20 CFR 404.1004(b), 404.1026

SSR 66-31c

WILLIAMSON v. CELEBREZZE, U.S. D.C., N.D. Ind., So. Bend Div., Civil No. 2988 (1963) (CCH U.I.R. Fed. Par. 15,014)

The claimant inherited a life estate in a farm and she and her son became sole stockholders of a corporation which they formed ostensibly to operate the farm. She was designated president of the corporation, and her alleged duties as president, which were performed primarily by her son, consisted of negotiating leases with share-crop tenants, collecting rentals, and arranging for and supervising maintenance of the rented portions. She allegedly was paid by the corporation for such services, but there was no evidence to substantiate alleged transfers of the farm or other assets to the corporation, that the corporation entered into any business transactions, that it had funds or that its existence was known to anyone other than the claimant and her son. Held, (1) the corporation had no assets upon which a business operation could be established and accordingly the monies allegedly paid to the claimant were not "wages" within the meaning of the Social Security Act; and (2) moreover, it was proper for the Secretary to inquire into the bona fides of the corporate arrangement and the performance thereunder.

GRANT, District Judge:

This matter is before this Court as an action to review the decision rendered by the Hearing Examiner of the Office of Hearings and Appeals of the Social Security Administration, denying Minnie M. Williamson old age and survivors' insurance benefits. Plaintiff and defendant have each filed a Motion for Summary Judgment.

The essential facts from the transcript of proceedings relating to the claim of plaintiff for old-age insurance benefits are as follows:

When plaintiff's husband died in 1949 she inherited a 240 acre farm "to have and to hold during her natural life". She was to receive therefrom all the rents, profits and income. Plaintiff operated the farm with employees for about one year, and thereafter, until February, 1957, she had tenants on a "share-crop" basis.

On February 21, 1957, a corporation, Evergreen Stock Farms, Inc., was organized under the laws of Indiana "(T)o operate a general farm and to raise all farm products, including grains,livestock and other farm products, and to purchase, sell, lease, mortgage and pledge any product, equipment or storage facility necessary for the farm operation." (T.115). The corporation was formed in order to reduce or eliminate family troubles among the children and grandchildren. One hundred (100) shares of preferred stock was authorized but not issued. Plaintiff and her son were each issued ten (10) shares of common stock. The corporation did not pay dividends during the time in question.

Plaintiff was named President on January 1, 1958. She described her duties in regard to the farm as "the same, fundamentally, as before incorporation -- namely, to negotiate leases with renters, collect rentals, arrange for and supervise maintenance and see that the terms of leases are abided by." (T.53). After incorporation, plaintiff's son, Porter Williamson, an attorney and an officer of the corporation, assumed an increasing measure of this work. The farm, after incorporation, was rented to tenants who cultivated the land and at least one tenant paid rent on the straight cash basis.

As a general practice, according to the testimony of Porter Williamson, plaintiff received nothing directly from the corporation, but instead he would draw, from time to time, checks payable to himself and give plaintiff an amount to cover ordinary personal expenses. These checks were not submitted in evidence by plaintiff. The exact amount of plaintiff's wages would not be determined until the end of the year when corporate income was calculated.

Plaintiff's income tax returns for 1957 and 1958 listed no wages, but income of $1,200 in 1957 and $4,200 in 1958 was shown under the heading "Other Income" on Schedule H. The indicated source was Evergreen Stock Farms, Inc. In 1959, plaintiff's income tax return listed $1,100 in wages and $2,000 from the corporation as other income.

Again, according to Porter Williamson's testimony, the corporation had its own bank account. However, bank records, corporate journals, ledger accounts or payroll records were not submitted in evidence. There were no deeds, mortgages or any other documents indicating ownership of or interest in any land or real estate by the corporation. A Note Receivable listed among the assets was allegedly transferred to the corporation by plaintiff. The corporation filed no income tax returns, although it did file an election to be treated as a small business for income tax purposes.

The corporate balance sheet for 1957 indicates the following: Cash in Banks: $1,000.00; Notes Receivable, $12,400; Real Estate, $21,000.00; Personal Property, $1,000.00; No liabilities and Net Worth $35,400.00.

The corporate balance sheet for 1958 indicates the following: Cash in Banks: $628.05; Notes Receivable, 9,500.00; Real estate $21,000.00; Personal Property $1,000.00; No liabilities and Net Worth $32,028.85. The Profit and Loss Statement for that year indicates: Receipts from Farm Operation $6,569.85; Receipts from Notes Receivable, $3,000.00 and Total Receipts $9,569.85. Expenses are listed as follows: Labor, $6,779.07; Depreciation, $1,187.00 and Repairs, Taxes, Insurance, Filing Fees, Agricultural services Advertising, Box Rent enumerated separately but totaling $1,387.67. Total expenses were $9,353.74 with a net Profit of $216.11.

