McCandless v. Commissioner

dissenting: As the only two members of the Board who heard all of the testimony in this appeal, we feel it incumbent on us to express our opinion that the satisfactory evidence in this appeal does not justify the decision of the Board. It is true that certain incidents disclosed by the record may be considered as raising suspicions, but, on the other hand, these same incidents are susceptible of a different interpretation. From the conclusions formed by us, after hearing all of the testimony and seeing the witnesses on the stand, we do not believe the evidence sufficient to support a finding that the sale from the taxpayer to Bockus was not tona fide, or that the taxpayer was guilty of fraud.

The Commissioner relied upon the testimony of two revenue agents for the purpose of impeaching the testimony of Bockus. We are agreed that it is too evasive and too contradictory to be worthy of belief. As we observed their conduct on the witness stand, we were impressed with the belief that they were overanxious to convict the taxpayer and too willing to make damaging deductions from small incidents. But apparently some weight has been given their testimony in the prevailing opinion, which refers to the testimony of “ other witnesses ” than McCandless and Bockus.

Regarding the sale, the evidence shows beyond a doubt that the stock was assigned and the note was given in December, 1921, that the price was fair, that Bockus took the stock into his possession, had it transferred to his own name, and held the certificate therefor in his own possession and control until he was required to surrender it to the trustee of his estate in bankruptcy. There is no evidence that Bockus held the stock in the capacity of trustee or agent for the taxpayer. On the contrary, we have absolute denials of such relationship from both the parties. There is no evidence to show that the taxpayer exercised or attempted to assert any control over or right to possession of the stock after its delivery by him to Bockus. The fact that Bockus had frequently acted as broker in the purchase or sale of securities for the taxpayer raises no presumption that in this case he was not operating on his own account. Nor do the incidents of Bockus going into involuntary bankruptcy, without *8setting forth the stock in question in the schedule filed by him, or of the taxpayer failing to file a claim in bankruptcy on the note held by him, raise any presumption of the relationship of trustee and trustor between them. The individual actions of Bockus should not be permitted to reflect on the actions and attitude of the taxpayer, unless collusion was proven, which it was not.

Bockus was declared an involuntary bankrupt on the petition of creditors in Honolulu, while he resided in San Francisco. The schedule was prepared in Honolulu and sent to Bockus, and he signed it as thus prepared. Other assets and liabilities were omitted from the schedule, including Bockus’ home in Honolulu and debts due from him secured by mortgage thereon. Many creditors fail to file claims in bankruptcy where the futility of collection is apparent, and there is no reason to distinguish the taxpayer from other creditors. It must be borne in mind that the taxpayer was traveling about the United States on matters wholly unrelated to his business in Honolulu during all of the period over which the so-called suspicious circumstances were spread, and he was paying little or no attention to his affairs at home. This circumstance might more readily account for his failure to demand payment of the note from Bockus than as assumed evidence of Bockus being agent for the taxpayer.

The payment by the taxpayer of the assessment on all of the stock owned by Bockus was not, in our opinion, evidence of other than a generous and over-indulgent attitude on the part of the taxpayer toward the man he considered as a friend. Apparently, these loans were made as a matter of course, without any thought of the status of the stock ownership. The taxpayer loaned money to others, who never had purchased any stock from him, with which to pay these same assessments. It may be that Bockus was unworthy of this friendship, but his conduct, unless in collusion with the taxpayer, should not influence the decision of this appeal.

Stress is laid upon the financial condition of Bockus. All of the evidence in the appeal is to the effect that, in December, 1921, when the transaction took place, Bockus was solvent, although pressed for cash to use in his business. It was not until a year later that bankruptcy proceedings were instituted, and this came about by reason of the failure of a company in which Bockus was financially interested.

We believe that from the evidence the transaction between the parties was a sale and that the taxpayer is entitled to the deduction claimed. We further believe that there is no evidence to warrant any finding of fraud.

*4OPINION.

The taxpayer, in his income-tax return for 1921, took as a deduction a loss in the amount of $67,721.20 on account of a sale of 159,344 shares of stock to Bockus. The Commissioner disallowed any loss on that account, upon the ground that there was in fact no sale of the stock referred to. The taxpayer at the hearing conceded that the amount of the loss claimed was erroneous and that, if he was entitled to any loss, the amount thereof was $58,823.84, because the cost of the stock transferred, and which the taxpayer claims that he sold, was less than the cost which he asserted in his return.

The Commissioner asserts that the transfer of the stock by the taxpayer to Bockus in 1921 was nothing more than a pretended sale, not an actual bona fide sale, and that the transaction was entered into for the purpose of evading the payment of tax. The taxpayer admits that the transaction was entered into because he *5desired to take a loss for the purpose of deducting the same in his return for the year 1921. If the transaction amounted to an actual sale of the stock, the admission by the taxpayer that it was consummated for the purpose of realizing a loss during that taxable year, in order that he might deduct the same in his income-tax return, is perfectly legitimate and sets forth an intention which is legal and which gives rise to no fraud or illegal intent.

