*1221 1. A contract is not divisible where its terms are made interdependent and to be performed simultaneously.
2. Purchases and sales at par, of corporate preferred stocks, upon which the dividends are regularly paid, are evidence that the fair market value of the stocks is at least par.
*1242 The Commissioner determined a deficiency in income tax against the petitioners for the year 1926 of $5,779.69, resulting from a certain addition to income growing out of the exchange of stock belonging to the estate of their decedent for other stock and cash.
FINDINGS OF FACT.
A stipulation of facts was filed by the parties, which by reference we adopt. Reservation was made of the right to introduce other evidence not inconsistent with the stipulation. The material facts from the stipulation filed and from the evidence offered are as follows:
That sometime prior to February 15, 1926, George Boole Died testate, and the petitioners were appointed and are now the executors of his estate. Prior to the death of the testator there were two corporations each*1222 having the name A. M. Castle & Co. One was located in Chicago and is hereinafter called the Chicago corporation, and the other was located in Seattle and is hereinafter called the Seattle corporation. At the time of his death, testator owned 2,913 shares of the preferred stock of the Seattle corporation. On February 15, 1926, the petitioners as executors and trustees under the will of George Boole, deceased, parties of the first part, entered into a written contract with the Chicago corporation, as party of the second part, the material parts of which contract (substituting for the names of the corporations the designations as above) are as follows:
(1) The parties of the first part agree to convey, sell and assign to the party of the second part, and the party of the second part agrees to buy, two thousand nine hundred and thirteen (2913) shares of the preferred stock of the Seattle corporation for Ninety Dollars ($90.00) per share, subject, however, to all the other terms and conditions of this agreement.
(2) Immediately upon the consummation of the sale provided for in Paragraph 1 hereof, the parties of the first part agree to accept in payment of said *1243 2913*1223 shares of the preferred stock of the Seattle corporation at $90.00 per share, Two Thousand Six Hundred Twenty-one (2621) shares of preferred stock in the party of the second part, of the par value of One Hundred Dollars ($100.00) per share, said preferred stock to be of the character, form and condition as hereinafter stated, and the sum of Seventy Dollars ($70.00) in cash.
(3) It is agreed that all past dividends whether now declared or set apart but which are due on the preferred stock held by the parties of the first part in the Seattle corporation up to and including the dividend due January 1, 1926, shall simultaneously with the sale and transfer of said stock as above provided be paid in cash to the parties of the first part, to-wit: the sum of Forty Thousand Seven Hundred Eighty-two Dollars ($40,782.00), and that in addition thereto the party of the second part shall pay to the party of the first part dividends on said 2913 shares, par value, at seven (7) per cent from January 1, 1926 to the date of the closing of this deal, in cash. It is further understood that while the above dividends are the obligation of the Seattle corporation, that in order to consummate this deal*1224 and as a part of the consideration hereof the party of the second part herein guarantees the payment of said dividends, as hereinabove provided.
(4) It is further agreed that in the event the preferred stock of the party of the second part offered and taken in exchange for the preferred stock of the first parties herein bears an earlier date than the actual date of transfer and delivery to the parties of the first part, and said stock is entitled to interest or dividends from an earlier date, that the parties of the first part herein shall execute an instrument waiving the right to any dividends on said preferred stock so received from second party up to the date of delivery of said stock to first parties.
(5) As one of the conditions precedent to the sale and exchange of stock provided for hereunder, the party of the second part shall cause David B. Gann of Chicago, Illinois, attorney for said party of the second part, or someone in his behalf, to purchase from the parties of the first part for cash at par, together with accrued dividends thereon, Fifty Thousand Dollars ($50,000.00) of the par value of the preferred stock in the Chicago corporation sold to the said parties of*1225 the first part under Paragraph 2 hereof, said puchase to be simultaneous with the sale and exchange provided hereunder.
(6) The party of the second part shall on or before days from date, cause to be conveyed and transferred to it all of the real, personal or mixed assets of whatever kind and character of the Seattle corporation together with the good will of said company, subject to its existing indebtedness and claims against it.
