The Secretary thereupon stated that an offer had been received from William O. Hayden, proposing to transfer and convey all of his rights, interests and etc., in a certain agreement dated April 8, 1960, by and between William O. Hayden and International Artists, Incorporated. Thereupon, the Secretary presented to the board the proposal as presented in a letter bearing date May 20, 1960, and signed by Mr. William O. Hayden * * *

* * * *

Thereupon, the foregoing offer was fully discussed and considered, and upon motion duly made, seconded and duly adopted, the following preamble and resolution was unanimously adopted.

Whereas, William O. Hayden has offered to convey and transfer to this corporation all of his right, title and interest in and to a certain agreement, as set forth1969 U.S. Tax Ct. LEXIS 50">*60 in a letter directed to this Corporation dated May 20, 1960, together with a copy of the agreement attached to said letter; and

Whereas, in the judgment of the incorporators of this Corporation, said agreement is in keeping with the purposes for which this Corporation was founded and in keeping with its charter and said agreement is necessary for the business of this Corporation:

Now, Therefore, Be It Resolved: That the offer of William O. Hayden, to convey and transfer to this Corporation all of his rights, ownership, agreements, title and interests in the agreement hereinabove referred to and described or known as that certain agreement dated the 8th day of April, 1960 by and between William O. Hayden and International Artists, Incorporated, is in keeping with the purposes of this Corporation, be, and it is hereby accepted, and the proper officers of this Corporation be, and they are hereby authorized and directed to accept the agreement for this corporation.

The Chairman stated that sums of money had been received upon stock subscriptions in an amount as stated in the articles of Incorporation.

52 T.C. 1112">*1117 Thereupon, the following resolution being duly moved and seconded and receiving1969 U.S. Tax Ct. LEXIS 50">*61 the affirmative vote of all present, was declared adopted:

Resolved: That this corporation do [sic] assume and agree to pay all proper fees and expenses incurred by its incorporators in the formation of this corporation and the expenses and obligations created by its incorporators in the conduct of the business of the Corporation between the issuance of the charter of this Corporation and the date of this meeting, all accounts of the incorporators in suck [sic] connection being hereby ratified and confirmed.

The Chairman then went on to discuss and stated that the stock being issued and the farther [sic] increase in the capitalization as had been generally discussed among the incorporators, was all in accordance with a plan as permitted under the provisions of Section 1244-IRC, and all acts of the corporation would have to be within the provisions of Section 1244-IRC.

A general discussion of the provisions of Section 1244-IRC was held and entered into by all of those present. After discussion all agreeded [sic] to the issuance of stock under the provisions of Section 1244-IRC.

There being no further business to come before the meeting it was declared adjourned.

The following handwritten1969 U.S. Tax Ct. LEXIS 50">*62 document, dated May 21, 1960, the day of the organization meeting, was prepared and signed by William Hayden as president of Spectacular Shows, Inc., pursuant to the advice of their accountant:

Spectacular Shows, Inc.

All of the attached stock is issued under Sec. 1244 and the maximum amount to be issued under the plan will be 5,000 shares at $ 1.00 per share.

All of this stock (5,000 shares) will be issued within 2 years and by no later than May, 1962.

On this same date, May 21, 1960, Jack Hayden, as secretary of the corporation, signed the three stock certificates, which had been prepared on April 25, 1960, and the president, William O. Hayden, signed Jack's and Daniel's. The certificate for William's 350 shares was prepared for execution by the vice president but was apparently never signed by that officer. Such certificates were physically delivered to Jack, William, and Daniel Hayden on May 21, 1960, or some time subsequent thereto.

During the period from July 5, 1960, to November 29, 1961, petitioners made the following payments to or on behalf of Spectacular Shows, Inc.:

1969 U.S. Tax Ct. LEXIS 50">*63 52 T.C. 1112">*1118 The individual breakdown of the totals of these payments is as follows:

The above payments were reflected on the corporation's records by the accountant as "advances." The accountant's understanding of the "advances" account for each of the petitioners was that the petitioners had made certain payments to or on behalf of the corporation, that these were advances of capital and that each of petitioners was to receive stock certificates in return for such payments. The accountant had previously advised petitioners that stock certificates should be issued for each payment if they wanted to stay within the provisions 52 T.C. 1112">*1119 of section 1244. Petitioners never intended that the corporation repay the advances; they were not meant to be loans and no notes or other evidences of debt were ever issued.

