*2221 On the evidence, held that decedent's investment of $9,900 in the common stock of the Midwest Engine Corporation became worthless within the taxable year 1922, and the petitioners are entitled to a deduction of said amount from gross income for said year as a loss.
*921 This is a proceeding for the redetermination of a deficiency in income tax for the year 1922 in the amount of $4,480.99, of which the amount in controversy is $3,621.80. The only issue raised by the pleadings is whether the respondent erred in disallowing as a deduction from gross income a loss of $9,900 alleged to have been sustained by the decedent by reason of the fact that an investment in corporate stock became worthless in said year.
*922 FINDINGS OF FACT.
The decedent, Clarence E. Poston, died intestate on March 27, 1926, a citizen of the United States and a resident of Crawfordsville, Montgomery County, Ind., and the petitioners herein are the duly appointed, qualified and acting administrators of the estate of said decedent.
On July 1, 1918, the Midwest Engine*2222 Co. of Indiana was organized as a corporation with broad charter powers. Immediately following its organization, the corporation was engaged in the manufacture of turbines under a contract with the United States Government. Following the close of the World War, the company was engaged in the manufacture of a farm tractor called the utilator. In 1920 the corporation had some financial difficulties. A new holding corporation, known as the Midwest Engine Co. of Delaware was organized and preferred stock to the approximate amount of $4,000,000 was sold.
In 1920 the decedent, Clarence E. Poston, purchased 100 shares of the preferred stock of the Midwest Engine Co. of Delaware for $9,900 cash.
In late 1920 the Midwest Engine Co. of Indiana, the operating company, became involved in further financial difficulties. Under date of January 7, 1921, an agreement was entered into whereby the company secured a loan of $375,000 in order to continue in the operation of its business. By virtue of this agreement, S. A. Fletcher, the chief stockholder of the Indiana company and the promoter thereof, turned over to the banks loaning the money 71,241 shares of the common stock of the Delaware*2223 corporation as collateral, and the Indiana company also turned over to the banks accounts and bills receivable in the amount of $470,000 as collateral. A committee of bankers was appointed to investigate the financial affairs and responsibilities of the Indiana corporation with a view to making an additional loan of $300,000.
On February 15, 1921, another agreement was entered into by the Indiana company and the banks, by virtue of which the banks made an additional loan to the company of $300,000. And at the same time by virtue of the agreement, creditors of the company holding claims of more then $550,000 gave an extension of time to the company for six months; in addition, Mr. Fletcher assigned to the trustee all of his personal property as collateral.
On June 27, 1921, an agreement was made between the Midwest Engine Co. of Indiana, the Delaware corporation, S. A. Fletcher, the bank creditors and general creditors, by virtue of which the banks released to the Indiana company the accounts and bills receivable *923 which it held as collateral, in order that the Indiana company might have working capital, and the general creditors extended the time of payment of their*2224 claims for one year from June 27, 1921. The agreement provided for two further extensions of not to exceed six months each. It was further provided in that agreement that claims of all general creditors were to be subordinate to the claims of banks for loans made to the company since January 1, 1921, in the event of bankruptcy or insolvency, which bank claims then aggregated about $468,000. In the same agreement, a committee of creditors was appointed, which was given power to operate and manage the business, and authority to borrow an additional $250,000.
The financial difficulties of the business continued. Under date of January 9, 1922, a letter was addressed to the stockholders of the company and signed by its president, which outlined a plan of reorganization for the business. Under this plan a new corporation, to be known as the Midwest Engine Corporation, was to be organized, which was to have conveyed to it all of the assets of the Indiana and Delaware companies. Under the plan the creditors of these companies were to receive preferred stock in the new corporation. The preferred stockholders of the old Delaware company were to receive no-par common stock, share for*2225 share, of the new corporation. The plan of reorganization also provided for the raising of $1,000,000 additional capital by the sale of bonds of the new corporation. It was recommended that each of the preferred stockholders purchase an amount of bonds equal to 35 per cent of the par value of his holdings of preferred stock in the old Delaware company. In connection with the purchase of bonds, a certain number of shares of no-par common stock was received by each purchaser of bonds as a bonus.
Approximately $630,000 of the bond issue of $1,000,000 was subscribed for by the preferred stockholders of the old Delaware corporation. The remaining $370,000 in bonds was subscribed by the Indianapolis Holding Co., a corporation organized by the bankers and other large creditors of the old Delaware corporation. These bond subscriptions were completed on or before June 27, 1922. The first payments were made in July and August, 1922. The remaining three payments were each due and payable 30, 60 and 90 days thereafter.
On or before June 27, 1922, the decedent, Clarence E. Poston, subscribed for $3,500 in bonds of the new corporation. On July 12, 1922, the decedent made his first*2226 payment on such bonds in the amount of $875. The remaining payments were made on or before November, 1922. By reason of his purchase of such bonds in the amount of $3,500, the decedent received as a bonus 175 shares of *924 no-par common stock in the new corporation. The decedent also received his pro rata share of 100 shares of no-par common stock, by reason of his holding 100 shares of preferred stock in the old Delaware corporation.
The business as thus reorganized continued its operations until 1924, when it went into the hands of a receiver, which proceeded to liquidate and close the business. The business was finally liquidated in 1925, and nothing whatever was paid to common stockholders. The decedent, Clarence E. Poston, received, as a liquidating dividend upon his bonds, $305.60.
