*30 Decisions will be entered under Rule 50.
Petitioners sold, 10 days prior to maturity, certain non-interest-bearing notes which had been issued originally on a discount basis for substantially less than face value. As a result of the sales just before maturity, petitioners realized an increment or profit representing the excess of sales price over basis. Held, that the increment or profit so realized was in fact interest and was taxable as ordinary income notwithstanding the fact that the transactions resulting in the realization of such increment or profit constituted sales.
*392 The respondent determined deficiencies in income taxes of petitioners as follows:
| 1947 | 1948 | 1949 | |
| F. Rodney Paine and Anna H. Paine | $ 4,845.02 | $ 3,431.04 | |
| Cecil B. Myers Trust | $ 1,548.14 | 2,070.87 |
After hearing, these cases were consolidated for decision, and, by stipulation, testimony taken in Docket No. 46036 was received as evidence in Docket No. 46237.
The fundamental question presented for our consideration is whether the increment or profit realized upon the sale, 10 days prior to maturity, of certain non-interest-bearing notes originally issued on a discount basis for substantially less than their face value, is taxable as ordinary (interest) income, or as capital gain.
Other issues in the case have been resolved by agreement between the parties.
FINDINGS OF FACT.
The facts are largely stipulated by the parties and to that extent are found accordingly.
Petitioners F. Rodney Paine and Anna H. Paine, during the years in question, were residents of Duluth, Minnesota, *32 and filed joint income tax returns for the years 1948 and 1949 with the collector of internal revenue for the district of Minnesota. Petitioner Cecil B. Myers Trust, established under the will of Lucy N. Myers, is represented by Cecil B. Myers, James S. Matteson, and Northern Minnesota National Bank, Duluth, Minnesota, as trustees with their principal office at Duluth, Minnesota. Timely income tax returns for the years 1947 and 1948 were filed on behalf of the Cecil B. Myers Trust with the collector of internal revenue for the district of Minnesota.
On May 1, 1902, the Niles Land Company, a Wisconsin corporation (hereinafter called Niles), leased certain mineral lands in St. Louis County, Minnesota, to the Chemung Iron Company, a Minnesota corporation (hereinafter called Chemung), for 50 years. Chemung agreed to pay a royalty of 25 cents per ton on all iron ore removed from the land. The lease also provided for certain annual minimum payments. Subsequently, Chemung assigned its lease to the Oliver Iron Mining Company, a Minnesota corporation (hereinafter called Oliver).
On July 2, 1917, Niles (in Docket No. 46036), and Niles and the Toledo Investment Company (hereinafter called*33 Toledo) (in Docket No. 46237) which owned certain mineral lands adjacent to those owned by Niles alone, each sold to Oliver 120 acres (a total of 240 *393 acres) of iron ore-bearing lands. The total sales price for each of the properties was computed on the basis of the number of tons of ore estimated to exist in the land at 25 cents per ton, less the royalties paid previously. (The actual cash figures involved in the transaction are deemed irrelevant to this proceeding.) The balance of the purchase price was agreed to be paid by Oliver to Niles, and to Niles and Toledo in the form of promissory notes. All of the promissory notes issued by Oliver were secured by purchase money mortgages from Oliver to Niles, and from Oliver to Niles and Toledo.
Immediately following the issuance of the notes by Oliver, on July 20, 1917, Frederic W. Paine, father of petitioner F. Rodney Paine, acquired a number of the notes in a distribution by Niles to its stockholders. Similarly, Henry H. Myers, husband of Lucy N. Myers, acquired several of the notes prior to his death on September 13, 1931, upon a partial liquidation of Niles and Toledo, in proportion to his ownership of stock in each company. *34 Each stockholder in Niles and Toledo received his share in notes maturing every 6 months in equal amounts for the period during which the lease would have remained in effect had the property not been purchased by Oliver.
Except for amounts and maturity dates each note was the same, as follows:
Duluth, Minnesota, July 20th, 1917
$
On or before after date the OLIVER IRON MINING COMPANY, a Minnesota corporation, promises to pay to the order of THE NILES LAND COMPANY at THE FIRST NATIONAL BANK OF DULUTH, Duluth, Minnesota, without interest until after maturity, Value received.
Oliver Iron Mining Company
Payment of each note was guaranteed by the United States Steel Corporation.