The corporate balance sheet for 1959 indicates the following: Cash in Banks, $132.32; Notes Receivable, $3,000.00; Real Estate, $21,000.00; Personal Property, $1,000.00; No liabilities and Net Worth $29,536.32. The profit and loss statement for that year indicates: Receipts from Farm $3,536.57; Receipts from Notes Receivable $6,400.00 and Total Receipts $9,936.57. Expenses are listed as follows: Labor $6,406.85; Depreciation, $1,187.00; and Repairs, taxes, insurance, farm service, box rent enumerated separately but totalling $1,616.13. Total expenses were $9,209.98 with a Net Profit of $726.59.

Plaintiff submitted minutes of seven meetings of the Board of Directors of the Corporation disclosing the following: On March 9, 1957, subscription agreements were accepted; Articles of Incorporation and the expenses of incorporation were approved and By-Laws were adopted. On March 23, 1957, a resolution was adopted designating Farmers State Bank of Mentone, Indiana, as a depository for corporate funds and authorizing the President and Secretary-Treasurer to borrow money on behalf of the corporation from said Bank. On March 26, 1957, a resolution was adopted regarding the rental of a safety deposit box at First Bank & Trust Company of South Bend, Indiana. On March 28, 1957, a resolution was adopted designating First Bank & Trust Company of South Bend, Indiana, a depository for corporate funds and authorizing the President and Secretary-Treasurer to borrow money on behalf of the corporation from said Bank. On June 21, 1957, the directors discussed the alleged improper use of plaintiff's name but decided not to bring legal action.

On December 29, 1958 it was indicated that the operation of the farm for the year 1958 was reviewed and the proposed operation for 1959 was discussed. A resolution was adopted regarding a farm management lease and the rental of a house.

On November 27, 1959, it was indicated that the operation of the farm for the year 1959 was reviewed and the proposed operation for 1960 was discussed. The lease of a house was approved and plans for 1960 were outlined.

Plaintiff filed an application for old-age insurance benefits on August 10, 1959, giving her date of birth as January 7, 1884. On February 17, 1960, the Bureau of Old-Age and Survivors Insurance determined that she was not entitled to old-age insurance benefits because she had none of the quarters of coverage necessary to attain a fully insured status. (T.113). On March 6, 1960, the Bureau affirmed its determination, holding that "the claimant has no creditable wages in 1958 and 1959, is not an employee of the corporation, and that the income received is rentals from real estate, and not creditable as self-employment income under the Social Security Act." (T.111). The Bureau, although recognizing the existence of a corporate entity under Indiana law, disregarded its existence for Social Security purposes (T.111).

On October 20, 1960, plaintiff requested a hearing before a Hearing Examiner of the Social Security Administration. Upon the testimony presented at the hearing and various documents in the record, the Hearing Examiner, on April 11, 1961, affirmed the Bureau's action. In his decision the Hearing Examiner said:

"Thus, while the facts do disclose that a corporation was formed for the purpose of operating a farm, I find no support in the record of any claim that it had any assets, including a farm. Thus the corporation, in the opinion of the Hearing Examiner, was a hollow shell, with no legal claim to any assets upon which a business operation could be established." (T.20).

After reviewing the facts as he found them to be, the Hearing Examiner concluded that:

"the corporation did not have any assets on which to operate a farm. Accordingly, alleged monies paid to the claimant by the corporation were not 'wages' within the meaning of that in the Social Security Act. It follows that the claimant had no quarters of coverage, and was not eligible for the benefits she sought. The determination of the Bureau, accordingly, is affirmed." (T. 20-21).

Plaintiff then requested a review of the Hearing Examiner's decision by the Appeals Council, which request was denied on November 16, 1961. (T. 2). Under the regulations and practices of the Social Security Administration, upon the denial by the Appeals Council, the Hearing Examiner's decision becomes a final decision for the Secretary of Health, Education and Welfare, subject to judicial review pursuant to the provisions of Section 405(g), Title 42, United States Code Annotated.

The only question before this Court on the Motions for Summary Judgment is whether the finding by the Trial Examiner is supported by substantial evidence. Section 405(g), Title 42, United States Code Annotated, under which this Court is exercising its authority to review, provides: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." The function of this Court is to review the record to determine whether it contained substantial evidence to support the administrative decision. This finality attaches not only to the findings themselves, but also to the inferences and conclusions drawn from the facts. Sherrick vs. Ribicoff 300 F.2d 494, 495 (7th Cir. 1962); Carqueville vs. Flemming 623 F.2d 875 (7th Cir. 1959); Rosewall vs. Folsom 239 F.2d 724 (7th Cir. 1957).

Even if it could be determined from the facts in this case that the corporation was organized to enable plaintiff to qualify for Social Security benefits, such purpose, if it be a fact, would not be improper. In Enke vs. Ribicoff, 197 F.Sup. 319, 324 (U.S.D.C.S.D. Florida, Tampa Div. 1961) the Court said:

It is now established law that there is nothing improper or questionable about a person entering a bona fide employment relationship for the express and even admitted purpose, which is not the case in this controversy, of acquiring a wage record which would enable him to qualify for old-age insurance benefits. Such action is clearly within the letter and spirit of the Act. See Flemming vs. Lindgren, 10 Cir. 275 F.2d 596; Stark v. Flemming, 10 Cir., 283 F.2d 410; Rhoads v. Folsom, 7 Cir. 252 F.2d 377; Rafal v. Flemming, D.C. 171 F.Supp. 490.

