Petition to review decisions of the Board of Tax Appeals.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Four petitions to review decisions of the Board of Tax Appeals redetermining deficiencies in the income taxes for 1934 of four separate investment trusts were consolidated and heard together.
The Chase National Bank of the City of New York is the trustee of each trust created by an agreement made with it by the American Depositor Corporation, a New York corporation with its principal office in the City of New York. The Commissioner determined that each trust was to be classed as an association whose income was taxable, under Sec. 801(a) of the Revenue Act of 1934, 26 U.S.C.A. Int. Rev. Acts, page 790, like that of a corporation. The Board held that they were not taxable under the provisions of that statute and the Commissioner brought petitions for review.
Two of the trusts were created when the American Depositor Corporation and the Chase Bank executed two agreements in September, 1931, dated as of July 1, 1931, whereby two fixed trusts called "Corporate Trust Shares, Accumulative Series" and "Corporate Trust Shares, Series AA" came into being. On September 23, 1932, the other two trusts were created when the same parties executed what are called supplemental agreements to set up what are known as "Corporate Trust Shares, Accumulative Series (Modified)" and "Corporate Trust Shares, Series AA (Modified)."
The purpose underlying each trust was to provide investors with a means for acquiring an undivided beneficial interest in a comparatively static list of securities and enable them to participate in a relatively wide-spread investment.
In the case of the Accumulative Series first created, The American Depositor Corporation, which will be called the depositor for convenience, chose common stocks of thirty American corporations after due consideration of their favorable characteristics for investment purposes and made up what were called "units" consisting of sixteen shares of the common stock of each corporation. The units were deposited with the Chase Bank, which will now be called the trustee, and the trustee issued to the depositor certificates which in the aggregate entitled the holders to ten thousand undivided one ten-thousandth interests in a unit. These certificates will be called trust shares. The agreements provided that the depositor might make up additional units of the same number and kinds of stocks, adjusted ot reflect any common stock received on the first unit by way of a stock dividend, merger, consolidation, sale of assets, or exchange of stockl and that like certificates representing trust shares should be issued by the trustee upon the deposit with the trustee by the depositor of an additional stock unit to gether with cash equal to any undistributed cash held by the trustee on account of previously deposited units. The stock certificates making up the units were to be registered in the name of the trustee or its nominee and it had generally all the rights of an owner, except as to voting, which the depositor controlled, and as to disposal which was governed by the agreement. The trustee was to receive all increase by way of distributions and on June 30th and December 31st in each year to pay to holders of trust shares their proportionate share of currently distributable funds upon the presentation of coupons. What was to be treated as currently distributable funds was carefully defined in the agreement and comprised what should be received in stated ways less specified expenditures.
The trustee's duties in holding the stock in the units were prescribed in lengthy detail and it could exercise discretion as to such matters only in respecxt to an option given in connection with a reclassification or change in capital structure or in agreeing to proposals made by a protective committee when the wishes of a majority of the stockholders could not be ascertained.
The depositor was, as found by the Board, given the right within ninety days after the occurrence of stated events to notify the trustee "that it found the purchase of a certain stock in the stock unit portfolio impracticable or inadvisable, whereupon it became the trustee's duty to sell all shares of that stock held by it. The events entitling the depositor to this right were (a) that less than 2,500 shares of the stock had been sold during a 5-day period on the New York Stock or Curb Exchange; (b) that the stock had been removed for 3 days from the trading privileges of an exchange; (c) that the market value of the stock exceeded 30 times its annual cash dividends; (d) that a stock, paying dividends solely in its own common shares, had paid an annual dividend of less than 3 1/2 per cent; (e) that cash dividends on a cash-dividend paying stock had been reduced or had ceased; (f) that the market value of a stock in a stock unit portfolio exceeded 10 per cent of the market value of all. Upon the occurrence of (f), the depositor, after 90 days notice to the trustee, might in the alternative, merely reduce the number of shares of that stock in a stock unit so that its market value would n ot exceed 10 per cent of the market value of all shares in the unit, whereupon the trustee was required to sell such number of shares of that stock as would equally reduce the number held for all units. In its choice of these alternative actions, the depositor was directed to 'consider the preservation of the sound investment character of the Stock Units and not the making of a profit by the holders of the Trust shares as a result of the sale.' Detailed directions were added for steps to eliminate fractional shares. Upon the failure of a distribution by any constituent corporation upon its shares for one year and 30 days, the trustee was to sell the deposited shares of that corporation. In case the number of constituent corporations should fall below 16 as a result of such elimination or through merger, consolidation or dissolution, the trustee was to terminate the agreement forthwith." If events which were not specified in the agreement did occur requiring the exercise of discretion in the administration of the deposited property the trustee was given absolute discretion to take action but neither it nor the depositor was to be held liable whether such action was or was not taken except that each was to be held for "its own willful default or malfeasance."
The agreement was to be effective until June 30, 1951, but was to come to an end sooner if, and when, the stock of less than sixteen constituent corporations remained in a unit; if the taxes, expenses and assessments exceeded cash available or to be expected and the trustee did not elect to advance funds for such purposes; and if the office of trustee became vacant and the depositor failed to appoint a successor. Upon termination, the property held was to be sold and the net proceeds distributed to trust share holders in the manner stated. The compensation of the trustee was to be paid by the depositor and it was to keep proper books and records open to inspection by the depositor and holders of trust share certificates.
These certificates "were to be issued by the trustee and countersigned by the depositor, to contain a list of the shares held in each constituent corporation, corrected to reflect changes in the portfolio, and to bear detachable coupons of the bearer's right to participation in the semi-annual distribution of currently distributable funds, and assignable, if unnregistered, by delivery merely and, if registered, by transfer upon the trustee's books. Coupons were transferable by delivery in either case, and were payable upon presentation. Certificate holders would in no event be liable, and persons dealing with the trustee were to look only to deposited property for the satisfaction of claims of any sort." It was further provided that certificate holders might not vote or give their consent in respect to any shares held by the trustee unless the depositor had such rights and voluntarily extended them to certificate holders and also that nothing in the agreement should be construed to make the holders of certificates partners or members of an association.
The series AA agreement had practically the same provisions with these modifications: The trustee had somewhat enlarged powers to sell whatevr property or rights it received on account of stocks held in a unit and if any stock in a unit should attain a market value in excess of ten per cent of all the shares in the unit the depositor could require a sale of all the shares but could not, as in the Accumulative Series, require a sale of only so many of the shares so increased in value as to reduce the market value of the part of them remaining to ten per cent of the market value of the securities in the unit.
The two other trusts were established in 1932 after the depositor had pointed out to trust share holders that when shares of constituent corporations had to be sold because there had been no distribution upon them for a year and thirty days the sale had to be made within forty-five days and had proposed that the sale period be left to the depositor's judgment to be formed in accordance with the principles of sound investment; and an option to exchange old certificates for new was given. Many certificates were so exchanged. The term of the new trusts were those of the old respectively, modified by striking out the requirement that the trustee must sell all or part of shares held which the depositor found it impracticable or inadvisable, because of stated events, to purchase for new units and providing instead that the depositor could require the trustee to sell all or a named part of any common stock held whenever it would, in the depositor's opinion, increase the sound investment character of the stock units without regard to the making of a profit. The requirement that the trust should be terminated if the number of constituent corporations should become less than sixteen was omitted and the ...