William Hayden was in charge of issuing the stock certificates. He found it too troublesome to issue a stock certificate every time an advance was made. All the payments by petitioners, while made as the corporation was in the need of money, were intended1969 U.S. Tax Ct. LEXIS 50">*64 as equity investments, as payments for stock, which William Hayden, at some convenient point, was to issue.

The petitioners soon became aware of the fact that these payments were going to exceed the authorized capital amount of $ 5,000 as set out in the certificate of incorporation. Upon the advice of their accountant, petitioners acted to increase the authorized capital of the corporation. Their advances as of September 20, 1960, exceeded $ 7,000 in total amount.

A special meeting of the board of directors was called on September 26, 1960, the minutes of which provided, in pertinent part, as follows:

Thereupon, the meeting proceeded to a discussion of an amendment [sic] to the corporation's Articles of Incorporation to authorize 50,000 common shares with a par value of $ 1.00 each rather than 5,000 common shares which the corporation is presently authorized to issue. In the discussion it was brought out that at the organization meeting, May 19, 1960, that all stock issued would have to be issued in accordance with Section 1244-IRC and the amendment [sic] would be following the general plan of stock issued in accordance with the provisions of Section 1244-IRC, as adopted by the1969 U.S. Tax Ct. LEXIS 50">*65 stockholders at the organization meeting of May 19, 1960.

Following a general discussion and upon motion duly made and seconded, the following resolution was unanimously adopted:

Be It Resolved: That paragraph Four of the Articles of Incorporation of Spectacular Shows, Inc., a corporation, be, and the same hereby is, amended, to read as follows:

# The amount of the total authorized capital stock of said corporation shall be $ 50,000.00 dollars which shall be divided into 50,000 shares of the par value of $ 1.00 dollar each.

Be It Further Resolved: That the authorized capital of Spectacular Shows, Inc., be increased from 5,000 of the par value of one dollar each to 50,000 shares of the par value of one dollar each, so that the authorized capital stock of said corporation shall be fifty thousand dollar. [sic]

On October 14, 1960, the secretary of state of West Virginia authorized an increase in the capital stock of the corporation to 50,000 shares of stock at a par value of $ 1 per share, thus increasing the authorized capital stock of such corporation to $ 50,000.

On September 27, 1961, approximately 1 year later, a special meeting of the board of directors was called to discuss the1969 U.S. Tax Ct. LEXIS 50">*66 unsuccessful 52 T.C. 1112">*1120 plight of the Japanese spectacular. The minutes of such meeting read in part as follows:

The President proceeded to address the board to advise them that Mr. Hetzer, President of International Artists, Inc., had advised him the personnel of the Japanese Spectacular had been returned to Japan from Miami, Florida on September 23rd and Sept. 25, 1961 and the show was no longer in existence. This was not tottally [sic] unexpected as he had kept the board memebers [sic] informed of the serious situation since the cancellation of the South American contract, the lack of bookings for the show, and the serious financial condition of International Artists, Inc. Farther, [sic] he stated he did not feel that we could obtain any part of the money from International Artists, Inc., as they were in a bankrupt condition. Under the circumstances, as known to him or within his knowledge, he felt that the money due from International Artists, Inc., was a total loss.

After a general discussion by the board members no suggestion could be arrived thereat for a remedy to the matter. Legal counsel in the person of Mr. Wm. Beatty of the law firm, Fitzpatrick, Huddleston, and Bolen1969 U.S. Tax Ct. LEXIS 50">*67 was contacted. Mr. Beatty stated he did not feel we had the opportunity of collecting from International Artists, Inc. because he had some knowledge of the amount and many debts which they owed.

