unless the distribution is pro rata, equal in amount and with no preference to any share of stock as compared with other shares of the same class."
Provisions similar in effect to those set out above as provisions of sections 351 and 27 of the 1936 Act obtained in all subsequent years here involved. Sec. 1, Revenue Act of 1937, amending sec. 351, Revenue Act of 1936; secs. 405 and 27, Revenue Act of 1938; and secs. 504 and 27, Internal Revenue Code.
Should the respondent, in computing the personal holding company income of petitioner, have allowed any credits or deductions as provided by the cited statutes?
*285 On the first issue, we have decided that there should be included in petitioner's income in each year an amount of 20 cents per gallon on the total number of gallons used by Smith in his individual business during such year. Inasmuch as we have thus decided and inasmuch as those amounts were retained, with petitioner's obvious approval, by Smith who was a stockholder of petitioner, we are of the opinion, and so hold, that such amounts constituted a preferential "dividend" distribution to Smith as a stockholder of petitioner. Paramount-Richards Theatres, Inc. v. Commissioner, 153 Fed. (2d) 602, and Forcum-James Co., 7 T. C. 1195. In computing petitioner's personal holding company surtax for 1934 and 1935, respondent has not allowed petitioner any credit for "dividends paid during the taxable year," and in that respect he erred.
On January 1, 1934, petitioner had a deficit of $ 4,875.22. On the basis of our conclusion on the first issue, the gross income of petitioner for 1934 was $ 10,713 (20 cents per gallon on the 53,565 gallonage used by Smith during that period) and for 1935 was $ 10,784.20 (20 cents per gallon*286 on the 53,921 gallonage used by Smith during that period). The parties have agreed that certain deductions disallowed by respondent for each of the years 1934 and 1935 were proper. This leaves as the sole allowable deductions from the gross income of petitioner for 1934 the total amount of $ 618.08, and for the year 1935 the amount of $ 766.58.
When from its gross income of $ 10,713 for 1934 there is deducted the $ 618.08, the net income of petitioner for that year was $ 10,094.92. Applying $ 4,875.22 of that amount to restore the amount of the deficit existing at the beginning of 1934 leaves $ 5,219.70 of the profits and earnings of that year distributable as dividends. Therefore, of the amount of $ 10,713 retained by Smith in that year $ 5,219.70 constituted *676 a preferential dividend, which, under the applicable statutes in force for that year, should be allowed as a dividend paid credit in computation of petitioner's "undistributed net income" subject to personal holding company surtax. When from its gross income of $ 10,784.20 for 1935 there is deducted the $ 766.58 above mentioned, the net income of petitioner for that year was $ 10,017.62, distributable as dividends. *287 Therefore, of the $ 10,784.20 retained by Smith in that year $ 10,017.62 constituted a preferential dividend which under the applicable statutes in force for that year should be also allowed as a dividends paid credit in computation of petitioner's "undistributed net income" subject to personal holding company surtax. It follows that petitioner in neither of the years 1934 or 1935 was subject to tax as a personal holding company.
The contrary is true as to all the taxable years subsequent to 1935, for the amounts retained by Smith during those years were "preferential dividends" and not pro rata distributions, "equal in amount and with no preference to any share of stock as compared with other shares of the same class" as required by the cited statutes in force in all the taxable years subsequent to 1935.
It is conceded by petitioner that it did not file personal holding company returns for any of the periods involved.
For the years 1934 and 1935, under section 291 of the Revenue Acts of 1934 and section 406 of the Revenue Act of 1935, the imposition of the penalty would be mandatory if the petitioner had undistributed net income subject to personal holding company surtax during*288 those years. However, by reason, as shown above, of the application of some of its allocated income in 1934 to eliminate a deficit and by further reason of the fact that its remaining allocated income was, as we have held herein, distributed during 1934 and 1935 to Smith as preferential dividends, the petitioner had no undistributed personal holding company net income subject to surtax for either 1934 or 1935. Therefore, since petitioner had no such surtax liability, it is not subject to any penalty for failing to file personal holding company returns for those years. Oscar K. Eysenbach, 10 B. T. A. 716; H. D. Ruos, 13 B. T. A. 240; and Oklahoma Contracting Corporation, 35 B. T. A. 232.
