1925 BTA LEXIS 2798 | B.T.A. | 1925
Lead Opinion
The questions involved in this appeal are: (1) Whether the taxpayer is entitled to include in its invested capital for the tax years 1917 to 1920, inclusive, a claimed paid-in surplus of $16,536.12, and (2) whether the taxpayer is entitled to deduct from the gross income shown upon its tax return for 1918, $7,536.96 paid for legal services rendered to the predecessor partnership and to the taxpayer from the date of organization to December 31, 1917.
• The pertinent facts with respect to the claim of the taxpayer for a paid-in surplus of $16,536.12 are set forth in the findings of fact. The taxpayer was organized to succeed to the business of the partnership known as Samuel Trethewey & Co., Ltd. The net worth of the partnership as of September 30, 1916, as shown by its books of account, was $46,688.59. The books of account did not, however, show a liability to H. G. Tinker, who had served as counsel for the partnership from 1906 to the date of its dissolution in 1916, with an understanding that he should receive compensation for his services. As subsequent facts showed, this liability was approximately $6,2,50. Accordingly, if the books of account had correctly reflected the liabilities, the net worth of the partnership would have been only $40,438.59. The assets of the partnership were paid in to the corporation for $55,000 par value of capital stock. The Commissioner has allowed this value for the assets in the determination of invested capital. The taxpayer contends, however, that he should
In the taking of his inventory in 1916, W. R. Tinker went through the plant and figured what each machine was worth as an operating unit to the business. He testified that many of the machines which the partnership owned had increased greatly in value and that they were hard to secure on the market. This was especially true of lathes and metal-turning machines. He also testified that in some cases second-hand machines of this description were selling for more than they originally cost new. He found that the partnership had on hand some equipment which was not reflected in its asset accounts. This was owing to the fact that in past years certain equipment, including a grinding machine, had been built in the plant and the cost of the building of it' had been charged to expense; also numerous jigs of an estimated value of $10,000, which had been made in connection with particular orders, had been charged to expense at the time they were made.
The appraisal made in 1923 was made by an appraisal engineer after a study of the books and records and an examination of the plant and equipment. He determined that the sound value of the plant and equipment at October 1, 1916? was $47,678.36.
Although the assets of the partnership paid in to the corporation in 1916 for $55,000 of its capital stock appear to have had a cash value somewhat in excess of their book value of $46,688.59 (even though in reaching that book value an unrecorded liability to H. G. Tinker ivas not taken into account), in the opinion of the Board the evidence does not warrant a conclusion that the actual cash value was in excess of $55,000. The evidence shows that it had been the practice of the taxpayer generally to charge the cost of machines purchased and of buildings erected to capital account. Some depreciation had been charged off, but the Board is not in possession of evidence which enables it to determine whether the amount charged off was sufficient. Some of the machines which were in use in 1916 had been in use for 20 years. On October 1, 1916, the same day upon which the $55,000 capital stock was issued to the partners for the assets of the partnership, $5,000 cajfftal stock was sold for cash at par and $15,000 was issued for land of a claimed value of only $15,000. The fact that $20,000 of the capital stock of $75,000 was issued for assefts which had a known cash value of only $20,000 furnishes some indication of the cash value of each share of capital stock which was issued for assets, for it must be assumed that all stockholders came into the corporation on the same level. We therefore are of the opinion that the evidence does not warrant a finding that the assets of the partnership paid in to the corporation for $55,000 capital stock had an actual cash value in excess of $55,000.
The taxpayer’s books of account were kept upon an accrual basis. In 1918 it paid a bill of $7,536.96 (including small expenditures paid
It is not clear from the evidence how much of this amount was for services rendered to the taxpayer. Tinker first testified that upon organization the taxpayer fixed his salary at $720 per year and that the bill was for services rendered to the partnership. It was then testified that the bill was for services to December 31, 1917, and that the billing at the rate of $600 per year was only a rough way of charging for the sex-vices rendered. Whether the bill contained a charge for any services rendered to the corporation is not certain.
The liquidation of a liability of known or unknown amount assumed by a corporation as a part consideration for the purchase of assets is not an ordinary and necessary expense of doing business. It is a capital transaction. It is not a legal deduction from gross income. The same is true of legal expenses paid in connection with the organization of a corporation. They are capital items.
In the absence of evidence proving that some part of the bill was for services rendered to the taxpayer corporation, it must be held that no part of the $7,536.96 is a legal deduction from the gross income of the taxpayer for either 1917 or 1918 as an ordinary and necessary expense.