On November 30, 1961, the corporation issued stock certificates, executed on that date, to petitioners for the numbers of shares designated below: William Hayden -- 9,537, Jack Hayden -- 7,691, Daniel Hayden -- 5,836, O. M. Hayden -- 1,300. The number of shares designated on each stock certificate corresponded to the total amounts, excluding the initial subscription payments, that were paid by each petitioner to or on behalf of the corporation during the period of July 5, 1960, to November 29, 1961. ³ All of the above-described stock was worthless on November 30, 1961, the date that these certificates were issued to petitioners.

1969 U.S. Tax Ct. LEXIS 50">*68 On their 1961 Federal income tax returns, the petitioners claimed ordinary losses under section 1244 with respect to the stock of Spectacular Shows, Inc., which were computed as follows:

In his notices of deficiency to the petitioners regarding the taxable year 1961, respondent determined that petitioners were not entitled to deduct the above losses as ordinary losses. In his computations of the corrected income tax liabilities of the petitioners, respondent treated such losses as capital losses, allowing them as such in each 52 T.C. 1112">*1121 instance. Petitioners alleged error with respect to these determinations in their respective petitions claiming that the amounts claimed as ordinary loss deductions on section 1244 stock should have been allowed.

OPINION

The initial issue presented for decision is whether Spectacular Shows, Inc., adopted a plan meeting the requirements of section 1244(c)(1)(A) and the underlying regulations thereto. If that issue is determined1969 U.S. Tax Ct. LEXIS 50">*69 in the affirmative, we must further decide whether all or any part of the stock issued to petitioners by Spectacular Shows, Inc., was issued pursuant to such plan. There is no question as to the other statutory requirements with respect to section 1244 stock.

Section 1244, the pertinent portions of which are set forth in the footnote below, ⁴ was enacted to encourage the flow of new funds into 52 T.C. 1112">*1122 small businesses. H. Rept. No. 2198, 85th Cong., 2d Sess., p. 4 (1959), 1959-2 C.B. 711. In effectuating this purpose, section 1244 provides ordinary-loss treatment where the original holder of what is termed "section 1244 stock" realizes a loss on such stock.

1969 U.S. Tax Ct. LEXIS 50">*70 Section 1244(c)(1) supplies the definition of "section 1244 stock." Initially, it provides that the term "section 1244 stock" means common stock in a domestic corporation if such corporation adopted a plan after June 30, 1958, to offer such stock for a specified period ending not later than 2 years after the date such plan was adopted. Sec. 1244(c)(1)(A).

Section 1244(e) provides that the Secretary or his delegate shall prescribe such regulations as may be necessary to carry out the purposes of this section. Section 1.1244(c)-1, Income Tax Regs., as promulgated pursuant to this authority provides, in pertinent part, as follows:

Sec. 1.1244(c)-1. Section 1244 stock defined.

(a) In general. In order that stock may qualify as section 1244 stock the requirements described in paragraphs (b) through (h) of this section must be satisfied. * * *

(b) Common stock. Only common stock, either voting or nonvoting, in a domestic corporation may qualify as section 1244 stock. * * *

(c) Written plan. (1) The common stock must be issued pursuant to a written plan adopted by the corporation after June 30, 1958, to offer only such stock during a period specified in the plan ending1969 U.S. Tax Ct. LEXIS 50">*71 not later than two years after the date the plan is adopted. * * * The plan must specifically state, in 52 T.C. 1112">*1123 terms of dollars, the maximum amount to be received by the corporation in consideration for the stock to be issued pursuant thereto. * * *

Thus, by virtue of the above-quoted provisions of section 1244(c) (1)(A) and underlying regulations, there are presented the following initial requirements for qualification under section 1244:

1. The corporation must adopt a written plan sometime after June 30, 1958, to offer only common stock.

2. Such plan must specifically state, in terms of dollars, the maximum amount to be received by the corporation in consideration for the stock to be issued pursuant thereto.

3. A period of time must be specified for the offering of stock, such period ending not later than 2 years after the date of the adoption of the plan.

