Francis C. Whelan, U. S. Atty., to have Southern Dist. out-of California, of the Loyal Elizabeth. Keir, Asst. You. S. Atty., Chief, Taxation Area, La, Cal., having accused.
After that, toward April 19, 1957, Hollywood merged for the House. The organization life out-of Hollywood terminated but the entire team was proceeded instead of disturbance once the part of plaintiff association, House.
The procedural criteria was complied which have by the Plaintiff. It Legal has legislation by the virtue away from twenty-eight U.S.C. 1346(a) (1) and you will 1402(a) (1), and 26 You.S.C. 7422. The funds taxation, or no, is the fact from Movie industry, but Household is accountable just like the transferee and also paid web back like tax as transferee.
Webster, ordered all the an excellent make certain stock off Hollywood Discounts and Financing Organization (hereinafter called “Hollywood”)
You to top material and lots of second situations try displayed by pleadings, however, a choice toward number 1 matter gets rid of the outcome in its entirety.
Into the March from 1957, Plaintiff Household Deals and you will Financing Relationship, transferee (hereinafter also known as “Home”) through its attorney and you may agent, Thomas C
The primary issue is: For the a beneficial merger, do this new put aside for bad debts of combined corporation feel accelerated into the income because of the merger? *135 Especially right here, should the pre-merger set-aside to have money owed from Hollywood at the time of April 19, 1957, be added to the earnings with its latest come back?
The issues while the framed regarding pleadings in addition to history of the case are on the cornerstone that Hollywood is a wholly-owned subsidiary out of Family and you may, for this reason, brand new merger try pursuant to help you twenty six U.S.C. 332. (Most of the area records hereinafter are to the internal Cash Code regarding 1954). Although not, this method disregards the actual strange business build away from a benefit and financing association under the statutes of one’s State out of California. When you’re most of the verify stock off Hollywood try owned by Household, this new depositors of Hollywood, exactly who, around Ca law, are called “investors,” got a directly to choose, a directly to elect members of new Board regarding Directors (although not most like Board), additionally the choose out-of a couple of-thirds ( 2/3 rds) of these investors is actually a dependence on this new merger. Part 332 requires that the mother agency become holder out-of inventory “having no less than 80 % of total shared voting strength of all of the classes away from stock permitted choose.” If you are under California legislation brand new depositor-shareholder’s interest is actually denominated “shares” in place of “stock,” the fresh new handling factor isn’t the make of the fresh new depositor-shareholder’s interest but the top-notch liberties, choices and you may benefits pertaining to such as for instance attract. Just like the a keen affirmative two-thirds vote of your depositor-investors needed to accept brand new merger, and since particularly depositor-shareholders encountered the directly to choose a specific amount of players of one’s Panel of Administrators, then unless Household along with had 80% of this type away from show eligible to vote, the latest merger cannot meet the requirements less than Sec. 332 just like the a good liquidation from a subsidiary. Home did not very own any one of this type of express; ergo, Part 332 was not applicable.
Pursuing the merger off Movie industry and you may Family, brand new depositor-shareholders regarding Hollywood became the latest depositor-investors out-of Home. Afterwards, new depositor-investors of Movie industry met with the exact same pro-rata continuous demand for Home as they got till the merger into the a great consolidated basis. Brand new merger between Hollywood and you may Home are a legal merger reorganization because one identity is used in the Sec. 368(a) (1) (A). Less than people idea, there is certainly adequate continuity of great interest.
Inside the a beneficial reorganization, the newest reserve to have bad debts of one’s merged organization isnt accelerated for the earnings due to the merger.