A taxpayer is not entitled, under the statute, to take a loss merely because stock or securities during a taxable year shrink in value, unless the loss is actually realized by a sale or other disposition of such property. It is perfectly legal and proper for a taxpayer to sell such assets at a price representing their reduced value and thus to sustain a deductible loss which is allowed him by the statute. United States v. Isham, 17 Wall. 496; Appeal of The Pennsylvania Co., etc., 2 B. T. A. 48; Appeal of Benjamin T. Britt, 2 B. T. A. 53; Appeal of Harold B. Clark, 2 B. T. A. 555.

The question now resolves itself into a question of fact, and that is, whether the taxpayer actually sold the stock in question during the taxable year, or whether the transfer of the stock to Bockus was carried out for the purpose of taking a deduction on account of a loss which had not in fact been sustained. In order to determine whether there was an actual sale or merely a pretended one, it is necessary to look at all facts and circumstances in the case and to consider and weigh all the evidence.

The taxpayer testified that he sold the stock to Bockus, and Bockus testified that he bought it. The taxpayer and Bockus, however, testified to other facts, and we have the testimony of other witnesses. There were facts and circumstances in connection with and surrounding the transaction which can not be ignored. Facts which are not denied by the taxpayer or Bockus must be taken into consideration and a decision can not be made alone upon 'Categorical statements of the parties. In the light of all the testimony, we are convinced that the taxpayer did not make a sale to Bockus of the stock in question in 1921, and that the taxpayer’s return for that year, in which he claims a deduction on that account, was willfully false and fraudulent. The facts and circumstances which lead us to this conclusion may be briefly stated.

Bockus, having learned that the taxpayer desired to dispose of some of his stock and that he was undertaking to sell it through another broker, approached the taxpayer and asked him, “ Why not let me do it?” The taxpayer and Bockus were on terms of intimate friendship and were closely associated in business affairs. The taxpayer testified that he treated Bockus as practically belonging to the family. They had many business dealings together. The tax*6payer bought securities from Bockus and Bockus acted as the taxpayer’s selling agent and sold whatever securities the taxpayer had to sell. During 1920 and 1921 Bockus had sold other stock of the same corporation. Bockus was in a bad financial condition. The taxpayer knew, at least in a general way, of the financial condition of Bockus. He testified that he knew that Bockus was “ hard up,” although he did not know of any contemplated bankruptcy proceedings. Bockus himself may not have known that his creditors intended to institute such proceedings. About a year after Bockus received the stock and after he had executed to the taxpayer his promissory note in exchange therefor, Bockus was declared an involuntary bankrupt. He did not list the note of the taxpayer as an indebtedness and did not include the stock as an asset, nor did he list it among his assets when he was notified in 1923 that an assessment had been levied on the stock. If he had overlooked the stock in 1922 when the bankruptcy proceedings were instituted, his mind must have been refreshed when the stock was called to his attention by the assessment thereon. The taxpayer, knowing of the bankruptcy proceedings, did not file a claim against the bankrupt, but testified that he would have been willing to destroy the note, except for the question of tax liability which was coming up. Prior to the adjudication in bankruptcy an assessment of one-half cent per share was levied by the corporation upon the stock transferred to Bockus. This assessment was paid by the taxpayer in order to prevent the stock from being sold to satisfy the assessment. On February 11, 1924, another assessment .which had been levied on the stock held by Bockus was paid by the taxpayer. This was after Bockus had been declared bankrupt. Neither of the assessments have since been paid by Bockus. The taxpayer testified that one of the reasons that he desired to sell the stock was that it was a burden to him; yet he continued after the transaction to bear the burden of paying assessments thereon. After the transfer of the stock to Bockus, and while the taxpayer held Bockus’ note payable on demand, Bockus sold other securities to the taxpayer. These securities had been purchased by Bockus with his own funds and the taxpayer paid to Bockus the consideration therefor in cash. Bockus also sold some securities for the taxpayer and the taxpayer paid him his commission in cash. No part of the money due to Bockus as the result of these transactions was credited or applied on the note held by the taxpayer. The note was payable on demand, and, notwithstanding these transactions, the taxpayer did not make demand and has never made demand for any part of the principal or any interest on the note. *7From all the testimony in the case, we are of the opinion that the transfer of the stock by the taxpayer to Bockus in 1921 was not an actual tona -fide sale, and that the return filed for that year, in which a deduction was claimed on account of such transaction, was willfully false and fraudulent.

Order of red&termination will te entered on 30 days’ notice, under Rule 50.