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Mr. Xeonard Jacobson, Certified Appellant : Public Lccountant

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Mr. Xeonard Jacobson, Certified Appellant : Public Lccountant
Appearances:
Fox- Appellant :
Mr. Xeonard Jacobson, Certified
Public Lccountant
For Respondent :
1#7. T."i. ".:aiSh, Assistant Franchise
Tax Comzzi_ssioner; NiIton Suet,
AssiS-tant Tax Coilnsel
This agoeal is made wrsuant to Section 27 oP the Bankand
Cor~~ora';ian~~ranc.ilise Tax-Act (Chapter. 13, Statutes Of 1929, as
amended) from the action of tke ~ranc.kise Tax Coi%$_ssioner in
denykng the claim of Johnson Foundry & Machine Com~~ang for a refund of tax,iz the amount of Cs9'76.53 for the taxable year ended
December 3>, 1944.
At the close of 1943, the Appellant sold all its assets,
except its accounts receivable, for the purpose of discontinuing
its business, its accounts were maintained and its returns filed
03 the accrua; basis. 'The corporation remained_ in existence
during 1944 solely for the purpose of coilecting its accounts
receivable (which were not interest bearing), discharging its
accounts payable, and ;j~r.?rs uiug a cZ.L~- I for relief from excess
profits taxes under Ssction 722 0" t.'ze YXited States Internal
Revenue Code. Upon the ground tS.t these activities did not
constitute “doirg business?? in ti>z ,~~;:;--~e during the year 191+4,
within the meaning of [email protected] as defined in Section 5 of the Act,
Ap~~el1an-t filed its claim for a refuuli of the tnx paid by it based
uDon its net income for the year l-943, less the minimum tax,
w&h it concede s to be due under Section 4 (5) of the Act. The
Commissioner den$ed t!le claim, asserting that the Appellant was
in fact doing business in Cz:1iTor:lia d.uring 1944 for the purposes
of the statute.
Section 5 defines the term seagoing businesses as used in the
Act as
actively engaging in any transaction
f&'-&e purpose of fin.ncis;:! or pecuniary
gain or profit.71
?V
Clearly, the payment of debts is not a tr.ansaction OF the
type contemplated by the statute, for pecuniary gain or profit is
not the object of the act. l?or do we think the filing of an
application for relief from an excessive and discriminatory excess
c‘
-*
profits tax under Section 722 of the Internal Revenue Code is in
the nature of a transaction entered into for pecuniary gain. The
object of the claim is the recapture of a portion of an excessive
amount of tax paid by the claimant. The allov;ance of the claim
would only restore that whicil rightfully belonged to the Appellant
before the proceeding was unaertaken. See Xerriam v. Commissioner,
55 Fed. 2d 879, holding that a suit prosecuted to establish an
interest in an estate did not constitylte a 'stransaction entered
into for profituP for purposes of what is now Section 23(e) (2) of *
the Internal Revenue Code. See also Gertrude
.I -..AD "lalker, 31 8, T.A.,
1146.
Similarly, the collection of non-interest bearing accounts
receivable by a corporation operating on the accrual basisafter
its active operations have been entirely discontinued does not,
in otll" opinion, constitute doing business. llhz transactions
entered into for profit were at an end. The-subsequent activity
served only to reduce those profits to actual possession and
neither the purpose nor the result was pecuniary gain or profit.
Under the circumstances, gain or profit was no more the pu;r;~cs~:.:of
the activity of collection than would be the withdrawal of
non-interest bearing funds b;> a depositor from a bank.
All cases relied upon by the Commissioner are distinguishable.
In each, the transactions in question were aimed at the,production
Of gain or income.
In Hise v. McColgan, 24 Cal, 2d 14.7, there
were sales and rentals ~ehalf~~~insolvont building and I,oan
association, The coqoration.involvcd in Goidou State Thoatro C
Realty Corj?oratidn vy Johnson,
21 Cal. 2d ~~~~~-‘~~~~~~~e~a~e~tcd_
Fralestato7
enc??s& nctes-%d
made large borrowings to promote
the businesg of its subsidiaries. Francis Land Company, under ’
consideration by the Court in CarsonI w.._iLv;‘
EstateI -.,.~w-“
Coqany v. XcColgan,
21 Cal. 2d 516, engaged estensrvely 2-n
bee purcnase‘- andsam'
stocks and bonds.for profit, In Peo-cie V. Alexar,der Goldstein Co.,
66 Cal. App. 771, the Court similTLTT_rou~~d_ W-..,
that the defendant
bought and sold securities and managed invest::zents on a substantial
scale.
Ko such activities were engaged in by the Appellant here,
and we conclude, therefore, that it was not.?ydoing businessFy
within this State during the year i_oi+&, and, accordingly is n&
liable for franchise tax for that year measured by its net income
for the year 1943.
It is, of course immaterial that the ADpellant continued its
1943. A Section 4( 3) imposes
a tax on corporations doing business &thin this State. Bare
corporate existence or qualification to act as a corporation is
not made the object of the tax measured by net income; that, with
nothing more, gives rise only to liability for the minimum tax
imposed by Section 4( 5). The Act clearly contemplates the status
of a corporation which has discontinued doing business without
dissolving or withdrawing from th3 State, for Section 13(l) sets
forth the manner in which its tax shall be computed for the year
in which it resumes business.
COrpOra'te existence aster December 31
79
Appeal of Johnson Foundry & Machine CO.
RDE
mO e
-R
-
a
Pursuant to the views expressed in the opinion of the
Board on.f'ile in this proceeding, and good cause appearing
therefor,
IT IS BEREBY ORDERED ADJUDGED AND DECREED, pursuant to
Section 27 of the BanI& a$ bokporation Franchise Tax Act, that
the action of Charles J. '&Colgan, Franchise Tax Commissioner,
in denying the claim of Johnson Foundry 8c Machine Company for
a refund of tax in the amount of $976.53 for the taxable year
ended December 31, 1944, be and the same is hereby roversed.
The Commissioner is hereby directed to credit said amount of
$976.53 against any taxes due from said Johnson Foundry & Machine
Company and to refund the balance to it and otherwise to proceed
in conformity with this order,
Done at Sacramento, California, this 17th day of November,
1948.
Wm. G. Borelli, Chairman
J. H. Quinn, ?kmber
J. I,. Seawell, !kZomber
G. R. Reilly, Xember
ATTEST:
D. L, Pierce, Secretary
80
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