Francis C. Whelan, You. S. Atty., to have South Dist. out of Ca, from the Devoted Elizabeth. Keir, Asst. U. S. Atty., Captain, Income tax Area, Los angeles, Cal., having defendant.
Thereafter, toward April 19, 1957, Movie industry matched towards Household. The corporate lifestyle regarding Movie industry terminated however, their whole company is actually proceeded in the place of interruption given that a part of plaintiff relationship, Household.
Most of the procedural requirements was complied that have from the Plaintiff. This Legal enjoys jurisdiction by the advantage away from twenty-eight U.S.C. 1346(a) (1) and you can 1402(a) (1), and you can 26 U.S.C. 7422. The amount of money tax, if any, is the fact out of Hollywood, but Domestic would-be accountable just like the transferee features paid back like taxation once the transferee.
Webster, bought all the the make sure stock out-of Movie industry Savings and you can Mortgage Connection (hereinafter named “Hollywood”)
One to top point and lots of secondary affairs is actually showed from the pleadings, but a decision towards the first situation gets rid of the outcome within its entirety.
Into the February regarding 1957, Plaintiff Domestic Deals and you can Mortgage Connection, transferee (hereinafter also known as “Home”) employing lawyer and agent, Thomas C
The key concern is: Within the a merger, does the latest set aside having bad debts of your merged firm feel expidited toward money considering the merger? *135 Specifically here, if the pre-merger set-aside having money owed out-of Movie industry at the time of April 19, 1957, be included in its money with its finally come back?
The problems given that presented on the pleadings and the history of the scenario are on the foundation one to Hollywood was a wholly-owned subsidiary from House and you may, hence, the fresh merger is pursuant so you’re able to twenty six You.S.C. 332. (The section records hereinafter are to the inner Revenue Code out-of 1954). Although not, this approach disregards the actual unusual corporate design regarding a discount and you will loan organization beneath the rules of the County away from California. While you are all make sure inventory of Hollywood are owned by House, this new depositors out-of Hollywood, whom, less than Ca rules, are called “investors,” got a straight to choose, a directly to decide members of the latest Board out-of Directors ( not a majority of such as Board), and choose of two-thirds ( 2/3 rds) of such investors was a need for the latest merger. Part 332 requires that the mother or father agency be the holder off inventory “having at least 80 % of the overall combined voting fuel of all the groups of stock permitted vote.” When you find yourself not as much as Ca legislation this new depositor-shareholder’s focus are denominated “shares” in the place of “inventory,” the new managing foundation isn’t the label of the brand new depositor-shareholder’s attention but the top-notch liberties, preferences and you may privileges associated with like focus. Because the an enthusiastic affirmative several-thirds vote of one’s depositor-shareholders must accept the newest merger, and since for example depositor-shareholders encountered the straight to elect a specific amount of participants of your own Board regarding Directors, upcoming until Domestic and additionally owned 80% of this https://paydayloansconnecticut.com/cornwall-bridge/ kind of display entitled to vote, the fresh merger could not be considered below Sec. 332 once the an effective liquidation regarding a part. House did not individual some of these types of express; ergo, Area 332 wasn’t relevant.
Following the merger out of Movie industry and you can House, the fresh depositor-shareholders regarding Hollywood became the new depositor-investors away from Domestic. After that, the new depositor-investors regarding Movie industry met with the same professional-rata continuous demand for Family because they had before the merger on the a beneficial consolidated base. The merger anywhere between Movie industry and you may Home was a statutory merger reorganization once the one to name is used in Sec. 368(a) (1) (A). Below any idea, there clearly was sufficient continuity of great interest.
During the a beneficial reorganization, the new set-aside to possess money owed of combined business is not accelerated to the money considering the merger.