Negotiations looking to the sale of Kelly's property and assets to petitioner were opened early in 1929, and were continued until the sale was consummated on July 31, 1930. Negotiations were conducted on behalf of petitioner principally by G. B. Durell, its president, Winthrop Withington, its vice-president, manufacturing director and member of the executive committee, and C. G. McGhie, vice-president and general manager of the Welland Vale Manufacturing Company, Ltd., a subsidiary of petitioner. The negotiations were conducted on behalf of Kelly by W. C. Kelly, chairman of its board of directors, George T. Price, its president, and Duncan Bruce, its vice-president.
Findings of Fact
Petitioner is an Ohio corporation, having its principal office and place of business at Cleveland. The income and excess profits tax returns of petitioner for the years herein involved were made on the basis of a fiscal year ended April 30, and all of such returns were duly filed with the collector of internal revenue for the eighteenth district of Ohio, at Cleveland.
Prior to July 28, 1930, petitioner was engaged in the business of manufacturing forks, hoes and other miscellaneous articles, but did not manufacture axes or shovels. Kelly Axe and Tool Company, hereinafter called Kelly, was, prior to the last mentioned date, a West Virginia corporation engaged in the business of manufacturing axes and other tools, but did not manufacture forks, hoes or shovels; and Skelton Shovel Company, hereinafter called Skelton, prior to such date, was a New York corporation engaged in the business of manufacturing shovels. The Canadian Shovel & Tool Company, Ltd., prior to July 28, 1930, was a Canadian corporation affiliated with Skelton, and was engaged in the manufacture of shovels in the Dominion of Canada.
On July 28, 1930, pursuant to authorization contained in a resolution adopted by petitioner's directors and subsequently ratified by its stockholders, petitioner entered into a contract with Kelly and Skelton whereby it agreed to purchase, and the last named companies agreed to sell, all of the property, assets and business of each as a going concern, for a stipulated consideration, the assets of Skelton to include also all of the assets of the Canadian Shovel & Tool Company, Ltd. Pursuant to such agreement, petitioner, on July 31, 1930, acquired all the property and assets of Kelly, paying therefor on said date 12,000 shares of its preferred stock of the par value of $100 per share, and 154,541 shares of its common capital stock without par value, and, in addition, assuming all of the debts and liabilities of Kelly.
On July 31, 1930, the fair market value of petitioner's preferred stock was $100 per share, and the fair market value of its common shares was $251/3 per share, the aggregate fair market value on that date of 12,000 shares of petitioner's preferred stock and 154,541 shares of its common stock being $5,115,038.67. In addition to the stock paid as part of the purchase price of Kelly's assets, petitioner assumed liabilities of Kelly in the amount of $210,616.62, making the total cost to petitioner of the property and assets acquired from Kelly the sum of $5,325,655.29.
The assets acquired by petitioner from Kelly included (1) current assets, (2) investments, (3) accounts due from officers and employees of Kelly, and (4) deferred charges to operations. These accounts were worth face value, and, together with the liability accounts, were set up on petitioner's books in the amounts shown on Kelly's books at the date of transfer. The asset accounts mentioned amounted to $2,444,435.22 and comprised the following items: (1) current assets in the total amount of $1,970,992.27 (consisting of cash $461,982.44; notes and loans receivable $151,389.95; accounts receivable, less reserve, $261,529.34; merchandise, work in progress and materials, $1,068,133.52; accounts receivable, miscellaneous, $27,957.02); (2) investments $383,794; (3) due from officers and employees $69,462.53; and (4) deferred charges to
[2 T.C.M. 844]
operations (consisting principally of prepaid insurance) $20,186.42.
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