In decedent's Federal income-tax return for 1922, he claimed a deduction for the Midwest Engine Co. preferred stock in the amount of $9,900. In connection with such claimed loss, the decedent made the following notation on his 1922 return, which return was sworn to on March 7, 1923:
I owned 100 shares preferred stock in the Midwest Engine Company, Indianapolis, which cost me $9,900.00. *2227 To prevent this company's business being wound up by a receivership, a reorganization had to be made on a plan which required the preferred stockholders to surrender their preferred stock in the old company and accept no par value common stock in the new organization called Midwest Engine Corporation. I know of no market for this common stock, or that it has any market value, and I believe it to be a present total loss.
In decedent's Federal income-tax return for 1925 a loss of $3,194.40 was claimed on the bonds of the Midwest Engine Corporation. In connection with such claimed loss, the 1925 return contains the following notation:
In 1922 I bought bonds of the Midwest Engine Company paying $3,500.00 for them. The property was sold by receiver and I received but $305.60 - making a loss of $3,194.40.
The Midwest Engine Co. for the year 1920 had an operating loss of $1,900,013.86, for the year 1921 it had an operating loss of $1,732,501.36, and for the year 1922 the business suffered an operating loss of $481,544.92.
During the year 1921 the Midwest Engine Co. set up on its books as an asset an account entitled "Development Expense." Prior to the setting up of this account, *2228 its overhead expenses ran some months as high as 750 per cent of the productive labor. Instructions were given by the officers to those in charge of the books to place in this particular account all factory overhead expenses in excess of 150 per cent of the direct labor used in the factory. The items so placed in said account included development expense of the motor and tractor, such as engineering expense, advertising expense and other items that usually enter into factory overhead in connection with manufacturing, which were in excess of 150 per *925 cent of productive labor. Said account at December 31, 1921, showed a balance of $2,017,457.89, and at December 31, 1922, amounted to $2,204,679.29. This account appeared for the first time in the balance sheet at December 31, 1921, and was not in the balance sheet at December 31, 1920. This account in fact represented no actual value.
OPINION.
TRAMMELL: There is only one issue presented for decision here, namely, whether the petitioners are entitled to a deduction of $9,900 from gross income for 1922 on account of an investment by the decedent in certain corporate stocks purchased in 1920 having become worthless in*2229 the taxable year.
The Revenue Act of 1921 provides as follows:
SEC. 214(a) That in computing net income there shall be allowed as deductions:
* * *
(5) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transaction entered into for profit, though not connected with the trade or business. * * *.
The record before us contains no suggestion that the decedent did not at some time suffer a loss in the amount claimed, or that the loss was compensated for by insurance or otherwise. Nor is it contended that the loss was not incurred in connection with a transaction entered into for profit. The sole question is whether or not the loss was sustained in the taxable year; that is to say, whether or not the stock of the engine company, purchased by the decedent in 1920 for $9,900, became worthless in 1922.
As shown by the deficiency letter, the respondent disallowed the deduction claimed on the ground "that the transaction in 1922 relative to stock in the Midwest Engine Company was a reorganization and no loss may be claimed on this stock until sold or otherwise disposed of." We have no other information respecting the*2230 contentions of the respondent in this case, since no brief has been filed in his behalf.
If it is the position of the respondent that the transaction in 1922, by which the decedent exchanged his shares of preferred stock in the Midwest Engine Co. for shares of common stock in the Midwest Engine Corporation, constituted a reorganization and therefore under section 202 of the Revenue Act of 1921, no loss may be recognized until the stock is sold or otherwise disposed of, it is our opinion that such position is untenable, for the reason that the loss claimed by the petitioners is not claimed as having resulted from the exchange.
*926 The decedent in 1920 purchased preferred stock in the Midwest Engine Co. for $9,900. The corporation had serious financial difficulties in the latter part of 1920, which continued through 1921. At the end of 1921 the stock was not worthless, although undoubtedly there had occurred a pronounced shrinkage in its value. On January 9, 1922, a plan of reorganization was instituted. Under this plan a new corporation, known as the Midwest Engine Corporation, was organized, to which was conveyed all the assets of the two prior companies. The creditors*2231 of the old companies received preferred stock of the new corporation, and the preferred stockholders of the old companies received no-par value common stock, share for share, of the new corporation. Additional working capital in the amount of $1,000,000 was provided for by the issuance and sale of bonds of the new corporation.
At the time the reorganization was completed in 1922, the no-par value common stock of the new corporation for which the decedent had exchanged his preferred stock of the old company could not be said to be worthless, although its value was then more or less problematical. However, the evidence shows that prior to the close of 1922 the common stock of the new corporation had become entirely worthless. It was then apparent that the assets of the corporation would not be sufficient to pay the claims of the general creditors, and that there would be nothing left for distribution among the common stockholders. The operation of the company was continued until 1924, when it went into the hands of a receiver. Liquidation was finally completed in 1925. The bondholders received less than 10 per cent of the face value of their bonds, and the common stockholders*2232 recovered nothing whatever.
It is well settled that a taxpayer may deduct a loss on account of his investment in the capital stock of a corporation having become worthless without waiting until the corporation has completed the sale of its assets and liquidated its business through a receivership or otherwise. . As we said in , p. 888, "The fact that the shell of a worthless corporation continues in business is no bar to the deduction of an investment in that corporation's stock when all facts clearly indicate the stock to be worthless."
From a consideration of the evidence before us, we are convinced that the decedent's investment of $9,900 in the common stock of the Midwest Engine Corporation became wholly worthless within the taxable year 1922, and the petitioners are therefore entitled to a deduction of said amount from gross income for said year. The deficiency should be recomputed accordingly.
Judgment will be entered under Rule 50.