Cement Gun Co. v. Commissioner

*1215OPINION.

The petitioner seeks to establish its right to a deduction under section 234 (a) (7), Revenue Act of 1918,1 for the exhaustion during 1919 and 1920 of the contract rights acquired in 1914 to use and manufacture under the cement-gun apparatus and process patents. To secure such an allowance it is essential, since they were not acquired by gift or prior to March 1, 1913, for petitioner to establish the cost of such rights when acquired, for it is only its investment which may be recovered by taking such allowance out of its annual income. United States v. Ludey, 274 U. S. 295; Union Metal Manufacturing Co., 1 B. T. A. 395. The petitioner claims that such cost is to be taken as $450,000, represented by so much of the par value of the $440,000 of stock and of $30,000 of cash and notes as remained after applying $20,000 to the assets of the New York Cement Gun Co. In other words, it is said in effect that the New York Company’s assets were worth $20,000; that this amount was intended to be, and was, paid in cash and notes; and that the stock was regarded as fully paid at par and was issued, together with $10,000, in exchange for the licenses in question.

The respondent traverses the basis for computing any exhaustion allowance on two grounds — first, that in the, circumstances of the acquisition there was no cost, and, second, if there was in fact a cost, such as the issuance of stock, such cost is not determinable from the evidence. In support of his first ground, respondent refers to the fact, as shown, that petitioner acquired the licenses by the contract of January 1, 1914, directly from the General Cement Products Co. in consideration, not of a capital outlay of cash or an *1216issuance of stock, but of its promise to pay a royalty. In view of this, the later offer of Baldwin and the issuance of stock seem rather incredible. It is not reasonable to suppose that petitioner received the licenses on January 1 to run for the duration of the patents, began actually to operate under such licenses, and thereafter in August received and accepted an offer from Baldwin (its own counsel) to procure the very licenses it already had, together with the assets of the New York Company, for $10,000 in cash, $20,000 in notes, and $440,000 par value of its stock. Somewhere there is an explanation of this apparent inconsistency. But the discrepancy is not mended by the evidence. Both contracts are introduced by petitioner, and both are testified to as effective. For the petitioner to establish the cost claimed it would have to show that the licenses were acquired for the first time as a result of the Baldwin offer and to completely explain away the earlier contract and user. This it has not done; and however strange on its face the situation may appear, there is no room for a judicial surmise in substitution for the evidentiary fact. We find the contract rights or licenses were acquired without capital cost and that there is therefore no basis for an allowance for exhaustion. It may be assumed that the payment of the percentage royalties annually reduces income.

The decision on this point makes it unnecessary to determine the value of the rights in August, 1914, in order to determine the value of the stock alleged to have been issued in payment therefor, and hence unnecessary to consider what weight to give to the opinions of two of petitioner’s witnesses, one of whom, not being with the company until 1916, said the New York Company’s assets were worth, in 1914, “between $10,000 and $20,000,” and the licenses about $450,000, and the other, a promoter of patents, thought they were worth a million. And it is also unnecessary to decide whether the period of exhaustion, if allowable, would be, by reason of the terms of the contract, confined to the duration of the original patents.

The respondent, for 1919, disallowed all exhaustion because not originally claimed. This reason was abandoned before trial, presumably in conformance with Union Metal Manufacturing Co., 1 B. T. A. 395, and the defense placed on the ground above stated. For 1920 an allowance was recognized, but by amended answer this was pleaded as error and respondent moved to increase the deficiency under the authority conferred by section 274 (e), Bevenue Act of 1926.1 Consistently with our finding that the rights *1217were acquired by tbe contract of January 1, 1914, the motion must be granted and the deficiency increased accordingly.

Reviewed by the Board.

Judgment will be entered on 15 days’ notice, under Bule 50.