UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided on reargument: July 17, 1944.
BUDD INTERNATIONAL CORPORATION
COMMISSIONER OF INTERNAL REVENUE.
MARIS, Circuit Judge.
Upon rehearing the taxpayer urged that the reasoning upon which we held that it was entitled to credit to the extent of the sinking fund in computing its undistributed net income also entitled it to a credit to the extent of the preferred dividends in default, plus two additional semiannual preferred dividends. In support of this contention the taxpayer calls attention to a paragraph in its amended articles of incorporation and preferred stock certificates which reads:
"The holders of preferred stock shall be entitled to receive, when and as declared by the board of directors, out of the surplus or net profits of the corporation, cumulative dividends at the rate of $3.50 per annum and no more payable semi-annually on the last days of June and December in each year, before any dividend shall be paid or set apart upon the common stock. Dividends on the preferred stock shall be cumulative * * *
"In no event so long as any of the preferred stock shall be outstanding shall any dividend whatever be paid or declared or any distribution made upon the common stock, nor shall any common stock be purchased nor shall any distribution of capital be made to the holders of common stock until after the full dividends on the preferred stock for all past semi-annual dividend periods shall have been declared and a sum sufficient for the payment thereof set apart and full provision for the sinking fund, both current and accumulated, shall have been made."
The contention disregards both the spirit and the letter of the statutory provision upon which it is based. When Congress imposed a surtax upon the undistributed net income of a corporation*fn1 one of its major purposes was to prevent the avoidance of surtaxes by individual stockholders achieved by the accumulation of income by the corporation.It was thought that the imposition of the surtax upon the corporation would serve to compel the distribution of corporate profits to the stockholders in order to avoid the heavy surtax. In order to avoid injustice to those corporations which could not legally pay out profits by way of dividends because they were by contract prohibited from so doing it was provided in Section 26(c) of the Act that the undistributed net income of a corporation subject to surtax should be reduced by the amount of net income which its contracts either prohibited it from distributing to its stockholders in the form of dividends or directed it to apply in payment of its indebtedness.
It follows, therefore, that when a corporate taxpayer was under contractual obligation prior to May 1, 1936 to pay a portion of its profits into a sinking fund which it might not use for the payment of dividends it was entitled to an equivalent reduction in the amount of its undistributed net income subject to surtax.On the other hand, a charter provision such as the one upon which the taxpayer now relies, which merely provided that in making distribution of profits the corporation must first meet its dividend obligation to one class of stockholders, the preferred, before it paid any dividends to another class, the common, was not a prohibition against the payment of dividends but simply an intracorporate agreement as to priorities in their payment.It will be noted that the language of Section 26(c) makes no distinction between the payment of dividends to the preferred and to the common. The provision of the preferred stock certificates upon which the taxpayer relies does not contain any prohibition against the payment of dividends upon the preferred stock and the prohibition against the payment of dividends on the common stock involves only the profits which the holders of the preferred stock are entitled to receive under their preference. It follows that the taxpayer is not entitled to any credit by reason of the quoted provision.
The taxpayer also urged on re-argument that we were wrong in holding that it had failed to establish by the evidence the cost to it in 1930 of the Pressed Steel common shares. We held that the cost of these shares to the taxpayer in 1930 was the value of the taxpayer's common stock which it issued in exchange for them and that since its newly issued common stock had no market value at that time its value might be ascertained by establishing the value of the property for which it was issued. This rule has frequently been applied where a newly organized corporation issues all its stock for assets the value of which can be shown. In such a case the stock, although not yet dealt in on the market, may be taken as having a value equal to that of the property for which it has just been issued. We pointed out, however, that in the present case 360,000 shares of the taxpayer's common stock were issued in a block for a group of properties consisting not only of the Pressed Steel common shares, as to the value of which there was evidence, but also of the Pressed Steel preference shares, shares of Ambi-Budd common stock and a heterogeneous collection of other European assets of the Manufacturing Company, as well as an agreement by the Manufacturing Company to perform future services in the operation of licenses, contracts and patent processes, the value of most of which was not shown by the evidence.
