On Petition for Review of Decisions of the United States Board of Tax Appeals.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
The respondent determined deficiencies in the income tax of the petitioners, Charles G. Berwind and Edward B. Creighton,*fn1 for the years 1936 and 1937.*fn2
The question presented for our determination is whether Berwind and Creighton were the equitable owners of certain securities during the taxable yeas 1936 and 1937, so as to be taxable on the income from, and the capital gains realized from trading in the securities, pursuant to the provisions of Section 22 of the Revenue Act of 1936, c. 690, 4. Stat. 1648, 26 U.S.C.A. Int. Rev. Acts, page 825.*fn3
The alleged deficiencies result from transactions by Berwind and Creighton which began in 1931. At that time Creighton and Berwind*fn4 and Thomas Fisher were stockholders of the Penn Colony Trust Company of Philadelphia. The capital of the trust Company was impaired due in part to the fact that certain securities owned by it and carried on its books at a value of $250,941.29 possessed in fact a market value of only half that amount. This condition had been called to the attention of the Trust Company by the Banking Department of the Commonwealth of Pennsylvania and it is to be inferred that one of the factors which leld to the transactions of Berwind and Creighton or thosle acting for them was the impairment of the capital of the Trust Company.
In August 1931 the Trust Company received a check in the amount of $125,416.14 from Mrs. Creighton. This amount was credited by the Trust Company to its stock account in its general ledger. On September 10, 1931, the Trust Company received instructions from the Berwind-White Coal Mining Co. to charge its savings account with the amount of $125,525.15. This was done. As a result the capital impairment of the Trust Company was repaird to the extent of approximately $125,000.
On September 22, 1931 the board of ddirectors of the Trust company adopted a resolution which approved the sale of the securities to Creighton for a price of $250,941.29 and the officers of the Trust Company were ordfered to transfer te securities to Creighton. On October 26, 1931, however the board of directors adopted a second resolution which corrected that of September 22, 1931. The second resolution recited that Creighton, acting for himself and others, had offered to purchase at the original cost to the Trust Company, half of the securities for the sum of $125,416.15; that this offer was accepted and that these securities were to be conveyed to him. The correcting resolution also stated that the Berwind Company had paid $125,525.15 for the purchase of certain securities having a cost to the Trust Company in the amount stated and that these securities also were to be transferred to Creighton.
On November 23, 1931, an agreement, relating to the securities referred to in the last resolution as having been apaid for by the Berwind Company, was entered into between Berwind, Creighton and D. Vincent johnston as trustees, Berwind, Creighton and Thomas Fisher, individually, and the Berwind Company. The agreement recited that the Berwind Company had "advanced" to the trustees the sum of $125,525.15 to enable them "to purchase" the securities enumerated on a list attached from the Trust Company.*fn5 The agreement provided that the trustees should liquidate the securities and apply the proceeds with any income which had accrued to the payment of the sum of $125,525.15 advanced by the Berwind Company, with interest. The contract further stipulated that when the sum due the Berwind Company had been paid with interest, any balance remaining from the sale of the securities and the income from them, was to be paid to Berwind, Creighton and Fisher in proportion to their several interests in the obligation which they assumed by the agreement to reimburse the Berwind Company. It was agreed further, if the amounts received from the liquidation of the securities with the income from them was insufficient to repay the Berwind Company the sum advanced by it with interest, that Berwind, Creighton and Fisher would pay any balance according to the following percentages; viz., Berwind, 27.78%, Creighton, 16.66% and Fisher, 27.78%. Finally the agreement provided that the liquidation of the securities was to be completed by the trustees no later than August 26, 1934 unless the Berwind Company consented to an extension.
On August 26, 1934, the parties entered into another agreement amending and extending the prior agreement. The second agreement provided that any money received by Berwind, Creighton and Fisher as stockholders or as depositors in the Trust Company, which was then in course of liquidation, should "be held" by the Berwind Company as additional security for the payment of obligations of the three individuals named to reimburse the Berwind Company.
In 1940 the Berwind Company notified the trustees to sell all of the securities then in their possession and pay the proceeds to the Berwind Company. $47,394.7, was realized from these sales. The trustees paid $45,000 to the Berwind Company but retained the balance to cover expenses. The sum of $45,000 constituted the entire amount realized by the Berwind Company from the sale of the securities.
Thereafter, Berwind received $5,549.10 from the liquidati on of the Trust Company; Creighton received $1,508.32 and Fisher received $6,280.14. These sums also were paid to the Berwind Company.
In 1940 on receipt of bills sent by the Berwind Company, Berwind and Creighton's estate paid respectively to the Berwind Company the sums of $16,155.52 and $11,50,.20. 508.20. The bill sent to Berwind had the following notation.*fn6
The commissioner found that the income received by the trustees was $8,407.60 in 1936 and $4,466.97 in 1937 and treated Berwind, Creighton and Fisher as adventurers in a joint enterprise in respect to the securities, and considered Berwind and Creighton as the equitable owners of the securities as we have already indicated. The Commissioner accordingly included in his notice of income-tax deficiency to Berwind 38.4658% of $8,407.60 or the sum of $3,234.05 for 1936, and the sum of $1,718.26 for 1937. Similarly the Commissioner included in ...