#### ALBERT FARWELL BEMIS, TRUSTEE OF THE BEMIS TRUST, v. THE UNITED STATES

[No. E-94.

Decided January 16, 1928]

*On the Proofs*

*Income taw; dividends paid im,*1917 *out of earnings for prior years; “most recently accumulated” profits; proof of date of earnings.*See *Bemis et al.*v. *United States, ante,*p. 457.

*The Reporter’s*statement of the case:

*Mr. Fred T. Field*for the plaintiff. *Mr. Henry R. Brigham*was on the brief.

*Mr. Alexander H.*McGormieh, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

*468Tbe court made special findings of fact, as follows:

I. Throughout the year Í917, for twenty-five years prior thereto, and ever since then, the plaintiff has been and now is a citizen of the Commonwealth of Massachusetts, residing at Newton, in said Commonwealth. By indenture of Judson M. Bemis, dated March 10, 1915, the plaintiff was duly appointed trustee of the Bemis trust and is and has been such trustee ever since March 10, 1915, and all reference hereinafter to plaintiff is as said trustee.

II. The plaintiff, on March 30, 1918, duly filed with the Collector of Internal Revenue for the Third District of Massachusetts a return of the income and excess profits of said trust for the year ended December 31, 1917, as required by the revenue act of 1916 as amended by the revenue act of 1917. The plaintiff kept his books of account on a cash receipts and disbursements basis as distinguished from an accrual basis, and the return for the year 1917 was filed on that basis.

III. The plaintiff included in said return a cash dividend of $20.00 per share (being 20% on a par value of $100.00) on the 8,800 shares of common stock owned by him of the Bemis Bro. Bag Company, a corporation duly organized under the laws of the State of Missouri. This dividend was declared by the directors of said corporation at a duly constituted meeting on January 12, 1917, the following resolution being then adopted:

“ *Dividend.*— It was unanimously resolved to declare a dividend of 20% on the common stock of the company, payable February 1, 1917, to the stockholders of record at the close of business on that day. The treasurer is' hereby authorized to pay this dividend in accordance with this resolution.”

Said dividend was paid on February 1, 1917, pursuant to said resolution. The amount of said dividend received by the plaintiff on February 1, 1917, was $176,000.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

IV. The total net earnings or profits of said Bemis Bro. Bag Company for the entire year 1917 were $5,523,555.85, *469and the total cash payments in 1917 of all dividends were as follows:

Dividend on common stock declared 1/12/17, paid 2/1/17_$1,280,000. 00

Dividend on common stock declared 8/1/17, paid. 8/15/17_ 639, 610. 00

Dividend on preferred stock paid 12/1/17- 80, ,000.00 Cask dividend in lieu of fractional shares of stock

dividend, paid 9/28/17- 1,137.50

V. The Commissioner of Internal Revenue claims that said dividend of Bemis Bro. Bag Company, declared January 12, 1917, which was paid to plaintiff, to wit, the sum of $176,000.00, should be taxed at the rates prescribed by law for the year 1917.

VI. During the year 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 12, 1917, and paid February 1,1917.

During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 12, 1917, and paid February 1, 1917.

Between January 1, 1917, and January 12, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $23,256.80 as his share of the dividend declared on January 12, 1917, and a similar proportion to the other stockholder^ of the corporation.

Between January 1, 1917, and February 1, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $63,060.80 as Eis share of the dividend declared on January 12, 1917, and a similar proportion to the other stockholders of the corporation.

VII. The plaintiff also included in said return for the year 1917, a cash dividend of $10.00 per share on said common stock owned by him of said Bemis Bro. Bag Company. This dividend was declared by the directors of said corporation at a duly constituted meeting on August 1, 1917, the following resolution being then adopted:

“It was unanimously resolved to declare a dividend of 10% on the common stock of the company, payable on *470August 15, 1917, to stockholders of record at the close of business on that day, out of the surplus accumulated prior to March 1, 1918. The treasurer is hereby authorized to pay this dividend in accordance with this resolution.”

Said dividend was paid on August 15, 1917, pursuant to said resolution. The amount of said dividend received by plaintiff on August 15, 1917, was $88,000.00, and was included by him in said return for the year 1917 in block “ F ” as taxable at the rates prescribed by law for the year 1917. In said return after block “ F ” the plaintiff included the following statement:

“ I return under protest the item of dividend received by me from the Bemis Bró. Bag Co. on August 15, 1917, which dividend was declared August 1, 1917, and was paid out of surplus of the said company accumulated prior to March 1, 1913, on the ground that the said income is not taxable under the terms of said act of September 8, 1916, or the amendment thereof of October 3, 1917.”