"Nor does such motivation in organizing a corporation defeat recovery." Brannon vs. Ribicoff, 200 F.Supp. 697, 703 (U.S.D.C. Montana, Billings Div. 1961). "Congress could have provided that the motivation to obtain social security by organizing a corporation would defeat the end. It did not." Stark vs. Flemming, 283 F.2d 410 (9th Cir. 1960).

However, the existence of a legally constituted corporation is not, in and of itself, enough to merit a finding by this Court that the Trial Examiner's decision was not based on substantial evidence. It does not preclude the Secretary from inquiring into the realities of the situation. He may take a look at the corporation in order to determine if it is a sham. If he so determines, and if the decision is supported by substantial evidence the arrangement is vitiated for Social Security purposes, and one allegedly an employee of such corporation would not qualify for benefits under the Act by reason of said "employment". Flemming vs. Lindgren, 275 F.2d 596, 597 (9th Cir. 1960); Stark vs. Flemming, supra at page 410. The District Courts on numerous occasions have reviewed this determination. Brannon vs. Ribicoff, supra; Enke vs. Ribicoff, supra; Gancher vs. hobby, 147 F.Supp. 461 (U.S.D.C.D Conn. Civil Div. 1955); Dunn vs. Ribicoff, (U.S.D.C.W.D. Mo. St. Joseph Div. NO. 1102, decided June 19, 1962); Howatt vs. Folson, 160 F.Supp. 490 (U.S.D.C.E.D. Penn. 1957) aff'd, 253 F.2d 680; Stark vs. Flemming, 181 F.Supp. 539 (U.S.D.C.N.D. Cal., S.D. 1959) rev'd 283 F.2d 410.

The decisions of the District Courts indicate that the test to be applied in determining whether the trial examiner's decisions are supported by substantial evidence is: Was there proper adherence to normal corporate routines? The answer to this question depends upon the consideration of various factors. Initially, it should be noted that the corporate entity must not be summarily disregarded. Corporate arrangements would have to be respected by others and must be respected by the Secretary as well. Brannon vs. Ribicoff, supra at page 702; Stark vs. Flemming, supra at page 410. With this in mind, it is proper to consider the following: (1) Has there been a transfer of property, (realty and personalty) to the corporation? (2) Were corporate directors and tax returns regularly filed? [sic] (4) Did the corporation maintain accounting records, books and journals? (5) Is there evidence that business was transacted with others and/or in behalf of the corporation? (6) Was business transacted in the corporate name?

In the case at bar there is no evidence indicating that plaintiff conveyed her interest in the farm to the corporation, nor is the evidence indicating that the Note Receivable was transferred to the corporation. Corporate balance sheets indicate that the farm and the Note were considered assets of the corporation by plaintiff and her son, but that evidence, standing alone, is insufficient to substantiate transfer of those assets. Without the farm and the Note Receivable, there remains as assets of the corporation, according to the balance sheets, a small amount of cash and personal property worth $1,000.00. Again, there was no evidence, except the balance sheet, to indicate that these items were actually owned by the corporation. It was the opinion of the trial examiner that the corporation was "a hollow shell, with no legal claim to any assets upon which a business operation could be established." This Court agrees with that opinion.

The notice of hearing before the trial examiner requested plaintiff to bring, inter alia, bank account books, corporate journals, ledgers, accounts and payroll records and Note Receivable owned by the corporation. However, plaintiff did not produce these items, nor did she explain why they could not be produced. The minutes of the directors' meetings indicate that the officers were authorized to establish bank accounts in two banks. Bank records should have been produced to indicate that these accounts are established in the name of the corporation and that money was deposited and withdrawn. The bank records would have tended to establish the transaction of business by the corporation.

The evidence does not establish that the corporation entered into any business transactions. There is lacking in this case, as distinguished from cases heretofore cited, evidence that the existence of the corporation was known to any one other than plaintiff and her son. It might be well to note at this point that a Complaint was filed in the state court on behalf of the corporation in November, 1960, but this was done after the Bureau's reconsideration determination of August 10, 1960. The testimony of independent witnesses, e.g. tenants, could have been submitted to establish that the corporation transacted business. Executed leases would also have indicated this fact. However, no such evidence was submitted.

It is clear to this Court that plaintiff's allegation regarding the substantiality of the corporation remain unsupported by independent evidence. Plaintiff had the burden of proof before the trial examiner to establish that the required conditions for eligibility had been met. Carqueville vs. Flemming, supra at page 877. She failed to sustain this burden.

It is the finding of this Court that the trial examiner's decision is supported by substantial evidence.

IT IS ORDERED, ADJUDGED AND DECREED that plaintiff's Motion for Summary Judgment be, and the same is, hereby, denied; and that defendant's Motion for Summary Judgment be, and the same is, hereby, granted.

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