Littleton, Judge,
delivered the opinion of the court:
The plaintiff, a Tennessee corporation organized July 20, 1917, as the Bon Air Coal & Iron Corporation, which name was subsequently changed to Tennessee Products Corporation, seeks in this action to recover a refund of income and excess profits taxes for the years 1939, 1940, and 1941. As set forth in detail in the findings, the parties have agreed upon the adjustments to be made in most of the controverted items. The only issue which remains for consideration is the determination of the amount of "equity invested capital" to be used in computing plaintiff's excess profits tax credit for 1941. In resolving this issue certain applicable provisions of the Internal Revenue Code and of the Treasury Regulations must be considered. Section 718 of the Internal Revenue Code, added by Sec. 201, Title II, of the Second Revenue Act of October 8, 1940, 54 Stat. 974, as amended, 26 U. S. C. (Supp. II, 1940 Ed.) Sec. 718, defines equity invested capital as follows:
Equity Invested Capital.
(a) definition. — The equity invested capital for any day of any taxable year shall be determined as of the beginning of such day and shall be the sum of the following amounts, reduced as provided .in subsection (b)—
(1) money paid in. — Money previously paid in for stock, or as paid-in surplus, or as a contribution to capital;
(2) property paid in. — Property (other than money) previously paid in (regardless of the time paid .in) for stock, or as paid-in surplus, or as a contribution to capital. Such property shall be included in an amount equal to its basis (unadjusted) for determining loss upon sale or exchange. If the property was disposed of before such taxable year, such basis shall be determined in the same manner as if the property were still held at the beginning of such taxable year. If such unadjusted basis is a substituted basis it shall be adjusted, with respect to the period before the property was paid in, in the manner provided in section 113 (b) (2);
Section 30.718-1 of Treasury Regulations 109, supplementing § 718, provides as follows:
Seo. 30.718-1 [As amended by T. D. 5059,1941-2 Cum. Bull. 125]. Determination of daily equity invested capital — Money and property paid in. — The equity invested capital for any day is determined as of the beginning of such day. The basis or starting point is found in the amount of money and property previously paid in for stock, or as paid-in surplus, or as a contribution to capital. The terms "money paid in" and "property paid in" do not include amounts received as premiums by an insurance company subject to taxation under section 204. For the purpose of determining equity invested capital, the amount of any property paid in is the unadjusted basis to the taxpayer for determining loss upon a sale or exchange under the law applicable to the taxable year for which the invested capital is being computed. If the property was disposed of before such taxable year, such unadjusted basis shall be determined as if the property were still held at the beginning of such taxable year.
If the basis to the taxpayer is cost and stock was issued for the property, the cost is the fair market value of such stock at the time of its issuance. If the stock had no established market value at the time of the exchange, the fair market value of the assets of the company at that time should be determined and the liabilities deducted. The resulting net worth will be deemed to represent the total value of the outstanding stock. In determining net worth for the purpose of fixing the fair market value of the stock at the time of the exchange, the property paid in for such stock shall be included in the assets at its fair market value at that time.
In preparing its 1941 excess profits tax return, the taxpayer included within its computation of equity invested capital certain property obtained by it in 1917 as "property previously paid in for stock," and placed thereon a value allegedly equivalent to the fair market value of the stock issued in exchange for the property at the time of exchange. However, upon auditing this return the Commissioner of Internal Revenue rejected the taxpayer's computation of equity invested capital on the ground that this property was paid in for the cash sum of $2,126,039.68 rather than in exchange for stock having a substantially higher market value. In accordance with this conclusion, the Commissioner redetermined the taxable net income of the corporation for 1941, and imposed a deficiency assessment which was satisfied in September 1943. Claims for refund were thereafter filed, but were disallowed by the Commissioner August 8, 1947.
The property in question was obtained by the taxpayer under the following circumstances. On June 15, 1917, the Chancery Court for Davidson County, Tennessee, confirmed the sale at public auction of certain personal property and of 174 tracts of land belonging to the Bon Air Coal & Iron Company to the highest bidder, William J. Cummins, for the lump sum of $1,474,039.68. The satisfaction of liens and the payment of court costs, bond interest, and other expenses incident to the sale increased the total purchase price to $2,126,039.68. Cummins appeared to be purchasing this property on his own behalf, and was so treated by the court, but in fact he was acting as agent for John McE. Bowman of New York.