■VIII. The Commissioner of Internal Revenue determined that said dividend should be taxed at the rates prescribed by law for the year 1917.

IX. On August 1, 1917, and on August 15, 1917, the corporation had on hand sufficient surplus and undivided profits accumulated prior to March 1, 1913, out of which to pay in full the dividend declared August 1, 1917, and paid August 15, 1917.

On August 1, 1917, and on August 15, 1917, the corporation had on hand surplus and undivided profits accumulated after January 1, 1917, sufficient to pay in full the dividend declared August 1, 1917, and paid August 15, 1917.

X. The plaintiff also included in said return a cash dividend of $1.75 per share on 300 shares of the preferred stock owned by him of the American Sugar Refining Compnay, a corporation duly organized under the'laws of the State of New Jersey. This dividend was declared by the directors of said corporation at a duly constituted meeting in November, 1916, and was paid January 2, 1917. The amount of said dividend received by plaintiff on January 2, 1917, was $525.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

*471XI. The Commissioner of Internal Revenue claims that said dividend should be taxed at the rates prescribed bylaw for the year 1911.

XII. During the year 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared November, 1916, and paid January 2, 1917.

During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared November, 1916, and paid January 2, 1917.

Between January 1, 1917, and January 2, 1917, the corporation accumulated surplus and undivided profits sufficient to pay plaintiff the sum of $131.25 as his share of the dividend declared November, 1916, and a similar proportion to the other stockholders of the corporation.

XIII. The plaintiff also included in said return a cash dividend of $2.00 per share on 1,000 shares owned by him of the American Telephone and Telegraph Company, a corporation duly organized under the laws of the State of New York. This dividend was declared by the directors of said corporation at a duly constituted meeting on December 20, 1916, the following resolution being then adopted:

*“Resolved,*That the treasurer be, and he is hereby, directed to pay on Monday, January 15, 1917, a quarterly dividend of two dollars per share to stockholders of record at the close of business on Saturday, December 30, 1916.”

Said dividend was paid January 15,1917, pursuant to said resolution. The amount of said dividend received by plaintiff on January 15, 1917, was $2,000.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

XIV. The Commissioner of Internal Revenue claims that said dividend should be taxed at the rates prescribed by law for the year 1917.

XY. During the year 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared December 30, 1916, and paid January 15, 1917.

*472During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared December 30, 1916, and paid January 15, 1917.

Between January 1, 1917, and January 15, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $93.24 as his share of the dividend declared December 30,1917, and a similar proportion to the other stockholders of the corporation.

XYI. The plaintiff also included' in said return a cash dividend of $3.50 per share on 500 shares owned by him of the preferred stock of the Chicago, Milwaukee and St. Paul Railway Company, a corporation duly organized under the laws of the State of Wisconsin. This dividend was declared by the directors of said corporation at a duly constituted meeting on January 31, 1917, and was paid March 1, 1917. The amount of said dividend received by plaintiff on March 1, 1917, was $1,750.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

XVII. The Commissioner of Internal Revenue claims that the total dividend paid March 1, 1917, on said preferred shares of stock should be taxed at the rates prescribed by law for 1917.

XVIII. During the year 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 31, 1917, and paid March 1, 1917.

During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 1, 1917, and paid March 1, 1917.

Between January 1, 1917, and March 1, 1917, the corporation had not accumulated surplus or undivided profits out of which to pay any part of the dividend declared January 31, 1917, and paid March 1, 1917.

XIX. The plaintiff also included in said return a cash dividend of $3.50 per share on 500 shares of preferred stock owned by him of the Chicago, Milwaukee and St. Paul Railway Company, which was declared by the directors of *473said corporation at a duly constituted meeting on July 26, 1917, and was paid September 1, 1917. The amount of said dividend received by plaintiff on September 1, 1917, was $1,750.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

XX. The Commissioner of Internal Revenue claims that the total dividend paid September 1, 1917, on said preferred shares of stock should be taxed at the rates prescribed by law for 1917.

XXI. During the year’ 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared July 26, 1917, and paid September 1, 1917.

During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared July 26, 1917, and paid September 1, 1917.

