296 U.S. 374
JOHN A. NELSON CO.
HELVERING, Commissioner of Internal Revenue.
Argued Nov. 19, 20, 1935.
Decided Dec. 16, 1935.
[296 U.S. 374, 375] Mr. J. S. Seidman, of New York City, for petitioner.
The Attorney General and Mr. J. Louis Monarch, of Washington, D.C., for respondents.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
The petitioner contests a deficiency income assessment made on account of alleged gains during 1926. It claims that the transaction out of which the assessment arose was reorganization within the statute. Section 203, Revenue Act, 1926, c. 27, 44 Stat. 9, 11 (26 U.S.C.A. 112 note), is relied upon. The [296 U.S. 374, 376] pertinent parts are in the margin of the opinion in Helvering v. Minnesota Tea Co., 296 U.S. 378 , 56 S.Ct. 269, announced this day.
In 1926, under an agreement with petitioner, the Elliott-Fisher Corporation organized a new corporation with 12,500 shares non-voting preferred stock and 30,000 shares of common stock. It purchased the latter for $2,000,000 cash. This new corporation then acquired substantially all of petitioner's property, except $100,000, in return for $2,000,000 cash and the entire issue of preferred stock. Part of this cash was used to retire petitioner's own preferred shares, and the remainder and the preferred stock of the new company went to its stockholders. It retained its franchise and $100,000, and continued to be liable for certain obligations. The preferred stock so distributed, except in case of default, had no voice in the control of the issuing corporation.
The Commissioner, Board of Tax Appeals, and the court all concluded there was no reorganization. This, we think, was error.
The court below thought the facts showed 'that the transaction essentially constituted a sale of the greater part of petitioner's assets for cash and the preferred stock in the new corporation, leaving the Elliott-Fisher Company in entire control of the new corporation by virtue of its ownership of the common stock.'
True, the mere acquisition of the assets of one corporation by another does not amount to reorganization within the statutory definition. Pinellas, Ice & Cold Storage Co. v. Commissioner of Internal Revenue, 287 U.S. 462 , 53 S.Ct. 257, so affirmed. But where, as here, the seller acquires a definite and substantial interest in the affairs of the purchasing corporation, a wholly different situation arises. The owner of preferred stock is not without substantial interest in the affairs of the issuing corporation, although denied voting rights. The statute does not require participation in the management of the purchaser; nor does it demand that the conveying corporation be dissolved. A controlling interest in the transferee corporation is not made a requisite by section 203(h)(1)( A) (26 U.S.C.A. 112 note). This must not be confused with paragraph (h)( 2) (26 U.S.C.A. 112 note).
Finally, as has been pointed out in the Minnesota Tea Case, paragraph ( h)(1) (B) was not intended to modify the provisions of paragraph (h)(1)(A). It describes a class. Whether some overlapping is possible is not presently important.
The judgment below must be reversed.