(7) It is agreed that the preferred stock to be delivered by the second party to the first parties hereunder in exchange for its preferred stock as herein provided, shall be of an issue of preferred stock of the second party, which total issue of preferred stock shall not be in excess of One Million Dollars ($1,000,000.00), and said $1,000,000.00 preferred stock issue, of which the stock sold and delivered to the parties of the first part hereunder is a part, shall be the only preferred stock of the second party then outstanding and that during the existence of said preferred stock no other issue of any preferred stock or mortgage or bonded indebtedness shall be made, executed or delivered which shall constitute or be an equal or prior lien to the*1226 preferred stock of which the stock the second party gets is a part; it being understood, however, that there is at the present time a bonded indebtedness now against the property *1244 of the second party in the sum of Two Hundred Ninety-three thousand Dollars ($293,000.00) which shall be a prior lien to said preferred stock.
(8) It is understood that the party of the second part herein, has at present a $250,000.00 preferred stock issue outstanding.
As a further condition precedent the party of the second part agrees and guarantees to call in, redeem or purchase all the outstanding stock of said $250,000.00 preferred stock issue simultaneously with the issuing of said $1,000,000.00 preferred stock above referred to, so that said $1,000,000.00 preferred stock issue shall be the first and only preferred stock issue of said party of the second part then outstanding.
That the second party may, if it sees fit so to do, exchange $250,000.00 of said $1,000,000.00 issue with the present holders of said $250,000.00 issue. That the balance of the $1,000,000.00 preferred stock issue may be used by the party of the second part for the purchase of the preferred stock of the Seattle*1227 corporation, on the basis of nine (9) shares of said preferred stock of the Chicago corporation for ten (10) shares of the preferred stock of the Seattle corporation; and it is further agreed between the parties hereto that all remaining preferred stock out of said $1,000,000.00 preferred stock issue when issued shall be sold for cash and for not less than par.
[Paragraphs 9, 10 and 11 not material here.]
(12) It is agreed and made one of the conditions of this contract that before the party of the second part causes the assets to be transferred from the Seattle corporation to it (the second party herein), that it shall first cancel and surrender the preferred stock which the party of the second part is purchasing from the First parties herein; and also cancel and surrender all of the preferred stock which the party of the second part herein shall have, or may hereafter purchase from any or all the other present or future owners of the present preferred stock issue now outstanding of the Seattle corporation, it being understood that the party of the second part herein is now endeavoring and using its best efforts to purchase all of the said preferred stock of the Seattle corporation*1228 on approximately the same basis that it is purchasing said preferred stock which the parties of the first part herein now own. Until the assets of the Seattle corporation are conveyed to the party of the second part, the latter guarantees that the said Seattle corporation shall not issue any additional preferred stock or increase its mortgage or bonded indebtedness.
It is further agreed that when second party takes over the assets of the Seattle corporation, that it will pay for the same by issuing common stock of the Chicago corporation.
(13) The party of the second part guarantees the prompt and full payment of dividends on the preferred stock which the parties of the first part take on the consummation of this agreement until the Estate of George Boole now in probate in the Superior Court of King County is finally closed and distributed and further guarantees that said dividends shall be paid in cash semiannually at the time designated on said preferred stock when said dividends are to become due; provided however, that this guarantee shall not extend in any event beyond the dividends falling due on or prior to the first day of September, 1927.
[Paragraph 14 not material*1229 here.]
(15) In consideration of the execution of this agreement the party of the second part agrees to make and enter into an agreement with Helen King Boole as legatee under the last Will and Testament of George Boole, agreeing upon her authorization and consent to the execution of this agreement to redeem or purchase at par and accrued dividends the portion of the preferred stock *1245 sold under paragraph 2 hereof, which will be distributed to the said Helen King Boole upon the closing of the estate of George Boole, not exceeding, however, five-sixteenths (5/16ths) of the total amount of the preferred stock then held for distribution by the executors and trustees of said estate, such redemption or purchase to take place on or before three (3) years after the execution of this agreement.