Between January 1, 1917, and July 26, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $1,750.00 as his share of the dividend declared on July 26,1917, and a similar proportion to the other stockholders of the corporation.

Between January 1, 1917, and September 1, 1917, the corporation, accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $1,750.00 as his share of the dividend declared on July 26, 1917, and a similar proportion to the other stockholders of the corporation.

XXII. The plaintiff also included in said Return a cash dividend of $3.00 per share on 200 shares of stock owned by him of the Edison Electric- Illuminating Company, a corporation duly organized under the laws of the Commonwealth of Massachusetts. This dividend was declared by the directors of said corporation at a duly constituted meeting on January 11, 1917, payable on February 11, 1917, from earnings for the year 1916. Said dividend was paid on February 11, 1917. The amount of said dividend received by plaintiff on February 11, 1917, was $600.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

*474XXIII. The Commissioner of Internal Kevenue claims that said dividend should be taxed at the rates prescribed by law for 1917.

XXIY. During the year 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 11, 1917, and paid February 11, 1917.

.During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 11, 1917, and paid February 11, 1917.

Between January 1, 1917, and January 12, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $89.28 as his share of the dividend declared on January 11,1917, and a similar proportion to the other stockholders of the corporation.

Between January 1, 1917, and February 11, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $335.18 as his share of the dividend declared on January 11, 1917, and a similar proportion to the other stockholders of the corporation.

XXV. The plaintiff also included in said return a cash dividend of $1.50 per share on the 500 shares of the first preferred stock owned by him of the W. H. McElwain Company, a corporation duly organized under the-laws of the Commonwealth of Massachusetts. This dividend was declared at a duly constituted meeting of the directors of said corporation held on January 4, 1917, when the following resolution was passed:

“Voted: That the regular quarterly dividend of 1 *y2%*($1.50 per share) upon the first preferred, second preferred, and common stock of *W.*H. McElwain Company be, and hereby is, declared out of its surplus profits already accrued, such dividend to be payable February 1,1917, to stockholders •of record at the close of business January 15, 1917, in proportion to their respective holdings.”

This dividend was paid on February 1, 1917, pursuant to said resolution. The amount of said dividend received by plaintiff on February 1, 1917, was $750.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

*475XXVI. The Commissioner of Internal Revenue claims that said dividend should be taxed at the rates prescribed by law for the year 1917.

XXVII. During the year 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 4, 1917, and paid February 1, 1917.

During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 4,1917, and paid February 1, 1917.

Between January 1, 1917, and January 4, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $236.03 as his share of the dividend declared January 4, 1917, and a similar proportion to the other stockholders of the corporation.

Between January 1, 1917, and February 1, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $750.00 as his share of the dividend declared on January 4, 1917, and a similar proportion to the other stockholders of the corporation.

Between January 1, 1917, and January 15, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $375.00 as his share of the dividend declared on January 4, 1917, and a similar proportion to the other stockholders of the corporation.

XXVIII. The plaintiff also included in said return a cash dividend of $1.75 per share on 500 shares owned by him of the Northern Pacific Railway Company, a corporation duly organized under the laws of the State of Wisconsin. This dividend was declared by the directors of said corporation at a duly constituted meeting on December 11, 1916, payable February 1, 1917, and was paid February 1, 1917. The amount of said dividend received by plaintiff on February 1, 1917, was $875.00, and was included by him in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

XXIX. The Commissioner of Internal Revenue claims that said dividend should be taxed at the rates prescribed by law for 1917.

*476XXX. During the year. 1916 the corporation accumulated sufficient surplus and undivided profits out of which ,to pay in full the dividend declared December 11, 1916, and paid February 1,1917.

During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared December 11, 1916, and paid February 1, 1917.

Between January 1, 1917, and February 1, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $860.84 as his share of the dividend declared on December 11, 1916, and a similar proportion to the other stockholders of the corporation.

XXXI. The plaintiff also included in said return a cash dividend of $1.76 per share on 300 shares of preferred stock owned by him of the United States Steel Corporation, a corporation duly organized under the laws of the State of New Jersey. This dividend was declared by the directors of said corporation at a duly constituted meeting on January 30, 1917, payable February 27, 1917, and was paid February 27, 1917. The amount of said dividend received by plaintiff on February 27, 1917, was $525.00, and was included by him ,in said return in block “ F ” as taxable at the rates prescribed by law for the year 1916.

XXXII. The Commissioner of Internal Bevenue claims that said dividend should be taxed at the rates prescribed by Jaw for 1917.