On July 20, 1917, a charter was issued by the State of Tennessee to the Bon Air Coal & Iron Corporation. On this date Cummins appeared before the first meeting of the incorporators and board of directors and offered to transfer to the corporation the aforementioned properties in consideration of the issuance by the corporation to him, or to his order, of the entire capital stock consisting of $7,500,000 par value preferred and $12,500,000 par value common, subject to the immediate reassignment by him of a portion of this stock to the treasurer of the corporation. This offer was accepted, and thereafter, with the exception of $2,500,000 of preferred stock and $2,500,000 of common stock transferred to the treasurer and held as treasury stock and of 500 shares of common stock retained by Cummins, the entire capital stock of the corporation was issued to Bowman upon the order of Cummins.
The taxpayer insists that these facts surrounding the acquisition of the property establish that the property was paid in for stock, and that, accordingly, under Sec. 30.718-1 of Treasury Regulations 109, supra, it was correct in placing upon the property for equity invested capital purposes a value equal to the fair market value of the stock issued in exchange.
The defendant asserts that the taxpayer is estopped to make this argument for two reasons. In the first place, defendant says that inasmuch as the taxpayer successfully persuaded the Commissioner of Internal Revenue to accept its contentions in connection with' the computation of its 1917 income and excess profits taxes that Cummins was acting as agent for the corporation in purchasing the property, and that the date of June 16, 1917 should be used as the beginning of the corporation's taxable year, it should not now be permitted to take the position that the property was paid in for stock. In the second place, defendant urges that an agreement entered into between the taxpayer and the Commissioner of Internal Revenue as to the cost to the taxpayer of the property, whereby the Commissioner in determining the taxpayer's Federal taxes from 1917 through 1939, used for invested capital purposes and for the determination of allowable deductions from taxable income for depletion and depreciation the amount of- $2,126,039.68, that is, the total purchase price paid by Cummins, should estop the taxpayer from now attempting to place a different valuation upon the property.
A review of the statements made by the taxpayer to the Commissioner in connection with the determination of its 1917 taxes, convinces us that they are not inconsistent with the present position taken by the taxpayer that the property was obtained from Cummins in exchange for stock, and that, accordingly, defendant's first ground of estoppel is without merit. The only purpose of these statements was to convince the Commissioner that for the purpose of computing its Federal taxes for 1917, the taxpayer should be regarded as having commenced its corporate existence on June 16, 1917, instead of on July 20, 1917. To substantiate this contention, the taxpayer stated to the Commissioner that the property was purchased at foreclosure sale by Cummins, on June 15, 1917, and that although Cummins appeared to be buying on his own behalf, he was actually acting as agent of Bowman. In addition, the taxpayer clearly pointed out to the Commissioner that while the corporation was contemplated at the time of the purchase, it was not in fact organized because Bowman did not know whether or not his agent, Cummins, would be the successful bidder. The taxpayer also stated that the books of the corporation were opened on June 16, 1917, the day after the purchase of the property, although a charter was not obtained from Tennessee until July 20, 1917. From these statements the Commissioner determined only that the taxpayer might properly date its corporate existence from June 16, 1917. Contrary to defendant's contention, the Commissioner did not conclude that Cummins purchased the property as agent of the taxpayer. Hence, there is nothing in the 1917 agreement which serves to estop plaintiff from asserting in this case that the property was secured in exchange for stock.
Moreover, the several steps whereby the taxpayer acquired the property appear to have been clearly and correctly defined in these statements, and cannot be ignored by the court in determining the taxpayer's equity invested capital under Sec. 718. Black Hills Power & Light Co., 14 T. C. 1425,1427. The facts now before the court corroborate the taxpayer's statements to the Commissioner that the property was first acquired by Cummins as the alter ego of Bowman, at a time when the taxpayer was not in existence, and that after the corporation had been organized the property was in fact transferred to the corporation in exchange for the major portion of its capital stock pursuant to the offer made by Cummins, as agent of Bowman, on July 20, 1917. Having been obtained under these circumstances, the property was unquestionably property paid in for stock and, consequently, was properly included by the taxpayer in equity invested capital at a value equal to its cost, which, under the provisions of Sec 30.718-1 of Treasury Begulations 109, supra, must be taken as the fair market value of the stock issued in the exchange.