The regulation's requirement of having the plan in writing so as to evidence tangibly the intent to fall within the provisions of section 1244 finds direct support in the legislative history of section 1244. The House committee report provides, inter alia, that "Such plan jury could properly find or infer, beyond a1969 U.S. Tax Ct. LEXIS 50">*72 reasonable doubt,' that (1959), 1959-2 C.B. 714. This requirement of the regulation has been specifically upheld by us as a reasonable interpretation of section 1244. Wesley H. Morgan, 46 T.C. 878">46 T.C. 878 (1966).

In our determination as to whether Spectacular Shows, Inc., adopted a valid written plan, we first examine the corporate minutes of the organization meeting held on May 21, 1960. The minutes record the adopted bylaws of the corporation which designate, inter alia, that the capital stock of the corporation shall be such as is set out in the certificate of incorporation. The original, May 19, 1960, certificate of incorporation, although it is not specifically stated therein, makes it quite clear that the incorporators intended to issue only 5,000 shares of common stock at a par value of $ 1 each; the only stock subscribed for by the incorporators is specifically stated to be common stock; we cannot find any possible way to interpret the certificate of incorporation as authorizing the issuance of preferred stock.

As stated in the original certificate of incorporation, the total authorized capital stock of the corporation1969 U.S. Tax Ct. LEXIS 50">*73 was $ 5,000, to be divided into 5,000 shares at the par value of $ 1 each. Without anything else, it might be in the realm of speculation for us to determine whether the 5,000 shares were intended to be common stock or preferred stock; but there are further indications in the certificate which clarify this matter. In the portion of the certificate regarding stock subscriptions, it is designated that each of the three original incorporators was subscribing to 350 shares of common stock. That part of the subscription information regarding preferred stock for each of the incorporators 52 T.C. 1112">*1124 was first typed in with the designation of "none." At some time subsequent to the typing in of the response of "none," the subscription information in the certificate relating to preferred stock was crossed out. Under that portion of the certificate regarding stock subscriptions there was a further informational request that the space below be used for any statements as to stock without par value, or where more than one class of stock was to be issued, or where one or more series was to be issued within a class of stock. The space below this request was left blank. All of these indications1969 U.S. Tax Ct. LEXIS 50">*74 make it quite obvious that the original certificate of incorporation authorizes the issuance of only 5,000 shares of common stock and that no preferred stock was to be issued.

Referring back now to the minutes of the organization meeting on May 21, 1960, we find that there was some discussion by the board of directors specifically indicating their intent to adopt a plan to fall within the provisions of section 1244 and that all the stock being issued by the corporation was to be in accordance with this plan. The "plan" to which the minutes make reference is found in a handwritten document, dated May 21, 1960, which was prepared and signed by William Hayden as president of Spectacular Shows, Inc. The document provides as follows:

Spectacular Shows, Inc.

All of the attached stock is issued under Sec. 1244 and the maximum amount to be issued under the plan will be 5,000 shares at $ 1.00 per share.

All of this stock (5,000 shares) will be issued within 2 years and by no later than May, 1962.

Upon reviewing the minutes of the May 21, 1960, meeting, the original certificate of incorporation, and the handwritten document dated May 21, 1960, it is our conclusion that these documents, 1969 U.S. Tax Ct. LEXIS 50">*75 when taken together, present a written plan meeting the requirements of section 1244(c)(1)(A) and underlying regulations thereto:

1. At some time after June 30, 1958, the corporation did adopt a written plan, as embodied in these documents, to offer only common stock to its shareholders.

2. Such plan specifically stated, in terms of dollars, 5,000 shares at $ 1 per share, the maximum amount to be received by the corporation in consideration for the stock to be issued pursuant thereto.

3. A period of time which was to end no later than 2 years after the date of the adoption of the plan was specified therein.

