the Internal Revenue Service had the burden of proof on the issue of basis because the Commissioner raised it in his amended answer; failure to prove basis caused the Board to conclude no gain was realized
How later courts described this case
- the Internal Revenue Service had the burden of proof on the issue of basis because the Commissioner raised it in his amended answer; failure to prove basis caused the Board to conclude no gain was realized
Written by the judges who cited it.
The opinion
Goodrich,
dissenting: Except as to Docket No. 20452, I dissent from the majority opinion. I agree that whether the common stock had a “ readily realizable market value ” has nothing to do with the case. I agree also that section 202 (d) (1) is controlling here, that the new stocks received take the basis of the old stock for which exchanged, and that article 1567 of Regulations 62, having been approved as reasonable, should be applied in determining gain or loss upon subsequent sale of the stocks, or a part thereof, so acquired. The article requires that a “ fair apportionment ” of cost basis be allocated to each class of securities in “ that proportion which the market value of the particular class bears to the market value of all securities received on the date of the exchange.” The respondent has made an apportionment which is upheld by the prevailing opinion on the ground that petitioners have failed to overcome the presumptive correctness with which his determinations are armored — have failed to prove that the common stock had a market value different from that assigned to it by respondent. At this point I disagree. The evidence in this record is sufficient to convince me that the common stock had no market value, or if it had, that the value was not known, and that showing, in my opinion, is sufficient to overcome the presumptive correctness of respondent’s determination of market value upon which he bases his apportionment. The stock undoubtedly was valuable and conceivably might have been sold at some price, but as to what that price would be, and whether it would be market value, we can only guess. Its book value and perhaps its intrinsic value might be determined quite accurately, but such values are not *1369 necessarily the market value, as that term has been so often judicially defined. Since the regulation requires the apportionment to be based upon a comparison of the market values of the two classes of securities, it need not be argued that, in the absence of one of those factors, it is not possible nor practicable to make a “ fair apportionment ” between them by the method prescribed.
I realize that upon occasion, because of statutory requirements, a value, such as a fair market value as of March 1, 1913, or as of the date of death of a decedent must be determined, and that such determination, be it accurate or inaccurate, if reasonably bottomed upon fact, must be used as a basis for the computation of statutory tax liabilities. No such necessity confronts us here. We are seeking only to determine whether this common stock had a market value, so that it is possible or practicable to make an apportionment of a cost basis between it and a preferred stock of known market value. My conclusion is that its market value at the time received upon exchange was unknown and I see no necessity to attempt to fix that value) by guess or to attribute to a stock of unknown market value, by means of arbitrary mathematical formulae, a portion of the cost basis, as respondent has done.
Therefore, in my opinion, the market value of the preferred stock received in the exchange should be applied against the basis of the original property and no profit on the sale of any of the property received will be realized until, out of the proceeds of such sales, shall have been recovered the entire cost o'f the original property.