Under section 291 of the Revenue Acts of 1936 and 1938 and of the Internal Revenue Code, the penalty for failure to file a return for 1936 and subsequent years may be avoided by a showing that such failure was due to reasonable cause and not due to willful neglect. Commissioner v. Lane-Wells Co., 321 U.S. 219">321 U.S. 219. The various penalties imposed to insure payment of income tax*289 are designed to meet the various causes of default, but, since the law is complicated and gives rise to problems of great complexity and innocent errors are numerous, "It is not the purpose of the law to penalize frank difference of opinion *677 or innocent errors made despite the exercise of reasonable care. Such errors are corrected by the assessment of the deficiency of tax and its collection with interest for the delay." Spies v. United States, 317 U.S. 492">317 U.S. 492. See also Commissioner v. Clarion Oil Co., 148 Fed. (2d) 671.
In our opinion, the facts herein clearly show that the failure on the part of petitioner to file such returns for the years subsequent to 1935 was due to reasonable cause and not to willful neglect.
An internal revenue agent made a report on petitioner's income tax return for 1934 based upon his examination of that return and of the books and records of petitioner. In that report a deficiency was found by sole reason of the disallowance of claimed excessive depreciation and a net income of $ 923.79 was determined. It was stated in the report with regard to petitioner's income that "Its *290 only income is the royalties from his (Smith's) individual plant locations." There was no suggestion in the report that petitioner was subject to tax on personal holding company income notwithstanding the fact that the revenue agent examined all the records of petitioner, which then, no doubt, disclosed, as we have found to be a fact, that petitioner had declared no dividend and made no distribution purporting to be such to its stockholders. The revenue agent was thus apprised of the fact that all of petitioner's $ 927.79 net income or profits for 1934 remained undistributed, and yet he suggested no imposition of personal holding company surtax on that amount.
With all the facts before the revenue agent and the petitioner alike at the time the agent made his report on petitioner's income for 1934 and the agent, presumably an expert, obviously holding the view that no cause whatsoever existed for holding petitioner liable for personal holding company tax for that year, it would seem that petitioner would be justified in holding the same view, and, that consequently, it had reasonable cause for not filing personal holding company returns for that year; and, by the same token, there *291 having been no further examination of petitioner's records until the examination resulting in the deficiency herein, and the petitioner having in all subsequent years continued to conduct its business in the same manner and to receive the same character of income as it did in 1934, it would also seem that petitioner had reasonable cause for failing to file personal holding company returns for those subsequent years. As further indicating that petitioner had reasonable cause for failing to file personal holding company returns, it is shown that, except for the year 1934, each of petitioner's income tax returns as filed for the years 1931 to 1940, inclusive, reported a net loss and, except for the one year 1934, neither the income nor the claimed deductions resulting in the net losses as reported on such returns were questioned by respondent at any time prior to his *678 determination involved herein. It would thus also seem that if, year by year up to the time of the determination from which this proceeding was instituted, the respondent, having knowledge of the factual circumstances surrounding petitioner's business through his agent's report for 1934, did not deem it necessary*292 for petitioner to file personal holding company returns, then certainly those same factual circumstances of which petitioner also, of course, had knowledge, afford reasonable cause for petitioner's failure to file such returns for those years.
The respondent erred in determining the penalties involved.
Decision will be entered under Rule 50.
Disney, J., dissenting: I must dissent to the holding of the majority that the petitioner was not subject to penalty for failure to file personal holding company returns. The reasons given by the opinion are, in effect, that as to each year, except 1934, the petitioner's income tax returns reported a net loss, and that an internal revenue agent examined petitioner's income tax return for 1934 and found a net income of $ 927.79 and a deficiency of $ 121.17, due to disallowance of excessive depreciation, the agent stating in the report that the petitioner's only income was the royalties from Smith's individual plant locations. To hold that this constitutes reasonable cause in failing to file the return, in my view, is altogether inconsistent with the previous cases on the subject. Mere belief that a corporation is not subject to*293 the tax is not reasonable cause for failure to file. P. Dougherty Co., 5 T. C. 791 (800), and cases cited. Moreover, in Searles Real Estate Trust, 25 B. T. A. 1115 (not a personal holding company case), the excuse proffered for failure to file return was that an offer was made to file a belated return, but a revenue agent had told those in charge of petitioner's affairs that it need not file; yet, we held that such facts did not suffice to excuse failure to file a return. It is true that that case arose under section 1311 of the Revenue Act of 1921 (in this respect the same as section 291 of the Revenue Act of 1934) under which a return, though belated, must be filed, whereas since the Act of 1936 the statutes have provided for showing