Among the notes received by Frederic W. Paine, one matured on July 20, 1948, and another on January 20, 1949. On December 30, 1935, Frederic W. Paine transferred the two notes by gift in trust irrevocably, to be held respectively in two separate trusts for the benefit of his son, petitioner F. Rodney Paine, and for the benefit of his daughter-in-law, petitioner Anna H. Paine. The trust instrument in each trust provided that the trustee "agrees to use reasonable diligence in the*35 care and custody of the same [the note] until said note is paid and in the collection thereof at maturity and upon its payment or collection to pay over the proceeds thereto * * *" to the beneficiary. These notes have at all times been the only property subject to the two trusts.
The Northern Minnesota National Bank, Duluth, Minnesota, as successor trustee, on July 10, 1948, and on January 10, 1949, transferred *394 the notes due on July 20, 1948, and January 20, 1949, respectively, to the Northwestern State Bank, Duluth, Minnesota, receiving for each note the amount of $ 31,916.40. This amount was computed by reducing the face amount of each note by 3 per cent for the 10 days until the maturity date of the note. These transactions were reflected on the records of the transferee bank as follows:
| July 10, 1948: | ||
| Jan. 10, 1949: | Dr. | Cr. |
| Loans and discounts | $ 31,916.40 | |
| Cashier's checks | $ 31,916.40 | |
| July 20, 1948: | ||
| Jan. 20, 1949: | ||
| Cash | 31,943.01 | |
| Loans and discounts | 31,916.40 | |
| Discount income | 26.61 |
The trustee of the trust for the benefit of F. Rodney Paine deducted $ 239.57 as its fee, and on July 21, 1948, remitted the balance of $ 31,676.83 to petitioner F. Rodney*36 Paine. The basis of the note maturing July 20, 1948, to the trustee was $ 12,526.63 (this was also the basis to Frederic W. Paine and was computed on July 20, 1917, by applying a 5 per cent simple discount rate to the face of the note), 1 resulting in realization of a profit of $ 19,150.20 upon disposition. Petitioners, both cash basis taxpayers, reported 50 per cent of $ 19,150.20, or $ 9,575.10 as long-term capital gain on their joint income tax return for 1948.
The trustee of the trust for the benefit of Anna H. Paine deducted $ 239.57 as its fee, and on January 21, 1949, remitted the balance of $ 31,676.83 to petitioner Anna H. Paine. The basis of the note maturing January 10, 1949, to the trustee was $ 12,405.05, resulting*37 in realization of a profit of $ 19,511.35 upon disposition. Petitioners deducted the trustee's fee of $ 239.57 from 50 per cent of the profit of $ 19,511.35 ($ 9,755.67 minus $ 239.57) and reported $ 9,516.10 as long-term capital gain on their joint income tax return for 1949.
Lucy N. Myers (hereinafter referred to as decedent), who died on July 28, 1938, was the owner by inheritance from her husband, Henry H. Myers, of a group of Oliver notes at the time of her death. These notes were made the subject of the Cecil B. Myers Trust on March 3, 1940, under the will of the decedent.
During the taxable years 1947 and 1948, petitioner Cecil B. Myers Trust transferred the notes as follows: *395
| Date of | Maturity | Face | Amount | ||
| transfer | date | amount | received | Basis | Profit |
| 1947 | 1947 | ||||
| January 11 | January 20 | $ 1,809.31 | $ 1,807.31 | $ 8,635.57 | $ 4,489.86 |
| January 11 | January 20 | 8,988.76 | 8,978.77 | ||
| January 11 | January 20 | 2,341.96 | 2,339.35 | ||
| July 10 | July 20 | 1,809.31 | 1,806.31 | 8,424.93 | 4,706.10 |
| July 10 | July 20 | 8,988.76 | 8,985.76 | ||
| 1948 | 1948 | ||||
| January 12 | January 20 | 1,809.31 | 1,807.80 | 8,219.46 | 4,909.63 |
| January 12 | January 20 | 8,988.76 | 8,981.29 | ||
| January 12 | January 20 | 2,341.96 | 2,340.00 | ||
| July 10 | July 20 | 1,809.31 | 1,807.81 | 8,018.98 | 5,110.14 |
| July 10 | July 20 | 8,988.76 | 8,981.29 | ||
| July 10 | July 20 | 2,341.96 | 2,340.02 |
| Date of | Maturity | |
| transfer | date | Transferee |
| 1947 | 1947 | |
| January 11 | January 20 | Northwestern Bank of |
| January 11 | January 20 | Commerce, Duluth, Minn. |
| January 11 | January 20 | |
| July 10 | July 20 | Northern Minnesota National |
| July 10 | July 20 | Bank, Duluth, Minn. |
| 1948 | 1948 | |
| January 12 | January 20 | Northern Minnesota National |
| January 12 | January 20 | Bank, Duluth, Minn. |
| January 12 | January 20 | |
| July 10 | July 20 | Northwestern State Bank, |
| July 10 | July 20 | Duluth, Minn. |
| July 10 | July 20 |
Each note was endorsed in blank by the trustees.