In other section 1244 cases involving a written plan comprised of several documents, this Court has held that such documents would not constitute a valid plan if, when taken together, they would still be incomplete without further reference to computations and events outside 52 T.C. 1112">*1125 of them. See Pierre Godart, 51 T.C. 937">51 T.C. 937 (1969); Bernard Spiegel, 49 T.C. 527">49 T.C. 527 (1968); James A. Warner, 48 T.C. 49">48 T.C. 49 (1967), affd. 401 F.2d 162 (C.A. 9, 1968). Such is not the situation1969 U.S. Tax Ct. LEXIS 50">*76 in the case before us. No computation or reference has to be made outside of the minutes of May 21, 1960, and the two writings to which it makes reference. Within these documents, the corporation has clearly evidenced its intent to comply with the requirements set out in the provisions of section 1244(c)(1)(A) and the regulations. Sec. 1.1244(c)-1, Income Tax Regs.

Respondent contends that by virtue of the language contained in the May 21, 1960, handwritten document that "All of this stock * * * will be issued within 2 years and by no later than May, 1962," it is therefore possible for the stock to be issued at a time subsequent to 2 years after the adoption of the plan. He interprets the language "no later than May, 1962" as meaning no later than May 31, 1962, which is more than 2 years after May 21, 1960, when the overall plan was adopted. We cannot agree with respondent's interpretation of this language. When "no later than May, 1962" is read in context with the earlier part of the same sentence which provides that "All of this stock * * * will be issued within 2 years," and the document in which this sentence appears is dated May 21, 1960, we have to conclude that the only1969 U.S. Tax Ct. LEXIS 50">*77 reasonable interpretation thereof dictates the finding that May 1, 1962, which would be within 2 years after the adoption of the plan, was the final date contemplated for the issuance of stock, rather than May 31, 1962, as urged by respondent. Even if it were to be concluded that May 1, 1962, is not the correct interpretation of the phrase "no later than May, 1962" we would conclude that the plan clearly provided that the stock be issued within 2 years after May 21, 1960, the date of its adoption, and therefore complied with that requirement of section 1244.

After complying with section 1244(c)(1)(A) and the underlying regulations with respect to the adoption of a plan for the issuance of "section 1244 stock," there is a further requirement in section 1244(c) (1)(D) that the corporation issue the stock pursuant to such plan for money or property other than stock and securities. Section 1.1244(c)-1 of the Income Tax Regulations provides, in pertinent part, as follows:

Sec. 1.1244(c)-1. Section 1244 stock defined.

* * * *

(c) Written plan. * * *

(2) To qualify, the stock must be issued during the period of the offer, which period must end not later than two years after the date 1969 U.S. Tax Ct. LEXIS 50">*78 the plan is adopted. Stock which is subscribed for during the period of the plan but not issued during such period cannot qualify as section 1244 stock. * * *

(3) Stock subscribed for prior to the adoption of the plan, including stock subscribed for prior to the date the corporation comes into existence, may be 52 T.C. 1112">*1126 considered issued pursuant to a plan adopted by the corporation if the stock is not in fact issued prior to the adoption of such plan.

(4) Stock issued for a payment which, alone or together with prior payments, exceeds the maximum amount that may be received under the plan, is not considered issued pursuant to the plan, and none of such stock can qualify as section 1244 stock. * * *

Respondent contends that none of the stock issued by Spectacular Shows, Inc., was issued pursuant to the plan adopted on May 21, 1960, while petitioners, on the other hand, contend that all of the stock was issued pursuant to such plan. We will deal initially with those shares of stock which were issued upon the preincorporation subscriptions of William, Jack, and Daniel Hayden, three of the four petitioners.

Upon review of the facts surrounding the physical issuance of the stock 1969 U.S. Tax Ct. LEXIS 50">*79 originally subscribed for by William, Jack, and Daniel Hayden prior to the incorporation of Spectacular Shows, Inc., we conclude and hold, as we did under similar facts in 46 T.C. 878">Wesley H. Morgan, supra, that the above-named petitioners each became the owners of 350 shares of the stock on May 19, 1960, the date of the issuance of the certificate of incorporation. Their subscriptions were accepted by the corporation upon the date of the issuance of its certificate of incorporation and, accordingly, they are to be treated as the owners of this stock on that date. We view as insignificant the fact that William paid the remaining balance due on his subscription agreement subsequent to the date of incorporation, having previously paid $ 100 on April 16, 1960.

