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NEWARK MORNING LEDGER CO. v. UNITED STATES

July 16, 1975

Newark Morning Ledger Company, Plaintiff,
v.
United States of America, Defendant



The opinion of the court was delivered by: BIUNNO

 Nature of Action

 This is a suit to recover federal income taxes assessed by deficiency and paid, with interest, under protest. A single question is involved, namely, whether litigation and other legal expenses incurred for the years involved were properly deductible against income as ordinary expenses in the operation of a business or whether these costs represent a capital expenditure which form part of the cost basis of acquiring a newspaper business in Springfield, Mass.

 There is no dispute that the costs were incurred, and no dispute about their amount. The dispute involves only the correct treatment of the costs for income tax purposes.

 A stipulation of facts has been prepared and agreed to, accompanied by authenticated exhibits. Both parties have moved for summary judgment. On each motion the sole question is whether, on the basis of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R. Civ. P. 56 (c).

 Facts as Stipulated

 Samuel I. Newhouse owns all of the voting stock of Advance Publications, Inc., which owns various newspapers throughout the United States, one of them being the Newark Morning Ledger Co. (Ledger), a wholly owned subsidiary, and the plaintiff here. (Stip., par. 7)

 [The court will take judicial notice that the Ledger is New Jersey's only statewide newspaper, both on weekdays and Sunday, as well as its largest, having surpassed its major competitor, The (Newark) Evening News and Sunday News (the latter being a successor of the Newark Sunday Call) in circulation and advertising before the latter's demise after a protracted strike during the last decade. Fed. Rules of Ev., Rules 201(b)(c).]

 In 1960, the Republican Company, a Massachusetts corporation, owned two operating newspaper subsidiaries (Republican Publishing Company and Springfield Union Publishing Company) which published three newspapers in Springfield, Mass.: two daily papers and a Sunday paper. (Stip., par. 5)

 At that time, there were 177 shares of common stock of Republican outstanding. Of these, 23 shares (13%) were owned by pension funds for the employees of the newspapers (Funds). Another 74 shares (42%) were owned by collateral relatives of the Bowles family (Cousins), and the remaining 80 shares (45%) were owned by the family of the deceased publisher, Bowles (Family). (Stip., par. 6)

 The 80 shares of Family stock were held in 1960 in a voting trust set up by a 1952 agreement between Family and Funds, to pool their combined 103 shares for 15 years. Control was in the trustees of Funds, who were also directors, officers and employees of Republican and the operating companies. (Stip., par. 6)

 Following a proposal from a representative of the Cousins, Newhouse became interested in an acquisition, and following negotiations, two transactions ensued:

 (a) purchase by Ledger of the Cousins' 74 shares at $25,000 a share ($1,850,000) on June 6, 1960;

 (b) an agreement by Ledger to purchase the Family's 80 shares, the shares to be received at termination of the voting trust in 1967, at $21,000 a share ($1,680,000), which was deposited in a Boston bank on June 17, 1960 against delivery of the stock. (Stip., par. 8, 9, 10)

 Subject to the voting trust, Ledger thus came to own the beneficial interest in 154 shares (87%) of all of the outstanding stock of Republican. The remaining 23 shares (13%) remained in the ownership of the Funds. (Stip., par. 11)

 On June 17, 1960, Newhouse met Cook (an officer of Republican) in New Haven, told him of the purchase and arranged for an announcement in the evening Springfield paper that day, which was done. (Stip., par. 13)

 On the following Sunday, an editorial appeared in the Sunday Springfield paper, which was critical of the paper's acquisition by "outside interests". (Stip., par. 13)

 As a result, Newhouse asked for a meeting which was held in New York. Newhouse was told he should sell the stock, and he refused. A request to tour the newspaper plants at an early date was put off. Requests were made to examine books and records and to be given financial information, but these were denied. (Stip., par. 12, 13, 14, 15)

 Ledger thereafter filed, or caused to be filed, a flurry of lawsuits in Massachusetts. Two were in federal court and four in the state courts. The complaints are part of the stipulation as Exhibits A through F. (Stip., par. 16)

 Extended hearings by masters were conducted in both courts, and after review of the State court's proposed disposition, a settlement was achieved that resolved all the litigation. (Stip., par. 17, 18)

 The aggregate legal fees and expenses incurred by Ledger from fiscal 1962 through 1967 are stipulated, as are the amounts assessed and paid as deficiencies plus interest, for which refund is claimed. (Stip., par. 19 through 42)

 In the Stipulation, the United States explicitly refused to stipulate the "purpose" for which the litigation was initiated and processed, or the " gravamen" of each lawsuit. (Stip., part II, par. 1 and 2)

 Similarly, Ledger explicitly refused to stipulate that Newhouse was told, before buying the Family stock, that there had been trouble with management about dividends and about access to books and records, and that Newhouse would be "buying a lawsuit" in these respects. Also, Ledger would not stipulate that Newhouse was told that the reason why Family and Cousins wanted to sell was their feeling of denial of a management voice and unfair treatment by management.

 Treatment of Facts Not Stipulated

 The court has examined the pleadings, as well as the discovery depositions of Samuel I. Newhouse, Sidney R. Cook, and Donald E. Newhouse, and the depositions de bene esse of Francis T. Bowles (Family interests) and William H. Baldwin (Cousins interests).

 From these materials, as well as from Exhibits A through F of the Stipulation it is plain that Ledger's "purpose" in the litigation, as well as the "gravamen" of each lawsuit, are matters of law for the court to determine from inspection of the complaints filed.

 If "purpose" is a pertinent element, it can only be considered in the ostensible or objective sense. Subjective purpose, as a state of mind, cannot have any bearing on the key issue here. Even if it were, the materials indicate that it would be impossible to compose a collective state of mind for the individuals who participated: Samuel I. Newhouse, the primary figure, his son, Donald, who was involved on a day-to-day basis, house counsel and Massachusetts counsel.

 The same observation is true of the "gravamen" of the suits. This is a matter of legal evaluation and interpretation from the authenticated documents, and a study of them discloses that there is no genuine issue of fact in regard to their "gravamen".

 The facts which the United States sought to have stipulated, and which the Ledger declined, are not undisputed facts largely because they are only part of the facts developed on discovery and de bene esse. Taken alone, to the extent there is some testimony to support them, they would not provide a fair basis for ruling on the motions.

 Taken together with other contextual testimony, a somewhat different pattern emerges.

 Accordingly, the court has approached the motions by considering whether these fact items not stipulated are facts having a legal consequence in arriving at a decision. If they do, then being disputed both motions would need to be ...


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