(16) In further consideration of the execution of this agreement, and simultaneously therewith, the party of the second part agrees to pay to the Western Hardware & Metal Co. the sum of Fifteen Thousand Dollars ($15,000.00) in cash, conditioned upon the dismissal with prejudice and without costs to any of the parties, of that certain action in the District Court of the United States*1230 for the Western District of Washington, Northern Division, wherein Western Hardware & Metal Co. is plaintiff and Louis M. Henoch and the Seattle corporation are defendants, being cause number 8313 in said court.
[Paragraphs 17, 18 and 19 not material here.]
(20) It is mutually understood and agreed that all of the rights and obligations hereunder shall inure to the benefit of and be binding upon the successors and assigns of all the parties hereto.
Pursuant to this agreement the Chicago corporation received from petitioners the 2,913 shares of the preferred stock of the Seattle corporation; and petitioners received therefor from the Chicago corporation the 2,621 shares of the preferred stock of the Chicago corporation and $70 cash. At the same time the Chicago corporation caused its attorney to purchase from the petitioners 500 shares out of said 2,621 shares of the Chicago corporation stock for a total price of $50,000 paid to petitioners. These transactions were carried out as a part of the reorganization of the Chicago corporation under the terms of which the Seattle corporation merged and consolidated itself and its assets with the Chicago corporation, and pursuant*1231 thereto the Seattle corporation transferred all its assets to the Chicago corporation, and immediately before, during and immediately after the transfer the holders of over 80 per cent of the voting stock of the Seattle corporation were likewise the holders of over 80 per cent of the voting stock of the Chicago corporation.
From the time of the organization of the Seattle corporation, the Chicago corporation held and owned all its common or voting stock, and George Boole, the deceased, and after his death, his executors, held and owned practically all the preferred stock. In 1926, the preferred stock of the Seattle corporation was in default for two years. At that time the balance sheets of the Chicago corporation showed no intangible assets. It made a fair profit in 1926. Dividends on its preferred stock were then being regularly paid. The Chicago corporation had several branches, including those at Los Angeles and at San Francisco, and, desiring to merge or consolidate with the Seattle corporation, sent its vice president to that city in the latter part of 1925. The vice president for the Chicago corporation offered the holders of the preferred stock of the Seattle corporation*1232 *1246 $60 a share therefor, which they declined. This stock had been appraised at $70 a share in the settlement of the estate tax of petitioners' decedent with the Government, and at the time herein mentioned was of the fair market value of $70 per share. The contract of February 15, 1926, was the ultimate outcome of negotiations between petitioners and the Chicago corporation.
During the hearing of this cause and while a witness for petitioners was being cross examined by respondent's counsel, and was apparently confused in his testimony as to whether the stock of the Chicago corporation about which he was being examined was that outstanding before or after reorganization, petitioners' counsel volunteered the statement as follows: "There was an old preferred stock of the Illinois [Chicago] Company prior to the time we made the deal. Then when this deal was completed the preferred stock was raised to a million and I think the record will show that about $680,000 was actually issued." This counsel was later a witness for petitioners, but in his testimony did not mention the amount of stock issued.
OPINION.
SEAWELL: The petitioners contend, in the first place, that*1233 the contract of February 15, 1926, is a divisible one and that the exchange of preferred stock of the Seattle corporation for preferred stock of the Chicago corporation is a distinct and separable transaction from the sale of 500 shares of the Chicago corporation for $50,000; and that under subsection (b)(2) of section 203 of the Revenue Act of 1926, no gain should be recognized in the exchange of stock for stock, for the exchange was made in pursuance of a plan of reorganization and as contemplated in that section. This contention, however, overlooks the fact that this section of the law provides that no gain shall be recognized "if stock or securities * * * are * * * exchanged solely for stock or securities," and that in this case in addition to stock the Chicago corporation also paid to petitioners cash of $70 at the least, which is sufficient to take the transaction out of the statute relied on. In any event, therefore, it appears that the transaction is governed by section 203(d)(1) of said act. But we are not persuaded that the contract is divisible. Not only was the purchase of the 500 shares to be made "simultaneous with the sale and exchange" of the stock, but "As*1234 one of the conditions precedent to the sale and exchange of stock." (Paragraph 5 of the contract.) According to the evidence of petitioners' witnesses, the chief moving cause and consideration for the whole transaction on the part of the petitioners was the cash to be received, of which the petitioners stood in need for the purpose of settling the estate.