The issuance of the certificates was not required to constitute the three brothers stockholders nor was the date of delivery controlling. The evidence of record here convinces us that they became the owners of the preincorporation shares prior to the adoption of the plan on May 21, 1960. We conclude that petitioners, William, Jack and Daniel Hayden, became owners of 350 shares apiece, by virtue of their 1969 U.S. Tax Ct. LEXIS 50">*80 earlier subscriptions, upon the date of the issuance of the certificate of incorporation, May 19, 1960. This stock therefore, for purposes of section 1244(c)(1)(D),is considered to have been issued on that same date. 46 T.C. 878">Wesley H. Morgan, supra.In that the section 1244 plan was adopted on May 21, 1960, 2 days after the stock was issued, we must also conclude that this stock was not issued pursuant to the plan as required by section 1244(c)(1)(D). ⁵ Petitioners, William, Jack, and 52 T.C. 1112">*1127 Daniel Hayden, are therefore not entitled to deduct the losses suffered by them on their initial subscription shares, 350 shares each, as a loss from the sale or exchange of an asset, which is not a capital asset, under section 1244(a). 46 T.C. 878">Wesley H. Morgan, supra.

1969 U.S. Tax Ct. LEXIS 50">*81 Petitioners have urged, citing a West Virginia case decided in 1895, that Spectacular Shows, Inc., did not come into existence until the organization meeting on May 21, 1960, and that the stock was not issued until that date because theretofore no officers were elected who could sign stock certificates. This case, Greenbrier Industrial Exposition v. Squires, 40 W. Va. 307">40 W. Va. 307, 21 S.E. 1015">21 S.E. 1015 (1895), deals with the not too relevant question of whether a subscriber, by virtue of his post-incorporation actions, was estopped to deny his liability as a subscriber. Neither the facts nor the legal issue of that case have any direct bearing on the case before us; we view it as clearly distinguishable and not at all in point. It will suffice to point out that section 31-1-8 of the West Virginia Code provides that a corporation shall exist from the date of the issuance of its certificate of incorporation. We have already stated our reasons for rejecting the argument that stock is not issued until certificates therefor are signed and delivered, and need not repeat them again here. See 46 T.C. 878">Wesley H. Morgan, supra at 890.1969 U.S. Tax Ct. LEXIS 50">*82

Respondent and petitioners are also in disagreement as to whether those shares of stock which were paid for between July 5, 1960, and November 29, 1961, were issued pursuant to a valid plan under section 1244(c)(1)(A) and regulations thereto. On November 30, 1961, certificates for the following numbers of shares were issued and delivered to each of the petitioners: William Hayden -- 9,537, Jack Hayden -- 7,691, Daniel Hayden -- 5,836, O. M. Hayden -- 1,300. The number of these shares corresponded to the total amounts, excluding the initial subscription payments, that were paid by each of the petitioners to or on behalf of the corporation as it needed the funds during the period. The intent of the petitioners, as we have held in our Findings of Fact, was that each of their payments made to or on behalf of the corporation was to represent an equity investment in the stock of the corporation; stock certificates, evidencing these capital investments were eventually to be issued and delivered to each of the petitioners.

Respondent contends that 46 T.C. 878">Wesley H. Morgan, supra, which also dealt with two separate issuances of stock, is controlling here with respect1969 U.S. Tax Ct. LEXIS 50">*83 to the November 30, 1961, stock delivery. In effect he contends that all stock except the initial 1,050 shares was issued on November 30, 1961, when the second group of certificates were delivered as set forth above. This position is hardly consistent with his stand as to the pre-incorporation subscription shares which he insists were issued before certificates therefor were delivered. This time we think he is wrong.

