OPINION.
Littleton:
The first question concerns the amount of profit or loss upon the sale in the year 1920 of the tangible assets acquired from The Palmers & DeMooy Foundry Co.
The Commissioner contends that the taxpayer realized a profit of $49,519.88 from the sale, and the taxpayer claims that it sustained a loss of $60,241.35, in that, as a result of the sale, it lost the good will it had acquired from The Palmers & DeMooy Foundry Co., for which it claimed a value of $86,400.04.
We are satisfied from the evidence that the depreciated cost at the date of sale of the tangible assets sold was $66,419.39, and that a profit of $25,180.61 resulted,, exclusive of "the value, if any, of the good will acquired from The Palmers & DeMooy Foundry Co., instead of a profit of $49,519.88, as determined by the Commissioner. We do not, however, agree with the taxpayer's contention that, as a result of the sale of the tangible assets, it lost whatever good will it had acquired from the Foundry Co. We do not believe, and it is not established by the evidence, that the good will of The Palmers & DeMooy Foundry Co. attached solely to its tangible assets and the location of its plant. We are satisfied that the good will, or at least a great part thereof, was bound up with and attached to the name of "The Palmer & DeMooy Foundry Company" which the taxpayer incorporated in its own corporate name, and which it still retained after the sale of the assets. Even if'we were to conclude, which we do not, that at least a part of the good will of the Foundry Co. was attached to its tangible assets and the location of its plant, there are no facts before us from which we could determine the value of that part. In our opinion, the evidence does not establish that through the sale in question the taxpayer suffered a loss or diminution in value of whatever good will it had acquired from the Foundry Co. We therefore find that the taxpayer realized a profit of $25,180.61 on the sale.
With reference to the second question, the taxpayer alleged that the Commisisoner reduced its invested capital for the year 1920 by the amount of $99,132.64 " on the basis of balance sheet adjustments of tangible assets and good will," whibh allegation was admitted by the Commissioner in his answer. Further than is disclosed by the allegation and the admission, the record does not show the nature of the adjustments. The taxpayer also alleged, in connection with this item, that in exchange for its capital stock it acquired tangible assets, that is, the capital stock of the two predecessor corporations and not their assets, which allegation, when read in connection with the other allegation just quoted, would indicate that the adjustment related to the exclusion from the taxpayer's invested capital of good will set up on its books as having been taken over from two other corporations. The Commissioner explained that, in computing the invested capital, he applied the provisions of section 331 of the Revenue Act of 1918 in determining the value of the tangible and intangible assets acquired from the predecessor corporations for stock. The amount at which the tangible and intangible assets of the two predecessor corporations could be included in the invested capital of the taxpayer for 1920 is governed by section 331 of the Revenue Act of 1918, which provides that—
In the case of the reorganization, consolidation, or change of ownership of a trade or business, or change of ownership of property, after March 3, 1917, if an interest or control in such trade or business or property of 50 per centum or more remains in the same persons, or any of them, then no asset transferred or received from the previous owner shall, for the purpose of determining invested capital, be allowed a greater value than would have been allowed under this title in computing the invested capital of such previous owner if such asset had not been so transferred and received:
The evidence does not warrant any modification of the Commissioner's determination of invested capital under the above-quoted section.
Order of redetermination will be entered on 10 days' notice, under Rule 50.