Docket No. 6302. | B.T.A. | Jul 29, 1926
Lead Opinion
The petitioner alleges that the 50 shares of stock of the Eegister and Tribune Co. were not income for the reason that, under the terms of the contract, he was restricted in the sale thereof, and it therefore had no readily realizable market value.
It was stipulated that, if the Board should hold that the petitioner was not prevented by the terms of the contract from selling the stock, the value as fixed by the Commissioner would be correct. The agreement between the petitioner and Cowles did not provide that the petitioner might not sell the stock, but merely that Cowles, the president and controlling stockholders of .the newspaper should first be given the opportunity of purchasing the stock in case the petitioner wished to dispose of it. Had the petitioner desired to sell the stock and had Cowles declined to purchase it, he would have been free to dispose of it in any manner he might have deemed proper. Under these circumstances the Commissioner properly held that the value of the stock, amounting to $7,000, was income.
The total amounts expended by the petitioner for the various purposes set forth in the findings of fact, not including amounts claimed as exhaustion, wear and tear of the automobile and studio, and the total amounts allowed by the Commissioner in each of the years, are as follows: '
1918 1920 1921 1922 1923 Total amounts claimed.-. Total amounts allowed by Commissioner.. $3,508.43 2,257.19 $7,379.68 2,313.50 58,472.00 2,407. 28' $6,500.06 4,517.77 $7,670.05 5,239.40 $5,087. C9 3, 615.88
The contract between the petitioner and the Tribune Association, dated February 2, 1917, provided that the Tribune should repay to the petitioner “his traveling expenses from Des Moines to New York and from New York to Des Moines.” The contract of January, 1921, also provided that the petitioner should be repaid his traveling expenses and also his hotel bills. '
' The Board is unable to determine from the evidence whether or not under the contract of 1917, which remained in force until 1921, the petitioner was reimbursed by the Tribune Association for his hotel expenses, or what amount, if any, the Commissioner has allowed as a deduction on account thereof. Any amounts paid by the petitioner for traveling expenses and repaid to him by the Tribune would not constitute legal deductions from gross income unless the amounts so
The evidence does not show what portion of the total amount claimed as a deduction on account of amounts expended for club dues and entertaining was allowed or disallowed as a deduction by the Commissioner. The Board can not therefore determine whether the Commissioner committed error in connection with these items, nor can the Board determine, from the evidence, whether the Commissioner has denied petitioner the right to deduct any portion of the amounts expended for supplies, periodicals, telephone, telegraph, office salaries and expenses.
After eliminating the amount claimed as hotel and traveling expenses, and the upkeep of the automobile, the total of the deductions allowed by the Commissioner for each year, in the opinion of the Board, adequately cover the amounts to which the petitioner was entitled for expenditures for club dues, supplies, periodicals, telephone, telegraph, office salaries and expenses. The operating expense and depreciation of the automobile is not, in the opinion of the Board, a proper deduction in any event under the evidence submitted. It appears that the petitioner, when not otherwise engaged, studied and practiced the art of sculpturing for the purpose of equipping himself for the day when he would be no longer able, because of his age, to carry on the business of a cartoonist. The automobile in question was used for the most part in connection with this work in going from place to place and in transporting materials. This work was purely educational and was not carried on for profit. The expenses incident thereto were not, therefore, a proper deduction from gross income derived from his business as a cartoonist. The automobile was occasionally used in connection with his regular business, but the evidence as to the extent of such use is not sufficient to enable the Board to determine what portion of the expense or depreciation should be allocated thereto. •
Upon the evidence submitted, the Board is convinced that the studio erected in 1921 had a useful life in petitioner’s business not exceeding 15 years. The annual allowance for exhaustion, wear, tear and obsolescence thereof should, therefore, be computed upon that basis. The Commissioner allowed a deduction for exhaustion at the rate of 4 per cent per annum.
The Commissioner included in his answer to the petition a motion to dismiss the appeal in so far as it related to the year 1918, on the ground that the deficiency for that year was assessed on May 15,1925, and that he had not thereafter made a final determination upon a
The evidence shows that on May 27, 1925, the taxpayer filed claim for abatement of the deficiency for 1918,- assessed without giving him the benefit of the hearing as provided by law, and that he also executed at the same time a bond with surety approved by the collector of internal revenue. .Thereafter, he was granted a hearing upon his claim for abatement of the amount assessed for 1918 in connection with his protest of the amount of the deficiencies and overassess-ments for the years 1919 to 1923, inclusive. The notice of the deficiency mailed to the taxpayer on June 17, 1925, was stated by the Commissioner to be his final determination of the deficiencies and overassessments for the years 1918 to 1923, inclusive, and it is from that notice that this appeal was filed. No notice other than the notice of June 17,T925, has ever been mailed to the taxpayer concerning any deficiency for the year 1918.
We are of the opinion that the notice from which this appeal was taken was a final determination of the taxpayer’s claim for the abatement of the deficiency for 1918, and the Commissioner’s motion to dismiss as to that year is denied.
The position of the Commissioner that the Board is without authority to make a redetermination for the years 1919 and 1921 is well taken and his motion to dismiss the appeal in so far as it relates to his determination of overassessments for the years 1919 and 1921 is sustained. Section 274(g) Revenue Act of 1926. Appeal of Cornelius Cotton Mills, 4 B. T. A. 255.
Order of redetermination will be entered on 15 days' notice, under Rule 50.