1926 BTA LEXIS 2146 | B.T.A. | 1926
Lead Opinion
In asserting the deficiencies here involved the Commissioner tabes the position that the books of the partnership were kept on an accrual basis and that commissions on orders shipped by the corporations in 1919 and 1920 were accruable items of income for those years. If the Commissioner’s contention is correct the distributive share of each of the petitioners should be increased to reflect this income of the partnership. The petitioners say that the partnership books were not kept on a strictly accrual basis; that under the agreement with the corporations commissions on orders did not become income to the partnership until actually received.
There is some doubt as to whether the agreement between the corporation and the partnership was reduced to writing. From the testimony and the bookkeeping entries made by the parties to the agreement it appears that the substance of it was that the partnership was to receive a 10 per cent commission on all orders secured for the corporation, provided the profits on these orders were in excess of 10 per cent, the commissions to be computed at the end of each calendar year on the orders shipped during the year. During the years here involved the profits to the corporations were sufficient to entitle the partnership to the commissions agreed upon and at the close of each year the corporations on their books credited the partnership with an amount representing 10 per cent of the selling price of shipments made during the year. The corporations at the close of 1919 were in a position, financially, to pay the partnership the commissions on shipments during that year, though payment was not actually made until sometime later. At the close of 1920 they did not have sufficient cash to pay the commissions due to the partnership for the year’s shipments. At the close of 1919 the partnership entered on its books the commissions on shipments for that year. For the year 1920 the partnership did not record the commissions as due until in January of the following year.
Having found, as we have above, that the partnership books were kept on the accrual basis, it seems of little importance whether or not the commissions were entered in the partnership accounts at the close of each year. The principal question is whether the commissions were accruable items at the end of each of the years. The partnership was entitled, to commissions on orders shipped during each year. When at the end of each year the amount of the orders shipped was determined, the commissions due on the shipments became liabilities of the corporations and accruable assets of the partnership regardless of the time of payment.
The situation in this case in all material respects is similar to that in the Appeal of Clarence Schock, 1 B. T. A. 528. In that case we said:
* * * Under such [the accrual] system of accounting receipt of income— actual or constructive — is not essential to constitute it income within the*922 statutory definition of income. Under an accrual system of accounting one accrues income, if lie does not reeewe it. * * * Having adopted a method of accounting and having regularly employed that method in keeping his books, a taxpayer is compelled by law to report income in accordance therewith. * * * The amount of these items is definite and liquidated. The liability of the obligor is fixed and determined and is in nowise in dispute. The only element left to contingencies is the date when payment may be made. That element exists in a major portion of properly accruable items of income — open accounts, demand notes, and a number of similar accruable items occurring in everyday business.
The salaries of the petitioners as officers of the corporations were carried in the personal accounts of the petitioners in the partnership books. The Commissioner contends that these salaries were items of partnership income rather than income to the individual members and that salaries should be accrued as of the years in which they were earned.
The only thing in the record which might tend to support the position of the Commissioner is that the salaries of the individuals were entered in the partnership books. On the other . hand, we find that the salary accounts were carried on the books of the corporations in the names of the individuals and were paid by check directly to the petitioners, who, after indorsing the checks loaned their salaries to the partnership, and had the amounts thereof placed on the partnership books, not as partnership income, but in their personal accounts. The petitioners kept no individual books and we do not believe it can be said that they operated on an accrual basis merely because they had personal accounts on the books of the partnership which were kept on that basis. We are accordingly of the opinion that the petitioners were correct in reporting salaries from the corporations as income in the years in which such salaries were actually received and that the Commissioner erred in including the salaries in income before the dates of actual receipt.
It is apparent that the item of $5,440.11, representing salesmen’s commissions, and carried in the partnership merchandise inventory at the beginning of 1919, is not a proper item to be included in an inventory of merchandise. The action of the Commissioner in reducing the opening inventory by this amount must accordingly be approved. The evidence does not show when liability for payment of these commissions accrued, nor does it show when they were paid. Consequently, we are unable to find that the partnership is entitled to a deduction on account of this item in any of the years involved.
A considerable amount of evidence was offered with respect to the year 1921. It appears that no deficiency has been found in these cases for the year 1921, but on the contrary the Commissioner has found an overassessment. While no question was raised by the
Order of redeterrrdnation will he entered on 15 days’ notice, under Rule 50.