The basis for determining profit on each group of notes was their fair market value at the date of decedent's death. Fair market value was arrived at by reducing the face amount of each group of notes at the rate of 5 per cent per annum from date of death to date of maturity.
In the 1947 fiduciary income tax return, 50 per cent, or $ 4,597.98, of the profit ($ 4,489.86 plus $ 4,706.10) of $ 9,195.96, realized in the transactions entered into in 1947 was reported. Similarly, in the 1948 fiduciary income tax return, 50 per cent, or $ 5,009.89, of the profit ($ 4,909.63 plus $ 5,110.14) of $ 10,019.77, realized in the transactions entered into in 1948 was reported.
*39 The method of transfer of the Oliver notes held by each of the Paine trusts and the Cecil B. Myers Trust was identical (except for the amounts received) and in each instance the transaction constituted a sale. The increment realized by petitioners in fact represented interest.
OPINION.
The primary issue presented for our consideration involves the determination of whether increment or profit realized in conjunction with the sale of non-interest-bearing notes constitutes ordinary income or is capital gain, upon the facts of the instant case. The trustees of the two Paine trusts and the Cecil B. Myers Trust acquired the notes in the manners set forth in our Findings of Fact. Each note was worth substantially less on the date of issue than the face value at the date of maturity. Ten days before each note matured, a transfer was effectuated and petitioners realized an amount equal to the face value of each note less 3 per cent discount for the 10 days until maturity. The transfers constituted a deliberate and planned effort to comply with the "sale or exchange" requirements of the capital gains provisions to be found in
In determining whether the transactions involved in the instant case constituted "sales" within the meaning of
Each of the non-interest-bearing notes in question was transferred to a bank 10 days before maturity. The transferee bank recorded the transaction by debiting an account designated as "Loans and discounts" and issuing a cashier's check for the face value of the note less 3 per cent, crediting a cash account designated as "Cashier's checks." Mr. Ray Chabot, vice president and trust officer of the Northern Minnesota National Bank, testified concerning the nature and purpose of the transactions, as follows:
Q. * * * Will you tell us in your own words the nature of that transaction?
A. On the date of that transaction we sold the note to the Northwestern State Bank for the cashier's check that was returned to us in payment, and on that date we credited the account for the trust for the proceeds received for the note.
Q. You stated that you sold that note. Was there any agreement implied or otherwise to the effect that under any circumstances you might have acquired title to that note?
A. Not to*42 my understanding there wasn't any. We made an out-and-out sale so far as our intent or approach to the transaction.
Q. It was your intent on behalf of this trust to divest that trust completely of all property in that note by a sale?
A. That is correct.Q. Assuming that you had not desired to sell that note on behalf of this trust but rather to effect its collection at maturity, might your treament of that note been any different than it was?
A. I believe we would have held it to maturity and then presented it across the street for payment on the date it was due.
Q. Do you sometimes use your own bank as a collection agent for receivables in trust?
A. Sometimes, and sometimes from our trust department we send the item out for collection by one of the clerks in the trust department.
*397 Q. In this particular case, however, you negotiated directly with the Northwestern State Bank and, in your opinion, made a sale of that note?
A. That is correct.* * * *
Cross Examination.
Q. Mr. Chabot, what was the purpose of making this transfer of the notes ten days prior to maturity of such notes?
A. The sale was made in order to come in as a sale of capital assets.
Q. In other words, you*43 made this transfer in order to take care of the sale or exchange provisions?
A. We sold the notes specifically intending to comply with the means available to us to obtain a capital gain transaction.
Q. Assuming the notes had been held until maturity, what would have been the effect of the increment in value realized by the trust?
A. I would say that that might be a matter of dispute because under
Q. During the years or since 1917 there have been a good many of these notes in existence in your area, isn't that true?
A. That is true.Q. Have other transactions similar to this taken place with respect to those notes, I mean, specifically, transfers just before maturity?
