1979 U.S. Tax Ct. LEXIS 9">*9
73 T.C. 443">*443 OPINION
Respondent determined deficiencies in 73 T.C. 443">*444 income tax against petitioners for the taxable year 1970 as follows:
Docket No. 3017-75 | $ 4,705 |
Docket No. 3023-75 | 6,094 |
The sole issue for decision is whether
All of the facts are stipulated and are found accordingly.
Petitioners Harold and Phyliss Elovich are individuals whose legal address as of the date of the filing of the petition was 18 North Clover Drive, Great Neck, N.Y. 11020. Petitioners Maurice and Margaret Cohn are individuals whose legal address as of the date of the filing of the petition was 652 Long Hill Road, West Briarcliff Manor, 1979 U.S. Tax Ct. LEXIS 9">*11 N.Y. 10510. Petitioners filed their tax returns for the taxable year 1970 with the Internal Revenue Service at Andover, Mass.
During the taxable year ending on July 31, 1970, petitioners Harold Elovich (Elovich) and Maurice Cohn (Cohn) were the only two shareholders of Mega Research Corp. (Mega), a corporation which was an electing small business corporation described in
Mega performed certain services for Integrated Resources, Inc. (Integrated), through Elovich and Cohn. Integrated transferred 1,000 shares of its stock on February 9, 1970, in payment for services such as "finders" to Elovich and Cohn as tenants in common. On that same day, Elovich and Cohn purported to assign those shares to Mega. Neither Elovich nor Cohn was an employee of Integrated.
Unrestricted Integrated stock was selling on the over-the-counter market at a price of $ 51 per share on February 9, 1970.
The shares of Integrated received by petitioner Elovich were subject to an "investment letter," 3 dated January 28, 1970, in which he represented to Integrated that the shares of stock were 73 T.C. 443">*445 being acquired for investment purposes and that he had no present intention to sell1979 U.S. Tax Ct. LEXIS 9">*12 these shares. The letter further provided that each share of stock would carry a legend to the effect that the shares involved had not been registered under the Securities Act of 1933, and that a public transfer of said shares free and clear of restrictions would not be made without a registration or opinion from counsel satisfactory to Integrated that a registration was not required. To this extent, Elovich could have transferred the shares in any manner permitted under the Securities Act of 1933.
On May 22, 1970, Mega transferred its 1,000 shares of Integrated in an arm's -length transaction for $ 25,000. The transfer was made with certain options and subject1979 U.S. Tax Ct. LEXIS 9">*13 to the "investment letter" restrictions. Elovich and Cohn reacquired the stock under the provisions of the agreement for $ 31,250 on November 16, 1972.
Subsequently, Elovich and Cohn were unsuccessful in their attempt to obtain from Integrated a rescission of the restrictions. In late 1972, they endeavored to sell their shares under rule 144 of the Securities and Exchange Commission (SEC) but were unable to make a sale because permission to sell was not granted by the SEC. The shares remained unsold as of the date of trial.
Petitioners rest their entire case on the proposition that Elovich and Cohn and/or Mega were "independent contractors" and not employees of Integrated and that, therefore,
1979 U.S. Tax Ct. LEXIS 9">*14 Petitioners rely on the legislative history surrounding the statute to support their position that
We reject petitioners' argument. While restricted stock plans involving employers and employees may have been the primary impetus behind the enactment of
The foregoing analysis readily disposes of petitioners' attempt to distinguish
1. All statutory references are to the Internal Revenue Code of 1954, as amended and in effect during the year in issue.↩
2. There is an automatic adjustment of a deduction for medical expenses which is dependent upon our decision herein.↩
3. The record does not contain any evidence of any such letter signed by Cohn, but it is a reasonable inference from the stipulated facts that he was subject to the same restrictions as those contained in the Elovich investment letter. In any event, in light of our decision herein, the presence or absence of such restrictions on Cohn's stock in immaterial.↩
4.
(a) General Rule. -- If, in connection with the performance of services, property is transferred to any person other than the person for whom such services are performed, the excess of -- (1) the fair market value of such property (determined without regard to any restriction other than a restriction which by its terms will never lapse) at the first time the rights of the person having the beneficial interest in such property are transferable or are not subject to a substantial risk of forfeiture, whichever occurs earlier, over (2) the amount (if any) paid for such property,↩
5. See also
6. No issue as to valuation has been raised by the parties herein. See