Petition for Review from the United States Board of Tax Appeals.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
The question presented for our determination at the time of the argument was whether the trust of which the petitioner, Fidelity Trust Company, is trustee was an association taxable as a corporation during the years 1932, 1933 and 1934, pursuant to the provisions of Sections 1111(a)(2) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 289, and 801(a)(2) of the Revenue Act of 1934, c. 277, 48 Stat. 680, 771, 26 U.S.C.A. Int. Rev. Code, § 3797(a)(3). In view of the decision of this court in Germantown Trust Company, Trustee, v. Commissioner of Internal Revenue, 3 Cir., 106 F.2d 139, the petitioner did not contend that the assessment of deficiencies for the years 1932 and 1933 by the Commissioner was barred by limitations. Our ruling upon this question was reversed by the Supreme Court in Germantown Trust Company v. Commissioner, 60 S. Ct. 566, 84 L. Ed. . It follows that since the trustee filed fiduciary income tax returns for the taxable year 1932 on March 15, 1933, and for the taxable year 1933 on March 15, 1934, and since the Commissioner gave the deficiency notice on March 13, 1937, the two year limitation after the filing of the return for the assessment of deficiencies by the Commissioner prescribed by Section 275(a) of the Revenue Act of 1932, c. 299, 47 Stat. 169, 237, 26 U.S.C.A. Int. Rev. Acts, p. 565, is applicable and the Board of Tax Appeals erred in holding that the assessment and collection of taxes from the petitioner for the years 1932 and 1933 were not barred by limitations. The status of the trust for the taxable year 1934, however, remains for our determination.
Section 801(a)(2) of the Revenue Act of 1934 provides: "The term 'corporation' includes associations, joint-stock companies, and insurance companies."
The facts are as follows: George V. Marshall, the father of the beneficiaries under the trust sub judice, acquired certain real estate and interests in real estate in the City of Pittsburgh, Pennsylvania. In 1917 Marshall leased his land to Frank & Seder, a partnership, for use by them as a department store, the lease to expire upon April 30, 1938. The lease was for a net rental; taxes, insurance and repairs to be paid by the lessees. In 1918, Marshall died, leaving his interests in the property to his wife, who caused Marshall Land Company to be incorporated under the laws of Pennsylvania. She coveyed her interest in the land to this company. In December, 1923, National Department Stores, Inc., acquired the business and assets of Frank & Seder, Inc., a corporation which had acquired the assets of the partnership. Other interests in the real estate occupied by the store were conveyed to Marshall Land Company from time to time and by February 20, 1924, the land and interests of Marshall Land Company in the site became coextensive with those now held by the petitioner. On February 28, 1922, Mrs. Marshall divided her stock, apparently constituting all of the stock of the Marshall Land Company, between her four children, the beneficiaries under the trust.
In April, 1924, National Department Stores, Inc., desiring to enlarge its building, entered into agreement with Marshall Land Company extending the lease previously executed until April 30, 1968. In November, 1925, Marshall Land Company conveyed the real estate to its four shareholders as tenants in common. They immediately conveyed the land to the trustee.
Other facts require brief mention. The land was conveyed to the trustee subject to a mortgage falling due in 1927. When due it was paid by a loan procured by the trustee. This loan was secured by a mortgage with interest at 5% per annum and with a specified amorization. In 1932 National Department Stores, Inc., defaulted in the payment of the rent. The lease provided that uponl such default the lessor could evict the tenant. The trustee did not exercise this power but negotiated a new lease with National Department Stores, Inc., receiving reduced rentals during the period of the negotiations. The new lease was upon substantially the same terms as the old.
The agreement of trust between the Marshall heirs and the petitioner gives the trustee power to hold and manage the property, to lease it, to collect the rents and oversee the payment of taxes, municipal assessment, insurance and the interest on any mortgage, to make payments on account of any mortgage, to pay the income from the trust to the beneficiaries, to sell the property or any part of it at public or private sale, to make and deliver notes, to secure funds, to make payments on account of principal or interest upon indebtedness, to execute and deliver bonds and mortgages in order to refund any existing mortgage, and to pay for the construction of a building or alterations to it.