52 T.C. 1112">*1128 In Morgan, petitioners were partners in a partnership which owned the stock in two corporations. A third corporation, called Junction Drilling Co., was formally organized on March 2, 1961, in which the petitioners' partnership was the controlling stockholder. A written plan meeting the requirements of section 1244 was adopted by Junction on April 3, 1961. From its commencement of business in March 1961, to September of 1961, Junction operated at a loss. During this period, Junction became indebted to the other two corporations controlled by the partnership. On September 15, 1961, the directors of Junction adopted a resolution of dissolution of the corporation to pay off its debts. Junction needed additional funds in the approximate amount of $ 1969 U.S. Tax Ct. LEXIS 50">*84 25,726 to pay off its remaining outstanding debts, including notes payable to the other two corporations in the face amount of $ 15,000 each. At this time, on or about September 26, 1961, the partnership paid $ 21,103 to Junction, and other shareholders also made payments to the corporation. The corporation then paid its remaining debts, including the notes payable to the other two corporations. On this same date, 21,103 shares of stock were issued to the partnership.

On September 28, 1961, the secretary of state of Colorado issued a certificate of dissolution of Junction. In holding that the 21,103 shares of stock could not qualify for ordinary-loss treatment under section 1244, we made the following statement:

But the real basis for our conclusion on this issue is that we do not believe the $ 21,103 was paid for the purchase of stock of Junction. It may well have been a contribution to the capital of Junction to permit it to pay off all of its creditors, including the two corporations partially owned by Petroleum. Such altruism on the part of stockholders of a closely held corporation is not unheard of. But we will not accept the argument that it was paid for stock which was1969 U.S. Tax Ct. LEXIS 50">*85 admittedly worthless at the time of issuance and which would represent an additional interest in a corporation which was insolvent and was already in the process of dissolution. The only reason this would be done would be to create a tax deduction. We cannot agree that this payment resulted in a loss on section 1244 stock, whether or not the stock purportedly issued technically qualified as section 1244 stock; and we so hold. * * *

We think that the facts surrounding the November 30, 1961, stock in the case before us are clearly distinguishable from those in Morgan regarding a second issuance of stock on September 26, 1961. The only factual similarity between the two is that on the date of the physical delivery of the stock certificates, such stock was worthless. It was the Morgan case itself which established that the date of the physical delivery of the stock certificates is irrelevant in determining when the stock was issued for purposes of section 1244.

With respect to the question of when, in a postincorporation situation, stock is considered to be issued for purposes of section 1244, 52 T.C. 1112">*1129 this Court has looked to the dates when the stock was actually paid1969 U.S. Tax Ct. LEXIS 50">*86 for. ⁶ In Morgan, the stock was paid for on or about September 26, 1961, when the stock itself was admittedly worthless and when the corporation was in the process of dissolution. A good part of the September 26, 1961, payments in Morgan were eventually repaid by Junction to the two other corporations controlled by Petroleum, the partnership in which the petitioners therein were partners. In essence, it was nothing more than a person's taking money from one pocket and putting it into another. Such is not the situation in the case before us. The petitioners here were making stock payments from the early inception of the corporation's business, as contrasted with a lump-sum payment during dissolution. By July 28, 1960, more than 1 year and 4 months before the dissolution of the corporation, petitioners had made stock payments to the corporation of $ 5,000, the maximum amount to be issued pursuant to the adopted plan of May 21, 1960. ⁷ Although some of the payments occurring between September and November of 1961 might be subject to some doubts, and certainly the payments of November 27 and 29, 1961, were paid for worthless stock so as not to qualify as section 12441969 U.S. Tax Ct. LEXIS 50">*87 stock under the rationale of 46 T.C. 878">Wesley H. Morgan, supra, we think that the other payments were made as capital advances, investments in stock if you will, to keep the business going and not to provide funds for the purposes of dissolution. None of the payments were to eventually end up in any other corporations in which the petitioners had any ownership interests. The facts of record here are clearly distinguishable from the facts involving the second issuance of stock in 46 T.C. 878">Wesley H. Morgan, supra.

1969 U.S. Tax Ct. LEXIS 50">*88 We conclude and hold that the first 5,000 shares of stock paid for after incorporation, beginning July 5, 1960, was issued pursuant to the adopted plan of May 21, 1960, which had a maximum dollar limit of $ 5,000. Any stock issued above the $ 5,000 maximum limits of the May 21, 1960, plan, cannot, obviously, be considered as having been issued pursuant to that plan. Sec. 1.1244(c)-1(c)(4), Income Tax Regs. If such other stock is to be treated as "section 1244 stock," it must have issued pursuant to another valid plan adopted at some time subsequent to the issuance of the 5,000 shares pursuant to the plan of May 21, 1960.

