OPINION.
Smith:
This is a proceeding for the redetermination of a deficiency in income tax for 1930 of $8,636.36. The petition alleges that the respondent erred in the determination of the deficiency (1) in the denial of the petitioner's right to file a consolidated return with its wholly owned subsidiary, the Pennsylvania Indemnity Corporation, and the latter's wholly owned subsidiary, the Pennslyvania Indemnity Fire Corporation, and (2) in disallowing the deduction of an alleged loss of $247,631.29 upon the sale of securities in the year 1930 upon the ground that the loss was incurred in a transaction not entered into for profit.
The facts with respect to the first issue are that the petitioner is a Pennsylvania corporation organized " for the purpose of transacting a general insurance agency and brokerage business and for the trans action of such other business as may be incidental thereto." During the year 1930 it owned all of the capital stock of the Pennsylvania Indemnity Corporation, a Pennsylvania corporation organized for the purpose of insuring against losses resulting from casualties, which in turn owned all of the capital stock of the Pennsylvania Indemnity Fire Corporation, a Pennsylvania corporation organized for the purpose of insuring against losses or damage of property by fire, explosion, transportation, collision, larceny, theft, etc. The petitioner filed a consolidated return with the two above named insurance companies for the calendar year 1930. The respondent has held that the petitioner may not file a consolidated return with the two insurance companies for 1930 by reason of section 141 (e) of the Revenue Act of • 1928, which specifically provides: "An insurance company subject to the tax imposed by section 2Ó1 or 204 shall not be included in the same consolidated return with a corporation subject to the tax imposed by section 13."
It is agreed that the two insurance companies above referred to are subject to the tax imposed by section 204 and that the petitioner is subject to the tax imposed by section 13. In its petition the petitioner alleges .that section 141 (e) of the Revenue Act of 1928 is unconstitutional. It has, however, made no argument in support of this contention and we find no support therefor. The petitioner's contention upon this point is not sustained.
The facts relating to the second contention are that the petitioner's subsidiaries had investments in stocks and bonds which had greatly depreciated in value. On November 20, 1930, the petitioner's board of directors adopted a resolution which reads as follows:
Besolved, That the Officers are hereby authorized to purchase from the Pennsylvania Indemnity Corporation and/or Pennsylvania Indemnity Fire Corporation such, securities as they deem advisable, at a figure up to the book value of said securities as shown on the hooks of the Pennsylvania Indemnity Corporation and/or Pennsylvania Indemnity Fire Corporation.
Pursuant to such resolution the petitioner acquired securities from its subsidiaries at a cost of $666,967.37, which amount represented the cost of the securities to the subsidiaries but which securities at the time of purchase by petitioner had a fair market value of $420,051. These securities were sold by the petitioner through brokers at an amount to net it $419,330.08. Some of the securities were sold on the same day acquired from its subsidiaries and some a few days later. In its income tax return for 1930 petitioner deducted as a loss upon the sale of these securities the amount of $247,637.29, which deduction was disallowed by the respondent in the determination of the deficiency for the reason that " the Bureau holds that the loss on the sale of securities in the amount of $247,637.29 was not a transaction entered into for profit and therefore has disallowed a loss of $247,-637.29 claimed on the return."
Section 23 (f) of the Revenue Act of 1928 provides that a corporate taxpayer may deduct from gross income " losses sustained during the taxable year and not compensated for by insurance or otherwise." Section 113 of the same act provides that the basis for determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property.
We are of the opinion that the reason given by the respondent for disallowing the deduction of the loss, namely, that it was not incurred in a "transaction entered into for profit," is not in itself a sufficient ground for disallowing the deduction of the loss. The statute permits the deduction of losses from sales of property by a corporation even though the property was not acquired in a transaction entered into for profit. We are of the opinion, however, that the statute which permits a corporation to deduct from its gross income losses sustained upon the sales of property contemplates normal business transactions. Where a corporation for one reason or another purchases property at an amount in excess of the fair market value or in excess of the market price the transaction is not a normal business transaction.
In Donald McDonald, Jr., Administrator, 28 B.T.A. 64, we had before us the case of a taxpayer who acquired stock from his daughter-in-law at a price in excess of the fair market value thereof. The taxpayer paid a high price for the stock in order to help his daughter-in-law out of financial difficulties. In his income tax return the taxpayer claimed the right to deduct from gross income the difference between the price which he had paid the daughter-in-law for the stock and the price at which he sold it. We sustained the Commissioner in disallowing so much of the claimed loss as represented the difference between the selling price and the fair market value of the stock at the time it was acquired. In the course of our opinion we stated:
we think that they [the legislators] did not intend to allow a deduction for that part of the loss which resulted in this case from paying more than a fair price for the stock. The excess cost was paid for personal reasons, would not have been paid otherwise, and can not be the basis of a loss.
We think that the same reasoning is applicable in the proceeding at bar. The petitioner paid for the securities acquired from its subsidiaries an amount in excess of their fair market value for the purpose of bettering the financial condition of its subsidiaries. The substance of the transaction was a transfer by the petitioner to the subsidiaries of the excess of the price paid over the market value. That amount did not represent a part of the cost of the securities. We are of opinion that the only amount of loss which the petitioner is entitled to deduct from gross income is the difference between the fair market value of the securities at the date acquired and the price realized for them on their sale. Cf. Rubay Co., 9 B.T.A. 133.
Reviewed by the Board.
Judgment will be entered under Rule 50.