The trust agreement also provides that the trustee shall not be liable for taxes, judgments or other charges other than to the extent of the trust res. The agreement circumscribes the conduct of the trustee in that it requires a majority in interest of the beneficiaries to consent to specified acts on the part of the trustee.For example, the trustee may not make a lease, withhold income from the beneficiaries, sell the property or any part of it, make or deliver notes or other ecidences of indebtedness, or construct or alter any building upon the land without the consent of a majority in interest of the beneficiaries.The agreement also provides that the trust shall continue to the end of the life of the last surviving beneficiary but not beyond April 30, 1968. On the other hand the agreement provides that a majority of the beneficiaries may revoke the trust at any time. The trust agreement states that the guardian of any minor shall have the same powers in respect to the trust as would the minor if he was of age and acting for himself.
Aside from the petitioner negotiating a new lease with the trustees of National Department Stores, Inc., during that company's insolvency and paying off the old mortgage and negotiating the new, the administration of the trust has been of the ordinary and usual kind. The petitioner has collected the rent, made the interest and amortization payments on the mortgage, and paid the net income to the beneficiaries. It appears from the rent and expense accounts in evidence that upon one occasion the trustee paid a county tax and was reimbursed therefor by National Department Stores, Inc.The petitioner has charged a comparatively small feel for its annual compensation.
We are required in the light of the foregoing to determine if this trust is an association employed to carry on a business enterprise and to share its gains. Such is the criterion applied by the Supreme Court in Morrissey v. Commissioner, 296 U.S. 344, 359, 56 S. Ct. 289, 80 L. Ed. 263. Whether or not the beneficiaries exercise a substantial measure of control is no longer the test. Hecht v. Malley, 265 U.S. 144, 44 S. Ct. 462, 68 L. Ed. 949. The later cases stress the powers given to the trustee in the instrument. So in the Morrissey case, 296 U.S. at page 357, 56 S. Ct. at page 295, 80 L. Ed. 263, the Chief Justice stated: "Undoubtedly the terms of an association may make the taking or acquiring of shares or interests sufficient to constitute participation, and may leave the management, or even control of the enterprise, to designated persons.But the nature and purpose of the co-operative undertaking will differentiate it from an ordinary trust. In what are called 'business trusts' the object is not to hold and conserve particular property, with incidental powers, as in the traditional type of trusts, but to provide a medium for the conduct of a business and sharing its gains. Thus a trust may be created as a convenient method by which persons become associated for dealings in real estate, the development of tracts of land, the construction of improvements, and the purchase, management, and sale of properties; * * * ."
Many of the indicia of the business trust as referred to by the Supreme Court in the Morrissey case, 296 U.S. at page 359, 56 S. Ct. 289, 80 L. Ed. 263, are present. The trustee holds the title to the property "embarked" in the enterprise. The trustee as a continuing trustee affords uninterrupted management of the property. Management is centralized in the trust and continuity remains uninterrupted except by the death of the last surviving beneficiary or the termination of the lease. The transfer of beneficial interests to minor children of the beneficiaries is contemplated. The liability of the trustee is limited expressly to the property in its hands.
We think the facts of the case at bar present analogy to those of Swanson v. Commissioner, 296 U.S. 362, 56 S. Ct. 283, 80 L. Ed. 273. In this case two individuals acquired vacant land in the City of Chicago with the view of improving it, and placed their interests in trust to that end. The Supreme Court held their "association" to be taxable under the provisions of Section 2(a)(2) of the Revenue Act of 1926, 44 Stat. 9, 26 U.S.C.A. Int. Rev. Code, § 3797(a) (3), substantially similar in language to the Act we are considering. See also Helvering v. ...