United States v. Phellis

Citations

• 57 Ct. Cl. 593
• 56 Ct. Cl. 157

Syllabus

<p>Substance and not form should control in the application of the sixteenth amendment and the income tax laws enacted under it.</p> <p>The income tax law of October 3,1913, in declaring that the tax shall be laid on gains, profits, and income derived from dividends, means, not that everything in the form of a dividend must be treated as income, but that income derived in the way of dividends shall be taxed.</p> <p>Income defined as in Eisner v. Macomber, 252 U. S. 189.</p> <p>With the concurrence of 90 per cent of the stockholders of a corporation, a plan of reorganization was effected, pursuant to which a new corporation with an'authorized capital stock nearly four times as great in par value as the aggregate stock and bonded indebtedness of the old was formed under the laws of a different State, all the assets of the old were transferred to the new, as a going concern, including the good will and a large surplus, and, in consideration, the old corporation retained money enough to redeem part of its bonds and received (1) the new company’s debenture stock of par value sufficient to redeem the remainder, retire its own preferred stock and leave in its treasury an amount equal in par value to its own outstanding common stock, and (2) the new company’s common stock of par value double the amount of the old company’s outstanding common stock, which the latter immediately distributed to its common stockholders as a dividend, paying them two shares of the new for each of the old. Upon completion of the transaction, October 1, 1915, the personnel of the stockholders and officers of the two corporations was identical, the stockholders having proportionate holdings in each; but less than one-half of the new company’s authorized stock had been issued. Thereafter, the old corporation continued as a going concern, but, except for the redemption of its bonds and retirement of its preferred stock, and the holding of the debenture stock equal to its common, and collection and di