We held that since the value of a substantial portion of the assets received as consideration for the issuance of the block of 360,000 shares of the taxpayer's common stock was not shown the factual basis for the application of the rule was absent. We also held that even if this point should be ignored the rule could still not be applied since the proportion of the 360,000 shares of common stock which were issued for the Pressed Steel common shares and the proportion issued for the other assets was not shown. However, we did not point out another difficulty in applying the rule in this case.This difficulty arises from the fact that in addition to the 360,000 shares of the taxpayer's common stock to which we have referred, 76,572 additional shares were issued at the same time along with 76,572 shares of the taxpayer's preferred stock for a wholly independent consideration of $3,350,025 in cash. The difficulty is that the allocation of this payment between the preferred and common shares was not clearly shown by the evidence.
The taxpayer urges that these difficulties are more apparent than real; that since the value of the Pressed Steel common shares is shown by the evidence it may fairly be presumed that whatever shares of the taxpayer's common stock were issued for the Pressed Steel common shares must have had the same value as those shares. But this argument ignores the fact that we are seeking to determine the price which the taxpayer paid for the Pressed Steel common shares and not the value of those shares at the time of purchase. If the taxpayer's entire issue of common stock had been given for the Pressed Steel common shares alone the two figures might fairly be presumed to have been identical, as the taxpayer suggests. But if, as was the case, shares of the taxpayer's common stock were issued at the same time for many different assets, the assumption which the taxpayer makes is no longer likely to be valid. We cannot assume that all these assets were purchased at their exact market values, even if we assume that they had such values. On the contrary some of them may have been acquired for less and others for more than their market values, in which case the price paid - the shares of taxpayer's common stock issued for the particular asset - would have been worth more or less than the asset purchased. This necessarily follows from the fact that all shares of corporate stock of the same class are wholly interchangeable since they have the same rights, privileges and voting powers and that when it issues particular shares the issuing corporation does not give them a special lien upon or claim against the particular assets for which they were issued or any other particular assets of the issuing corporation. Each such share, therefore, must inevitably have exactly the same value as every other share of its class. It will thus be seen that if we are to apply to the taxpayer's situation the rule which we have been discussing we must ascertain the value of each individual share of taxpayer's common stock at the time it was issued by determining the aggregate value of all the assets received for the entire issue of common stock and dividing that sum by 436,572, the total number of shares issued. The cost of the Pressed Steel common shares could then be determined by multiplying the number of shares of the taxpayer's common stock which were issued for those shares by the value of each share as thus ascertained. It is clear that the cost thus determined will equal the value of the Pressed Steel common shares only if all the shares of the taxpayer's common stock were issued in strict proportion to the values of the assets received for them, that is, if I share was issued for property worth , 76,572 shares for property worth $76,572x, and 360,000 shares for property worth $360,000x.
What we have said makes it apparent that upon this record it is impossible to determine the cost of the Pressed Steel common shares by the use of the rule which the taxpayer seeks to apply. We cannot determine the value of the individual shares of the taxpayer's common stock at the time of their issuance since there is no evidence as to the value of a large part of the assets for which that stock was issued.The taxpayer, however, strongly urges that although it has not established the value of all the property for which its common stock was issued it has presented evidence from which the value of a substantial part of that property, the shares of the Pressed Steel Company, may be ascertained, and that its shares of common stock were undoubtedly worth at the time of their issuance at least as much as the Pressed Steel shares which were received in exchange for some of them. Accordingly, says the taxpayer, it should be entitled to the benefit of the minimum or partial value thus established.
There is a certain plausibility to this contention but upon analysis it will be seen to be unsound. For even if it should be found from the evidence that each share of the taxpayer's common stock had a minimum value of we cannot ascertain from the evidence how many shares having that minimum value were issued for the Pressed Steel common shares and how many for the other assets purchased with the block of 360,000 shares. If the evidence showed the value of each of the assets purchased by the issuance of this block of stock we might perhaps be justified in indulging the presumption that the shares were issued proportionately to value; for example, that 260,000 shares were issued for the Pressed Steel common shares which were worth $260,000y and that 100,000 shares were issued for all the remaining assets which were worth $100,000y. In the absence, however, of any evidence as to the value of the other assets for which the 360,000 shares were in part issued we are left without data essential to the solution of our problem. For we cannot assume that all 360,000 shares were issued for the Pressed Steel common shares and that the remaining assets were donated to the taxpayer without any consideration in common stock.Without some such assumption we have no way of telling how many shares of its common stock the taxpayer paid for the Pressed Steel common shares which it bought in 1930. We accordingly adhere to our conclusion that the Board rightly held that the taxpayer failed to prove the cost of the Pressed Steel common shares.
The judgment heretofore entered will stand as the judgment of the court.