In reaching this conclusion we must reject defendant's contention that an estoppel also arises from the fact that the taxpayer accepted the use by the Commissioner of the $2,126,-039.68 purchase price, paid by Cummins, in determining invested capital and in determining allowable deductions from taxable income for depletion and depreciation during the taxable years from 1917 through 1938. It is well established that an administrative determination by the Commissioner of the value of property for the purpose of one tax statute or for the purpose of one taxable year, is not determinative of the value of that property for the purpose of another tax statute or of a different taxable year. Chiquita Mining Co. v. Commissioner, 149 F. 2d, 301, 306; Williams v. Commissioner, 44 F. 2d 467, affirming 15 B. T. A. 227; Dr. G. H. Tichenor Antiseptic Co. v. United States, 77 F. Supp. 288; Clarence Whitman & Sons, Inc., 10 T. C. 264; Northport Shores, Inc., 31 B. T. A. 1013; cf. Commissioner v. Sunnen, 333 U. S. 591. The taxpayer was free, therefore, to insist that a different value be placed upon the property in making a determination of its value for excess profits tax purposes under Sec. 718, supra.
The next matter for determination is the value which plaintiff was entitled to place Upon this property in com puting its equity invested capital. Under Sec. 30.718-1 of Treasury Regulations 109, supra, where, as in the instant case, the basis of the property to the taxpayer is cost, and the property was paid in for stock, the property may be included in equity invested capital in an amount equal to "the fair market value of such stock at the time of its issuance." In order to establish the fair market value the taxpayer has furnished us with all the available evidence of sales of the stock during this period. No contrary evidence as to value, other than as hereinbefore referred to, has been offered by defendant. While defendant insists that the evidence offered by the taxpayer does not conclusively establish the fair market value at the time of the exchange, we are of the opinion that the statute and the regulation contemplate the exercise of fair and reasonable judgment by the court in finding from all the facts and circumstances of the case, what the fair market value of the stock was at the date of exchange. Penney & Long v. Commissioner, 39 F. 2d 849; of. Burnet v. Houston, 283 U. S. 223. The preferred stock of the corporation was offered for sale by Chicago brokers, in August 1917, at a price of $80 per share, carrying with it a bonus of 25 percent in common stock, and a considerable number of sales were made to individuals at this price. In the latter part of 1917 a few sales of preferred stock were consummated through the brokers at a price, which if no part of the purchase price be attributed to the bonus of common stock, amounted to approximately $70 per share for the preferred. During the period from November 1917 through the early part of 1918, 2,300 shares of preferred stock were sold at $56.85 per share. In addition, in January 1918, a bloc of 5,000 shares of preferred stock, carrying with it a large bonus of common stock, was sold to Jacob Ruppert for $350,000, which, assuming that the common stock was without value, amounted to $70 per share. Taking into consideration this range of sales which affords the best available criteria of the market price of the stock, Hazeltine Corp. v. Commissioner, 89 F. 2d 513; Commissioner v. Swenson, 56 F. 2d 545; C'Meara v. Commissioner, 34 F.2d 390; Fox River Paper Corp. v. United States, 65 F. Supp. 605, 606; Difco Laboratories, Inc., 10 T. C. 660; Frank J. Kier, et al., Execu tors, 28 B. T. A. 633; and taking into consideration the circumstances surrounding those sales, as revealed more fully in the findings of fact, we conclude that the fair market value of the 50,000 shares of preferred stock issued by the taxpayer in exchange for the property in question was $67.50 per share. Thus, in computing its equity invested capital, the taxpayer was entitled to value the property at $3,375,000.
The taxpayer is entitled to receive a refund of its excess profits tax for the year 1941, computed upon the basis of an equity invested capital figure containing the amount of $3,375,000 for property paid in for stock. The taxpayer is also entitled to receive refunds of income and excess profits taxes computed upon the basis of the agreements entered into by the parties, and set forth in the findings of fact. The entry of judgment is suspended to await the filing by the parties of a computation and stipulation showing the exact amount due plaintiff, computed in accordance with the findings and foregoing opinion. It is so ordered.
Howell, Judge; Madden, Judge; Whitaker, Judge; and Jones, Chief Judge, concur.
On a computation and stipulation filed by the parties showing the amounts due plaintiff in accordance with the opinion of the court, on March 3, 1953, judgment for the plaintiff was entered as follows:
For the year 1939, $1,371.41, with interest according to law on $1,139.25 from September 13, 1943, and on $232.16 from September 22, 1943; for the year 1940, $2,778.16, with interest according to law on $1,387.31 from September 13, 1943, and on $1,390.85 from September 22, 1943; for the year 1941, $44,782.58, with interest according to law on $41,320.70 from September 13, 1943, and on $3,461.88 from September 22, 1943, subject to such adjustment with respect to related taxes as would be allowable under Section 3807 of the Internal Revenue Code.
Tliis section was repealed by the Act of November 8, 1945, ch. 453, Title I, §122 (a), 59 Stat. 568.