*1247 The provisions of the contract are so interlocked and so interdependent that a separation or division, such as is suggested, would annul some of its provisions and defeat its main purpose. If then the contract is not separable, it follows that what the petitioners did was to exchange 2,913 shares of preferred stock of the Seattle corporation for 2,121 shares of the preferred stock of the Chicago corporation and $50,070 in cash. (.) In this situation petitioners' counsel concedes that the Board should be governed by subsection (d)(1) of section 203 of the Revenue Act of 1926. This statute, under the described circumstances, provides: "the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of money and the fair market*1235 value of such other property." There was no "other property" in the sense of the statute here involved, and, accordingly, the limitation refers simply to the "money" received. In order to ascertain whether there was gain (to be limited by the money received) or loss, and the amount thereof, it is necessary to know the value of the properties entering into the transaction. Petitioners say that while the value of the Seattle corporation's preferred stock, for the purpose of this proceeding, was $70 per share, and the amount of cash is not in dispute, the preferred stock of the Chicago corporation was without any "fair market value" and for this reason no gain or loss can be recognized. Respondent, on the other hand, contends that the fair market value of the Chicago corporation's preferred stock was not less than $100 per share. Thus is the principal issue in the case made up.
Fair market value, as defined by the courts, is that price at which a seller willing to sell at a fair price and a buyer willing to buy at a fair price, both having reasonable knowledge of the facts, will trade. In a sense, every commodity of commerce has this fair market value if the elements combine and*1236 can be ascertained. Fair market value is not synonymous with intrinsic value nor with market price. It is not necessarily nonexistent because reasonable knowledge of the facts is known to only a few people, or because willing buyers or willing sellers are few. It is determined when the facts become known to the described buyer and to the described seller. There may be such buyers and such sellers who, because of lack of such knowledge, never meet or trade; and also there may be buyers and sellers with knowledge of their own requirements who would trade if they met and knew the existing situation.
As said in :
We think it well settled that whether property at a given date has a fair market value or not is a question of fact to be determined from all of the evidence introduced and admitted in each individual case; that no set rule or formula can be employed. * * *
*1248 On a somewhat similar issue which the Commissioner was to decide, the Supreme Court in *1237 , said:
* * * As the method to be pursued in ascertaining the value is not prescribed, we think that it was left to the sound judgment and discretion of the Commissioner, subject only to the obligation to take into consideration every relevant fact. [Italics supplied.]
The relevant facts in this case appear from the opinion evidence of petitioners' witnesses and the attendant circumstances connected with, and included in, the contract or agreement between the petitioners and the Chicago corporation. The burden of the proof is upon petitioners (), which they maintain they have successfully carried by the testimony of several witnesses offered at the hearing. Only one expert witness, present at the hearing, testified explicitly that the stock, in his opinion, had no fair market value in 1926; but, it was stipulated that another witness, if present, would testify to the same effect, and this was received and considered as if the witness had been present and so testified. This testimony included the statement that only the officers and*1238 directors of the corporation owned the stock of the company and that the stock could be sold or bought only through them; and that the corporation at that time showed earnings.
