Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
We are presented on this appeal with the not uncommon question whether the gain realized by the shareholders of a corporation upon a partial redemption of their stock is taxable as long-term capital gain, or is taxable as ordinary income under the provisions of Section 117(m) of the Internal Revenue Code of 1939, 26 U.S.C.A. (I.R.C. 1939) § 117(m), the collapsible corporation section.
The facts as found by the Tax Court were stipulated in part.This proceeding, in which five cases have been consolidated, involves alleged deficiencies in income tax for the taxable year 1950.*fn1 Sam Madwa y Ralph K. Madway and Harry K. Madway are brothers, and Elizabeth M. August and Pauline Margolis are their sisters.*fn2 Hereinafter these five will be referred to as petitioners.
Harry K. Madway has been engaged in the building business since 1928, first as a construction superintendent and from 1936 as a principal. With the exception of a three-year period during the war when he acted as a consultant to the federal government on housing construction, he has been so engaged continuously. Among the construction projects superintended by him during the former period were two large apartment houses. In addition, in 1943 he purchased an apartment house which he has since owned and operated.His brother Sam Madway was a registered civil engineer, and his brother Ralph had acquired substantial experience in construction work.
Petitioners organized the Camden Housing Corporation (Camden) under New Jersey law on July 26, 1945, with the petitioners as its sole stockholders. Initially it was capitalized for $1,000 represented by 500 shares of no-par common stock. In October, 1947, Camden's charter was amended to authorize preferred stock and two classes of common stock. Other than the fact that all voting rights were vested in the Class A common stock, the attributes of the two varieties of common stock were identical. The common stock was divided among the stockholders as indicated in the margin.*fn3 The cost basis of both classes of common stock was $2 per share.
Camden's charter authorized it to buy, sell, build, own, lease, and operate real estate, and shortly after its incorporation it purchased a tract of partially improved land in Camden, New Jersey. The tract, which was sizeable, was purchased for approximately $40,000. During the ensuing two years Camden proceeded to construct 126 row houses on a portion of the tract and succeeded in disposing of the last of them during the middle of 1947.
Camden then embarked on the development of the reserved portion of the tract which was regarded by petitioners as a suitable site for the construction of apartment houses to be held for rental purposes. Inasmuch as the federal housing program under Section 608 of the National Housing Act, 12 U.S.C.A. § 1743, offered means for the very favorable financing of such projects, petitioners sought and procured Federal Housing Administration (FHA) approval of the Camden tract for the construction of apartment houses. The FHA regulations as they then existed provided mortgage loan insurance on rental housing projects in an amount equal to 90 per cent of the amount which the FHA commissioner estimated would be the necessary current cost of the completed project.*fn4
This estimate included the cost of the land, the proposed physical improvements, utilities within the boundaries of the project, architects' fees, taxes and interest accruing during construction, and other miscellaneous charges incidental to construction. In October, 1947, Camden undertook construction of twelve groups of apartment houses, to be known as the Washington Park Apartments, pursuant to the provisions of Section 608 of the National Housing Act. Although neither the dates nor amounts of the twelve applications made to FHA for commitments for mortgage loan insurance are shown, the Tax Court found that "Camden did seek to procure commitments for mortgage loan insurance for the largest mortgage loans permissible under the statute."
In arriving at its estimates of replacement cost for mortgage loan insurance purposes, it was the practice of the FHA to include a five per cent builder's fee and a five per cent architect's fee, and such fees were included by Camden in its applications. Included in the estimates of replacement costs on the total complex of apartment houses were $106,718 for land, $100,120 for builder's fees, $105,124 for architect's fees, and $17,150 for legal and organization expenses. The total estimate of the replacement cost amounted in the aggregate to $2,427,912, and after reduction to 90 per cent and application of other limitations the FHA issued commitments for mortgage loan insurance in the total amount of $2,154,600. Accordingly, Camden proceeded to procure construction loans from various banks.*fn5
The construction of the entire apartment house complex was supervised by Harry, Sam, and Ralph Madway. Camden did its own brick and plumbing work, the former being handled by Ralph and the latter by Sam. Camden incurred a builder's fee of only $21,027 in the construction, that fee being paid to Madway Construction Company or Madway Engineers and Constructors. The architect's fee incurred and paid by Camden was $16,787.32. The total cost of construction for the Washington Park Apartments was $1,935,123.72, which when added to the cost of the land utilized by Cam dn brought the total cost of the project to $1,962,309.16. This left $216,654.08 remaining in unexpended mortgage loan proceeds. These funds were retained by Camden and not applied in reduction of the outstanding mortgages on the Washington Park Apartments because, the Tax Court found, "they were regarded by petitioners as much more valuable to them as working capital in order to produce income in other enterprises." Other than the rental of the apartments as they were completed, the construction of the Washington Park Apartments was Camden's sole activity after 1947.
Following completion of construction, Camden had the apartment project appraised and in accordance with the appraisal resolved to write up the value of Washington Park Apartments to $2,256,165.50. Thus a revaluation surplus of $361,057.48 was created.
At the time of Camden's incorporation in 1945, petitioners also acquired a tract of land, known as Merion Park, with a view to its future development. Following completion of the Washington Park Apartments, petitioners organized Merion Homes, Inc., and proceeded to make specific plans for the development of Merion Park. It was to consist of Colonial style, detached, masonry homes, in the "$20,000 price class" to be financed by conventional mortgages. After completion of several sample houses, the development was opened in the middle of 1950. The sales response was very satisfactory. Since the project was not FHA-sponsored, additional working capital was needed to take advantage of the healthy market.
On December 29, 1950, Camden redeemed fifty per cent of its outstanding Class A and Class B common stock and distributed to petitioners $205,000*fn6 of the unexpended mortgage loan funds. This amounted to $410 for each share of Camden common stock redeemed. Thereafter, petitioners loaned all of the distributed funds ...