XXXIII. During the year 1916 the corporation accumulated sufficient surplus and undivided profits out of which to pay in full the dividend declared January 30, 1917, and paid February 27, 1917.

During the year 1917 the corporation accumulated sufficient surplus and undivided profits out of which to pay in foil the dividend declared January 30,1917, and paid February 27, 1917.

Between January 1, 1917, and January 30, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $525.00 as his share of the dividend declared on January 30, 1917, and a similar proportion to the other stockholders of the corporation.

*477Between January 1, 1917, and February 27, 1917, the corporation accumulated surplus and undivided profits sufficient to pay to plaintiff the sum of $525.00 as his share of the dividend declared on January 30, 1917, and a similar proportion to the other stockholders of the corporation.

XXXIY. The plaintiff also included in said return a cash dividend of 6% on 7,500 shares of the preferred stock owned by h,im of the Angus Jute Company, Ltd., a foreign corporation organized under the Indian companies’ act (1882) and doing business in India, and a cash dividend of 6% per annum for ten months on 7,500 other shares of said preferred stock that had been owned by him since March 1, 1916. Said dividends were paid February 15, 1917. The amount of said dividends received by plaintiff on February 15, 1917, was $27,500.00, and was included in said return in block “ H ” entitled “ Other income,” under the item “ Interest on bonds of foreign countries and corporations and dividends on stock of foreign corporations,” as taxable at the rates prescribed by law for the year 1916.

XXXY. In accordance with the articles of association of said corporation, at the ordinary meeting of the corporation held February 27, 1917, the directors laid before the corporation a profit and loss account and a balance sheet containing a summary of the property and liabilities of the corporation made up to December 31, 1916, and such balance sheet was accompanied by a report of the directors as to the state and condition of the corporation and as to the amount which they recommended to be paid out of the profits by way of dividends to the members. This report was adopted by the directors at a meeting held on February .23, 1917, and the dividends were confirmed by the stockholders at said meeting held February 27, 1917.

XXXYI. The total net earnings or profits of said Angus Jute Company, Ltd., for the entire year 1917 were $685,-894.29, and the total cash payments in 1917 of the aboye dividends were as follows:

Preferred dividend paid February 15, 1917, and declared

February 27, 1917_1_$69, 340. 50

Ordinary dividend paid February 21, 1917, and declared

February 27, 1917___ 292,426.14

*478XXXVII. The Angus Jute Company, Ltd., a foreign corporation, was not engaged in business in the United States and derived no part of its income or profits for the year 1917 or other years from ■ any sources within the United States, and it paid no income tax to the United States and filed no returns of income in the United States, and it was not taxable upon its net income under the internal-revenue laws of the United States.

XXXVIII. The Commissioner of Internal Revenue determined that said dividend was taxable at normal and surtax rates as other income under block “ II ” in said return at the rates prescribed by law for 1917.

XXXIX. In the year 1918 the Commissioner of Internal Revenue, claiming to act pursuant to the revenue act of 1916, as amended by the revenue act of 1917, assessed against plaintiff income and excess-profits taxes for the year ended December 31, 1917, amounting to $97,000.91, and in June of 1918 the Collector of Internal Revenue for the Third District of Massachusetts, by notice and demand, demanded from plaintiff the payment of said income and excess-profits taxes in accordance with the assessment made by said commissioner. Thereafter, on June' 14, 1918, the plaintiff paid to said collector under duress and compulsion and solely for the purpose of avoiding imposition of the penalties and interest specified in said notice and demand and provided in said acts for cases of failure to pay income and excess-profits taxes the sum of $87,100.91, and on April 21, 1919, paid the sum of $9,900.00 under protest:

XL. On or about February 12, 1923, the plaintiff duly filed with the Commissioner of Internal Revenue a claim for refund or credit for $76,458.00, or such greater amount as is legally refundable, and interest thereon from June 13, 1918.

XLI. On March 1, 1923, the Commissioner of Internal Revenue allowed a claim for credit filed on or about June 8, 1920, in the amount of $24,573.58 against taxes assessed on income for the year 1919, payable June 15, 1920, and disallowed the balance of said claim, and on May 24,1923, notified plaintiff of such allowance. The Commissioner of Internal Revenue has rendered no decision on said claim for refund *479filed February 12,1923, and six months have elapsed from the date of filing such claim.