Only one instance of trading in stock of the Chicago corporation, other than those mentioned in the agreement of February 15, 1926, was given in evidence and that was the exchange of preferred stock for common stock; but incidentally counsel for petitioners, who was also a witness, stated on the hearing (not as a witness) that about $680,000 of the million dollars of preferred stock of the Chicago corporation was issued after the reorganization. As the agreement provided that this stock could not be sold for less than par, it should be presumed that it was sold for as much as par. It was also in evidence from these witnesses for the petitioners that the balance sheets of the Chicago corporation showed in 1926 no intangible assets, and that the corporation was then making a "fair profit" and was paying regularly the dividends on the preferred stock. All the circumstances detailed in evidence indicated that the intrinsic value was not inconsistent with the claimed fair market value. Treating all the witnesses*1239 offered as experts by petitioners to be such, and considering fully and carefully all that was testified to by them, it seems the evidence amounts to but little, if any, more than that the Chicago corporation's preferred stock was closely held and not listed on any exchange or otherwise offered for sale, and that financial or other reports of the corporation's affairs were not made public so that prospective buyers could have sufficient and readily available knowledge *1249 of prevailing conditions to appraise intelligently the values or bid for the stock if it had been offered for sale. There was, too, some apparent confusion with some of the witnesses as to whether it was the stock of the Chicago corporation before or after its reorganization about which they were called on to testify.
Expert testimony, useful and helpful as it often is, does not, of course, compel a decision contrary to other evidence which engages our best judgment. .
The Commissioner's determination that this stock had a fair market value of $100 per share is prima facie correct and the burden is on the petitioners to overcome the correctness*1240 of this determination. This does not mean, of course, that in sustaining the presumption favoring the Commissioner we can ignore facts and circumstances present in the case which disclose a situation making untenable that presumption. "There must be a limit beyond which the presumptive correctness of the Commissioner's determination may not be stretched in order to defeat a taxpayer." . The facts and circumstances here appear not to weaken, but to strengthen materially, the Commissioner's position. In the contract of February 15, 1926, set out in the findings of fact, the Chicago corporation, which knew better than any other the value that might properly be placed on the stock, agreed to purchase 500 shares thereof as soon as it was issued at $100 per share, or to procure a purchaser at that price, and to purchase as much as five-sixteenths of the rest of the stock transferred to petitioners at the same price, after paying all accumulated dividends. In addition, the Chicago corporation agreed to safeguard the stock by limiting the amount of it to one million dollars*1241 and to sell none of it for less than par. There was no evidence offered as to the amount of this million-dollar stock issued. The witnesses offered, except the attorney for petitioners, appeared to have no knowledge, or only very limited knowledge, on the subject. The attorney, when he testified, made no mention as to this point, but in the course of the trial he volunteered the statement that about $680,000 of it had been issued. We are not required to ignore a statement made under these circumstances, as the law presumes good faith in the conduct of attorneys appearing in court, and we have no reason to alter this presumption in this case. Admissions made by an attorney at the hearing are binding on the client. ; ; and . The attorney appeared to be in sincerity and in the utmost good faith in what he said, and his statement was in aid of, and to clarify, the evidence of one of the petitioners' witnesses.
*1250 In petitioners' brief it is said that, "We are concerned not with 500 shares of stock, but 2,121 shares*1242 of stock, and the market value, if any, of the 2,121 shares of stock would probably be substantially different from the market value of 500 shares of stock." We have more than the 500 shares to deal with here, even if we should ignore the remark of counsel in the trial. The five-sixteenths of the remaining 2,121 shares which might be allotted to the widow amounted to 662+ shares and these the Chicago corporation agreed to purchase at par. Thus we have 1,162 shares contracted for before the stock was issued, and if the corporation issued, as counsel stated, about 6,800- shares, and at as much as par, as contracted, we have for consideration more than three-fourths of the whole authorized issue of $1,000,000, sold at a price as great as par. Sales and offers to buy made in good faith have ever been recognized as evidence of fair market value, and no authority is needed to support the proposition. Without reference to the remark of counsel during the trial, we are of the opinion, and so hold, that, considering all the evidence, including the contract and attendant circumstances, petitioners have failed to overcome the presumption favoring the determination of the Commissioner; and*1243 that the preferred stock of the Chicago corporation, including the 2,121 shares in controversy, had a fair market value at the time of the exchange of at least $100 per share. It follows that the Commissioner should be sustained.
Judgment will be entered for the respondent.