52 T.C. 1112">*1130 A few months after incorporation, a special meeting of the stockholders of Spectacular Shows, Inc., was called on September 26, 1960, to consider increasing the authorized capital stock of the corporation from 5,000 to 50,000 shares of common stock, at a par value of $ 1, per share. The corporation's accountant recommended that this be done because he realized that the stockholders' advances exceeded authorized capital stock. A resolution to this effect was adopted by the board of directors. The minutes of this meeting also record discussion about1969 U.S. Tax Ct. LEXIS 50">*89 section 1244 but what exactly was discussed is not clear, this portion of the minutes being as follows:

It was brought out that at the organization meeting, May 19, 1960, that all stock issued would have to be issued in accordance with Section 1244-IRC and the amendment would be following the general plan of stock issued in accordance with the provisions of section 1244-IRC, as adopted at the organization meeting of May 19, 1960.

There was no further mention of a plan and no resolution to this effect. No time limit for the issuance of the additional shares was specified, however, nor was any accompanying document executed, as in the original plan, to specify any details of a plan under section 1244. On October 14, 1960, the secretary of state of West Virginia authorized an increase in the capital stock of the corporation to 50,000 shares, at a par value of $ 1 per share.

It should initially be pointed out that between July 28, 1960, by which time the first $ 5,000 of stock had been effectively issued pursuant to the original plan, and September 26, 1960, when the stockholders met to amend the articles of incorporation, $ 2,052.46 of payments were made; the stock purchased by1969 U.S. Tax Ct. LEXIS 50">*90 these payments cannot be considered as having been issued pursuant to any plan and, accordingly, cannot qualify for ordinary-loss treatment under section 1244.

Section 1.1244(c)-1(h)(2) of the income tax regulations provides inter alia, that a corporation may withdraw a plan and adopt a new plan to issue stock. The new plan, of course, must meet the same requirements under section 1244(c)(1)(A) and regulations thereto as would an initial plan.

If it be deemed a plan at all, we think, however, that the minutes of September 26, 1960, do not adequately comprise a qualifying written plan within the requisites set out by section 1244(c)(1)(A) and the underlying regulations. These minutes do nothing more than record a discussion of the board of directors to the effect that the future issuances of stock, under an increased authorized capital stock, would be in accordance with the provisions of section 1244 as was done under the initial plan. The minutes do not specify the maximum amount, in terms of dollars, to be received for the stock to be issued, nor is any time period, with an upper limit of 2 years, mentioned. This resolution 52 T.C. 1112">*1131 in the minutes to increase the authorized1969 U.S. Tax Ct. LEXIS 50">*91 capital of the corporation to 50,000 shares, at a par value of $ 1 per share, does not itself represent a specification of the maximum amount, in terms of dollars, to be received for the stock to be issued. These minutes together with the subsequent amendment to Spectacular's certificate of incorporation do not constitute a "plan" which meets the specifications of section 1244. 51 T.C. 937">Pierre Godart, supra;49 T.C. 527">Bernard Spiegel, supra;48 T.C. 49">James A. Warner, supra.

We must conclude that petitioners have failed to establish that a plan meeting the requirements of section 1244(c)(1)(A) and the regulations was adopted subsequent to May 21, 1960, to qualify the increased capital stock covered by the amendment voted on September 21, 1960, as section 1244 stock. Accordingly, we hold that the stock issued subsequent to the issuance of 5,000 shares paid for by the first advances totaling $ 5,000 made to operating capital after May 21, 1961, was not section 1244 stock and therefore not subject to ordinary-loss treatment under that section. There was no valid plan under section 1244(c)(1)(A) save and except the first one.

1969 U.S. Tax Ct. LEXIS 50">*92 Decisions will be entered under Rule 50.