of reasonable cause as excuse for not filing. Nevertheless, it seems to me that the case is recognition of the fact that conduct of a subordinate departmental officer may not be relied on as reasonable cause. Though the statute here involved did not, like the former one, absolutely require a belated filing, yet it did make a requirement -- a showing of reasonable cause, and the language*294 of the Searles case is still applicable: "We find no provision in the law *679 which would permit the Commissioner to waive this requirement of the statute by the conduct of his subordinate employees * * *." I think that reasonable cause may not be predicated in the attitude of a revenue agent, at least not where, as here, he merely failed to do anything or say anything as to the personal holding company situation. Even if positive statements by an agent could constitute reasonable cause, surely silence does not. In general, silence may estop only where there is a positive duty to speak. The excuse here offered amounts to a contention that a revenue agent has a duty of informing the taxpayer of all of his rights and duties -- a view I consider neither sound, logical, nor administratively feasible. In line with the conclusion in the Searles case, and citing it, is our statement in Blum Folding Paper Box Co., 4 T. C. 795 (799), that, "The Government can not be estopped by statements of its agents which are beyond the scope of their authority." Moreover, the majority opinion holds that for 1934, as to which the revenue agent made the examination, *295 there was, due to a deficit and distribution of preferential dividends to Smith, no undistributed personal holding company net income subject to surtax, and therefore no penalty for failure to file return. Such situation may have been the reason that the revenue agent made no suggestion that the petitioner was liable as a personal holding company for 1934. In my opinion, at least in the absence of explanation in this regard, the agent's silence as to personal holding company status offers no reasonable cause for failure to file; and the situation as to whether there was personal holding company income might change from year to year, so that even if the agent had made a positive statement in that regard for 1934, it would be no reasonable excuse in later years. I therefore respectfully dissent to the conclusion on the penalty issue.
Footnotes
1. SEC. 45. ALLOCATION OF INCOME AND DEDUCTIONS.
In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Commissioner is authorized to distribute, apportion, or allocate gross income or deductions between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any such organizations, trades, or businesses.↩
2. SEC. 351. SURTAX ON PERSONAL HOLDING COMPANIES.
* * * *
(b) Definitions. -- As used in this title --
(1) the term "personal holding company" means any corporation (other than a corporation exempt from taxation under section 101, and other than a bank or trust company incorporated under the laws of the United States or of any State or Territory, a substantial part of whose business is the receipt of deposits, and other than a life-insurance company or surety company) if -- (A) at least 80 per centum of its gross income for the taxable year is derived from royalties, dividends, interest, annuities, and (except in the case of regular dealers in stock or securities) gains from the sale of stock or securities, and (B) at any time during the last half of the taxable year more than 50 per centum in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals. For the purpose of determining the ownership of stock in a personal holding company -- (C) stock owned, directly or indirectly, by a corporation, partnership, estate, or trust shall be considered as being owned proportionately by its shareholders, partners, or beneficiaries; (D) an individual shall be considered as owning, to the exclusion of any other individual, the stock owned, directly or indirectly, by his family, and this rule shall be applied in such manner as to produce the smallest possible number of individuals owning, directly or indirectly, more than 50 per centum in value of the outstanding stock; and (E) the family of an individual shall include only his brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants.↩
3. SEC. 352. DEFINITION OF PERSONAL HOLDING COMPANY.
(a) General Rule. -- For the purposes of this title and of Title I the term "personal holding company" means any corporation if --
(1) Gross income requirement. -- At least 80 per centum of its gross income for the taxable year is personal holding company income as defined in section 353↩; but if the corporation is a personal holding company with respect to any taxable year, then, for each subsequent taxable year, the minimum percentage shall be 70 per centum in lieu of 80 per centum, until a taxable year during the whole of the last half of which the stock ownership required by paragraph (2) does not exist, or until the expiration of three consecutive taxable years in each of which less than 70 per centum of the gross income is personal holding company income; * * *
4. SEC. 353. PERSONAL HOLDING COMPANY INCOME.
For the purposes of this title the term "personal holding company income" means the portion of the gross income which consists of:
* * * *
(f) Use of Corporation Property by Shareholder. -- Amounts received as compensation (however designated and from whomsoever received) for the use of, or right to use, property of the corporation in any case where, at any time during the taxable year, 25 per centum or more in value of the outstanding stock of the corporation is owned, directly or indirectly, by or for an individual entitled to the use of the property; whether such right is obtained directly from the corporation or by means of a sub-lease or other arrangement.↩