Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
This appeal, involving income and excess profits taxes for the years 1941, 1942 and 1943, is taken from the judgment of the District Court in favor of the Collector of Internal Revenue ("Collector") in an action for refund instituted by the plaintiff, Sharon Herald Company ("taxpayer").
The question presented is whether the taxpayer is entitled to a deduction from gross income for State tax which it paid on behalf of its bondholders*fn1 as (1) interest on indebtedness under Section 23(b) of the Internal Revenue Code; or (2) business expense under Section 23(a) (1) (a).*fn2
The taxpayer contends that it paid the State tax under an express oral agreement with its bondholders and that the tax so paid is deductible either as interest or business expense under the applicable provision of Section 23. The Collector answers that there was no such oral agreement, and moreover, that under Section 23(b) and the pertinent Treasury Regulations*fn3 no deduction is allowable where the bonds on which the state tax is paid do not contain a taxfree covenant; further that the payments in question were not deductible as ordinary or necessary business expenses of the taxpayer under Section 23(a)(1)(a) of the Code since there was nothing in the record to show that the payments were ordinarily incurred or that they contributed to or benefited the taxpayer's business of publishing newspapers.
The District Court premised its judgment in favor of the Collector on the conclusion that the payments of the State tax were not "interest paid" within the meaning of Section 23(b) because of the non-existence of a written tax-free covenant in the bonds and that further, the payments were not "ordinary and necessary expenses" under Section 23(a)(1)(a).
The facts as found by the District Court*fn4 may be summarized as follows:
Taxpayer corporation was incorporated May 13, 1935, under the laws of Pennsylvania, its formation having resulted from the consolidation of two predecessor corporations (the Sharon Herald Publishing Company and the News Telegraph Company) which had been engaged in the publication of daily newspapers in Sharon, Pennsylvania. Four individuals held all of the capital stock of the Sharon Herald Publishing Company and three individuals held all of the capital stock of the News Telegraph Company. Upon incorporation, taxpayer corporation issued $117,500 seven per cent debenture bonds, 975 shares seven per cent preferred stock having $100 a share par value, and 2500 shares no par common stock to former stockholders of the predecessor companies. Three of the latter received all three securities; one received debenture bonds and preferred stock; one received preferred and common stock and two received only common stock.*fn5 The seven per cent debenture bonds did not contain a written covenant to pay the State tax.
In 1937 taxpayer issued $215,000 new five per cent debenture bonds which were exchanged for the old $117,500 seven per cent bonds and $97,500 preferred stock. Since 1937 some of the original holders have died, their holdings being distributed to their heirs and estates, and additional bonds have been issued both to the original holders and to outsiders. During the taxable years taxpayer's outstanding bonds were held by approximately eighty individuals.*fn6
During the taxable years taxpayer paid the corporate loans tax imposed on its resident bondholders by the Pennsylvania Personal Property Tax Act.
The payments were made with the knowledge, consent and approval of the officers, directors, and stockholders of the taxpayer corporation. The five per cent debenture bonds did not contain a written covenant to pay the tax and the taxpayer did not by formal resolution agree to pay the tax imposed upon its resident bondholders by Section 17 of the Pennsylvania Personal Property Tax Act. The amounts paid were not tax payment levied or assessed against the corporate taxpayer by the Pennsylvania statute.
Existence of an agreement was not recognized in a formal manner until a resolution of taxpayer's board of directors, passed November 15, 1943, was formerly adopted by the stockholders on November 27, 1943. This action was taken to meet the objection raised by the Internal Revenue Bureau in disallowing the deductions for the taxable years. Thereafter, for the same purpose, a rider was attached to the outstanding debenture bonds stating that the state tax on the bond was assumed by the taxpayer corporation and would be paid by it.
The amounts paid by taxpayer were paid from its own funds. The resident treasurer of taxpayer did not at any time assess the State tax against the resident holders of either the seven per cent or five per cent debenture bonds, nor did he notify them that it had assessed and deducted the State tax on the bonds nor did it at any time deduct the amount of taxes from the interest due to the bondholders.
The minutes of the taxpayer did not contain any reference to any undertaking by it to pay the State tax prior to adoption of ...