Knoch, Senior Circuit Judge, Sprecher, Circuit Judge, and Grant, District Judge.*fn*
KNOCH, Senior Circuit Judge.
The petitioners-appellants, Andrew M. Spheeris and Ismene A. Spheeris, his wife, who is a party only because she and her husband filed joint federal income tax returns for the years here involved, appeal from a decision of the Tax Court, 54 T.C. 1353, adverse to the petitioners-appellants. As used below "petitioner" refers to Andrew M. Spheeris.
This cause arose out of the following described situation. In 1945 the Spheeris Realty Company was formed to own and manage rental property including a parcel, called the Wells Street property in downtown Milwaukee, Wisconsin. The father of petitioner owned 50% of the stock of the Realty Company. The rest of the stock was owned by the family of petitioner's uncle.
By 1960, petitioner owned 45% of the stock. Peter Samster had acquired 5% from petitioner. The rest was still owned by the family of petitioner's uncle.
The Wells Street property was improved by a 2-story commercial building which was leased to small businesses, principally to a wholesale tobacco business: Spheeris Brothers Merchandising, owned by the uncle's family, which used a large part of the building as a warehouse.
On February 14, 1960, the building was substantially damaged by fire and the tenants forced to vacate. The Realty Company continued to receive rent from its two other properties but the Wells Street property stood idle.
There was a sharp division of opinion among the shareholders concerning future use of the building. The uncle's family wished to restore the building for continued use as warehousing for the wholesale tobacco business. Petitioner firmly opposed that as contrary to the best economic use of the site. He favored acquisition of adjacent property or joint venture to construct an office building or motor hotel on combined properties. He had heard that an urban renewal project was under consideration for this area and that, while former owners would be given favorable consideration under a plan for acquisition by the City and resale for the most advantageous use to the City's renewal aims, there was no assurance that former owners would be the successful bidders. In October 1961, petitioner was told new construction pending completion of these renewal plans would be inadvisable. He also knew he would have to acquire additional adjacent property or combine with other owners to maintain a successful bid. There were also problems with respect to financing.
On August 15, 1962, petitioner and Peter Samster exchanged their 50% of the stock in the Realty Company for 100% of the stock in a newly formed corporation Anmarcon, Inc., to which the Realty Company transferred the Wells Street property and a receivable due from petitioner. The Wells Street property continued to stand idle. No bookkeeping records were kept. No lease or construction agreement was made.
In September, 1963, the redevelopment plan having been abandoned, the City officially notified petitioner to raze or rebuild the damaged structure. No permit for either operation was sought.
Petitioner regarded the exchange of stock as non-taxable under § 355 of the Internal Revenue Code of 1954 and accordingly reported no gain in his 1962 federal joint income tax return.*fn1
The Commissioner contended that the strict requirements of § 355(b) had not been met in that the business, the stock of which had been distributed, was not engaged in the active conduct of a trade or business, both immediately after distribution and for the 5-year period immediately preceding distribution. Even assuming that there had been activity for the 5-year preceeding period, the Tax Court concluded, and we agree, that holding a fire-damaged, non-income-producing property did not constitute the active conduct of a trade or business within the scope of § 355(b).
Petitioner argues that he was far from idle but his activities appear to be investigative and promotional in nature, consisting in the main of exploring new business opportunities. He did not cooperate with the other Realty Company stockholders in restoring the property to its former activity and even tried to enjoin the City's efforts to have the property reactivated. There was never an actual plan to reactivate the property during the four years after the fire by either the Realty Company or Anmarcon.
The Commissioner asserted that a gain was realized in the 1962 exchange of Realty Company stock for Anmarcon stock, no part of which qualified for nonrecognition as petitioner contends.*fn2 To meet the specific provisions of § 355; a qualifying corporate division must result in two or more ...