
    Rakestraw-Pyle Co., Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 7294.
    Promulgated July 30, 1927.
    
      Harry G. Lank, Esq., for the petitioner.
    
      A. B. Marrs, Esq., for the respondent.
   Maequette:

This proceeding is for the redetermination of deficiencies in income and profits taxes for the fiscal years ended Juñe 30, 1920, June 30, 1921, and June 30, 1922, in the amounts of $111.12, $2,341.85, and $1,669.11, respectively. The only question for decision is whether the petitioner is entitled to include in invested capital for the years involved any amount on account of good will, all of the other allegations of error set forth in the petition having been abandoned at the hearing.

FINDINGS OP PACT.

The petitioner is a Pennsylvania corporation with its principal office and place of business at Kennett Square, Pa. It was organized in the year 1901 for the purpose of purchasing the business of Rake-straw and Pyle, a partnership composed of Thomas Rakestraw and J. W. Pyle, which was and had been for many years engaged in operating a nursery for growing trees and shrubbery. The capital stock of the corporation consisted of 500 shares of preferred stock and 500 shares of common stock of the par value of $100 each. The incorporators were J. W. Pyle, Thomas Rakestraw, C. J. Pennock, J. M. Worrall, F. T. McDonald, and S. Jones Philips.

Shortly after the petitioner was organized, it issued and sold its bonds in the amount of $30,000 and it purchased “ all the property, real and personal” of the partnership of Rakestraw and Pyle for $63,000, paying therefor $29,500 in cash and 344 shares of its preferred stock. One hundred shares of the preferred stock were issued for cash at par to J. M. Worrall, C. J. Pennock, F. T. McDonald, and S. Jones Philips in equal shares. The record does not disclose when or to whom the remainder of the preferred stock was issued.

At or about the time that it acquired the tangible assets of the partnership of Rakestraw and Pyle, the petitioner issued all of its common stock, 500 shares of the par value of $100 each, to J. M. Worrall, C. J. Pennock, F. T. McDonald, and S. Jones Philips, for the good will of the business of nurserymen, theretofore conducted by Thomas Rakestraw and J. W. Pyle as a copartnership, trading under the name of Rakestraw & Pyle. The record does not disclose how Worrall, Pennock, McDonald and Jones acquired said-good will, nor is there any competent evidence in the record showing that the good will so acquired had any value.

The respondent, upon audit of the petitioner’s income and profits-tax returns for the fiscal years ending June 30, 1920, June 30, 1921, and June 30, 1922, excluded from invested capital the amounts claimed by the petitioner on account of said good will and determined that there are deficiencies in tax as above set forth.

Judgment mil ~be entered for the respondent.

Considered by Phillips, MillikeN, and YáN FossaN.  