A. Do you mean with respect to our trust accounts or with people in general in the area?
Q. People*44 in general in the area.
A. I would say in both instances the notes have been sold and disposed of prior to maturity, in some cases several years before maturity; in general, however, very close to maturity.
Q. And then is it common knowledge in your community that an alleged sale or exchange about which you speak is necessary to get capital gain treatment on the increment?
A. I wouldn't say it is common knowledge but I know it's been the practice that has been followed by several people, and I think in connection with these particular accounts the owners had followed that practice prior to the time that this particular trust was created.
Q. Mr. Chabot, how did this matter of making this transfer just before maturity come to your attention?
A. At the time or shortly after the notes were delivered to us we made a tickler out to bring them up with the idea of considering sale, and I think on the 10th of the month the tickler came up so as to give us an ample time to make arrangements for a sale of the notes.
Q. What was responsible for the tickler about which you speak?A. With the idea that the practice had been established of selling notes by other people and we felt that it is our*45 duty to take the most economical way for the taxpayer in handling an account. That was our duty as trustee, not to follow the most expensive route, and we felt that by a sale that we met the qualifications of the capital gain.
* * * *
*398 This testimony was uncontroverted.
Respondent has urged us to find that the transfers of the Oliver notes were not bona fide, and that they did not, therefore, constitute "sales" within the meaning of
Respondent argues that the proceeds of the transfers made 10 days before maturity were in fact loans, and, in support of this view, points to the treatment of the items on the books of the transferee bank. The transferee bank debited an account designated as "Loans and discounts," issued*47 a cashier's check for the face value of the notes less 3 per cent for the 10 days until maturity, and credited a cash account designated as "Cashier's checks." The entries are ambiguous, and the word "discount" could refer either to the purchase of an obligation at less than face value or to an advance deduction of interest in conjunction with a loan. Under the circumstances, the entries have little significance in the determination of the issue before us. Moreover, we have found that the transactions were in fact sales, and "book entries must give way to facts."
The respondent's further contention that the transactions were not normal business transactions because of the very small amount of gain the purchaser would realize was in effect denied by this Court in
We come then to consider the fundamental issue raised in this proceeding, namely, whether the increment or profit realized on the sale of the Oliver notes 10 days before maturity is taxable as ordinary (interest) income, or as capital gain. In
The respondent has determined, in the instant case, that the difference between the basis of the notes acquired by petitioners and the face value of such notes (adjusted to the price at which they were sold just before maturity) was interest in the form of discount. It is our view that if, and to the extent that, this difference in fact represents compensation for use or forbearance of money (as distinguished from other elements, such as marketability, which may *49 likewise be reflected in discount at the time of acquisition) it must be considered interest. The respondent's determination, of course, is presumptively correct and the burden is upon petitioners to show that the increment or profit represents something other than interest.
The respondent supports his position by pointing to the stipulated facts to the effect that the July 20, 1917, value of the notes in the Paine trusts was arrived at by discounting the face amount of the notes on a 5 per cent basis, and that the bases of the several notes held in the Cecil B. Myers Trust were likewise calculated by applying a 5 per cent annual discount rate from the date of decedent's death to the date of maturity. Since the notes did not require annual payments of interest by Oliver, the respondent considers this rate to be a rate of interest agreed upon by the parties to the original sale. He argues that the bases of the notes represent an aliquot portion of the purchase price of the several ore tracts, so that in substance Oliver received the promise of Niles, and Niles and Toledo, to forbear from demanding payment in full of the purchase price of the lands for the period of time until the*50 notes matured. Such forbearance in fact permitted Oliver the unrestricted use of funds equal in amount to the agreed purchase price of the lands.
Petitioners, on the other hand, contend that the aggregate face value of the notes represents the total purchase price of the ore tracts by Oliver from Niles, and Niles and Toledo. In
The cost of the consideration received in exchange for the mine could be no greater than the fair value, at the date of the exchange, of the mine with which *400 they parted. * * * Lacking evidence of the fair market value of the mine, at the date of the exchange, the logical assumption is that the petitioners received value for value. That is to say, that the value of the mine was equivalent to the value of the consideration received therefor. If the value of the mine, at the date of the exchange, is equivalent to the cost of the consideration as well as the value of the consideration, it follows as a necessary corollary that the cost of the consideration is*51 equivalent to the value of the consideration.