XLII. A true and correct summary of plaintiff’s total income received from all sources during the calendar year 1917, with allowable deductions for computing net taxable income, is as follows: ,

Block IT, dividends domestic corporations (including those

herein referred to)-$308,145.00 Block H:

Interest on bonds_ 31,188.88

Dividends foreign corporations_ 27, 500. 00

Interest foreign bonds_ 3,750.00

Interest bank deposits_ 8,376.48

Block J, deductions:

Massachusetts income tax_ 6, 966.45

Expense_ 565. 00

XLIII. If all the dividends in question in this case were taxable at 1917 rates the correct computation of tax would be as follows:

Block E, dividends received_$308,145. 00 Block H:

Interest on bonds_ 31,188.88

Dividends foreign corporations_ 27, 500. 00

Interest foreign bonds_ 3, 750.00

Interest bank deposits_ 8, 376.48

Total income_ 378, 960. 36

Block J, deductions:

Massachusetts income tax_$6, 966.45

Expense_!_ 565. 00

7, 531.45

Net taxable income_ 371, 428.91

Less:

Dividends domestic corporation_$308,145.00

Exemption_ 1, 000.00

- 309,145.00

Income subject to normal tax_ 62, 283. 91

Normal tax, 2%, on $62,283.91, 1917_ 1, 245. 68

Normal tax, 2% on $60,283.91, 1916_ 1,205. 68

Surtax, net taxable income_ 113, 657.30

Total tax__ 116,108.66

The amount of tax paid was_ 97,000.91

Against which a credit was allowed amounting to_ 24, 573. 58

Making the total tax paid.

72,427.33

*480Graham, *Judge,*

delivered the opinion of the court:

The plaintiff as trustee of the Bemis Trust is suing to recover income and excess-profits taxes claimed to have been illegally assessed, and the defendant counterclaims for a sum in excess of the amounts assessed and collected.

The principles applicable to this case are the same as in the case of *Albert Bemis, Alice B. Taylor, and Maude B. Parsons*v. *United States,*No. E-432, *ante,*p. 457, this day handed down, and the authorities there cited are controlling here. It is therefore unnecessary to review the law.

On June 8, 1920, plaintiff filed a claim for credit against income taxes assessed against him for the year 1919, upon the ground that the stock dividend of the Bemis Bro. Bag Co. declared and paid in 1917 had been illegally taxed, and on February 12, 1923, plaintiff filed a further claim for credit or refund in the sum of $76,458, with interest (which included the claim for credit filed June 8, 1920), for taxes illegally assessed against him at the 1917 rate. The commissioner allowed a credit of $24,573.58 on the claim filed June 8, 1920, but disallowed the balance, and having failed to render a decision on the plaintiff’s claim filed February 12, 1923, plaintiff brought this suit.

All of the dividends in question were paid to and received by plaintiff in the year 1917. The earnings for 1917 of the companies from which the plaintiff received the dividends were sufficient to pay the dividends declared by them during that yeah. The facts found show that the deficiency in 1917 earnings prior to the payment of the dividends was as follows:

Deficiency _

Bemis Bro. Bag Co., paid Feb. 1, 1917-$112,939.20

American Sugar Refining Co., paid Jan. 2, 1917- 393.75

American Telephone & Telegraph Co., paid Jan. 15, 1917_ 1, 906. 76

Chicago, Milwaukee *&*St. Paul Ry. Co., paid Mar. 1, 1917_ 1, 750. 00

Edison Electric Illuminating Co., j>aid Feb. 11, 1917_ 264. 82

Northern Pacific Railway Co., paid Feb. 1, 1917_ 514. 66

Total_ 117, 769.19

Deducting from the total amount of dividends received from domestic corporations, $308,145, the deficiency of $117,-769.19, there remains a balance of $190,375.85 taxable at the *4811917 rate. Under the law plaintiff is entitled to a refund on account of the deficiency of $117,769.19.

It is not for the court to calculate the tax; nor has it been possible to do so from the facts. An opportunity will be afforded the parties to stipulate the amount of said fax in accordance with the foregoing conclusions, and to submit an agreement covering the amount of judgment to be entered in favor of the plaintiff. For this purpose further consideration of the case is deferred for thirty (30) days.

Moss, Judge, and Booth, Judge, concur.

On February 6, 1928, on motion made therefor, and it appearing from a stipulation, duly filed in conformity to the order of the court, that recalculation of the tax developed no overpayment, the petition was dismissed.