Applying this principle to the instant case, the bases of the notes being stipulated (and it being obvious that the notes were not worth their face value on July 20, 1917), we think the respondent is correct in his assertion that the value of the notes issued on the date of sale of the ore tracts to Oliver was the actual purchase price. Any increment realized in excess of basis is taxable and the difference between the face value of the notes and the basis is not explainable as, and could not constitute a portion of, the purchase price.
Petitioners make the further contention that the difference between a cash price and a deferred payment price, represented by notes issued in conjunction with a sale of property on a deferred payment plan, may not be considered interest or discount, citing
Under the circumstances we think that the increment in value of the Oliver notes represents compensation to the petitioners paid by Oliver for the use of petitioners' capital (forbearance on Oliver's debt) until the notes matured, and was intended as a payment of interest (discount) at a simple 5 per cent rate by Oliver to Niles, and Niles and Toledo, or their successors. This increment comes within the definition of gross income under
We first consider the question of whether the sale by petitioners of the Oliver notes effectively altered the nature of the increment realized. If the notes had been held and redeemed at maturity, there would have been merely a collection of a debt which would not have constituted a sale or exchange. Any increment realized would have been taxable as ordinary income.
*401 Petitioners assert that our holding in
The decisive question is whether the amount received by the taxpayer falls within
* * * *
Clearly $ 20,000 was the amount received on the retirement of the certificate, and under the plain wording of
The effect of the holding in the Caulkins case is, therefore, that any increment realized on the retirement of an obligation which qualifies within the meaning of
We think it is clear, that the decision*55 in the Caulkins case was based solely upon the precise language of
The support, if any, for petitioners' contention must be found in
We have already found that the increment in the instant case in fact represented interest, and it is clear that it should be taxed as ordinary income unless the provisions of
In the light of the foregoing, it is our view that the Caulkins case is clearly distinguishable from the case before us.
Petitioners argue that the Oliver notes were property within the meaning of
It is generally recognized that a right to payment arising from the ownership of property is income, and while also a form of property, it is not such a capital asset that can be sold to achieve a capital gain. Amounts received in anticipation of income, or in lieu of accrued rights to income must stand in place of the income that would otherwise have resulted and be taxed accordingly.
It is immaterial that the notes were in some sense single pieces*58 of property. The form of obligations is not determinative of their real nature for Federal income tax purposes. Only a part of the obligations represented a capital investment, and no part of the increment represented a natural increase in capital. The increment, representing *403 payment for the use of the capital investment, in effect promised in a lump sum upon maturity, is calculable, and is easily severable from the underlying capital investment. Cf.
The "original issue discount" reflecting interest and realized on sale before maturity is closely analogous to that of the sales price representing accrued interest*59 in the case of a bond sold between interest dates, which is treated as ordinary income. Cf.
It is our conclusion that the sale of the right to interest income merely accomplished, prior to maturity, the realization of income rights which, if they had been permitted to mature, would have constituted ordinary income. We hold, therefore, that the increment so realized is to be taxed as ordinary income.
It is unnecessary, in the light of the foregoing, to consider respondent's further contention that the profit realized by petitioners was taxable as rents or royalties within the meaning of
Decisions will be entered under Rule 50.
Murdock, J., concurring: The statement of the issue is "whether the increment or profit realized upon the sale, 10 days prior to maturity, of certain non-interest-bearing notes originally issued on a discount basis for substantially less than their face value, is taxable as ordinary (interest) income, or as capital gain." It may be assumed from this statement and from the findings as to bases that a portion of the purchase price was to be paid in notes on which no interest was specified but the face amount of the notes was to include interest and was arrived at by computing interest at 5 per cent to the date of maturity of the notes and adding it to the principal amount owed on that portion of the purchase price. The amount thus added was, and was intended *404 to be, discount, the equivalent of interest, to the extent to which it would ultimately be received by the seller-creditors. The latter chose not to hold the notes to maturity but transferred them to a third party 10 days prior to maturity for an amount slightly less than the face amount of the notes. The excess thus received over*61 the bases of the notes was a realization by the petitioners of the discount involved in the original delivery and receipt of those notes. That discount was the equivalent of interest for the forbearance with respect to that part of the purchase price and is taxable in full as interest.
Footnotes
1. For example, the July 20, 1917, value of the note due on July 20, 1948, in the face amount of $ 31,943.01 was computed by multiplying 5 per cent times $ 1 for 31 years arriving at a result of $ 1.55. This amount, $ 1.55, plus $ 1, or $ 2.55, divided into $ 31,943.01 equals $ 12,526.63.↩