Freeling v. Commissioner, 1927 BTA LEXIS 2980

Freeling v. Commissioner

1927 BTA LEXIS 2980 | B.T.A. | 1927

Lead Opinion

*1239OPINION.

Phillips:

Petitioner contends that, while the fee, amounting to $15,000, which he received from the State was a lump sum, it was compensation for three years services at $5,000 a year. Whether this contention be true or not, it was in fact income in 1922, for the entire amount was received by petitioner in 1922 for personal services rendered or to be rendered. See Jackson v. Smietanka, 272 Fed. 970; 2 Am. Fed. Tax Rep. 1408, and Forbes v. Nichols (U. S. District Court, District of Massachusetts, July 27, 1927).

*1240The second contention of taxpayer is that the fee was salary of a public officer, and not taxable as such. The United States Supreme Court, in Metcalf & Eddy v. Mitchell, 269 U. S. 514, had occasion to consider the question here involved. There it was held that a consulting engineer, engaged as such by a State or. local subdivision for work not permanent or continuous in character on public water supply and sewage disposal projects, whose duties are prescribed by his contract, and who takes no oath of office and is free to accept other concurrent employment, is neither an officer nor an employee of the State so as to be exempt from taxation. Under the principles laid down in that decision we are of the opinion that petitioner was not a public officer after his resignation as Attorney General in 1922. Appeals of Robert G. Gordon, 5 B. T. A. 1047, and Emma B. Brunner, Executrix, 5 B. T. A. 1135.

Petitioner’s third contention is that his claims against the State of Oklahoma for expenses incurred in carrying on litigation under his contract with the State were uncollectible and that, therefore, he should be allowed a deduction for the amount of these expenses. We understand that petitioner was to be reimbursed for such expenses, and that such amounts constituted a claim which petitioner had against the State for reimbursement. It would, therefore, appear necessary that petitioner bring himself under section 214 (a) (7) of the Revenue Act of 1921 which provides that there shall be allowed as a deduction debts ascertained to be worthless and charged off within the taxable year.

Taxpayer testified that he expended between $6,000 and $8,000 for expenses during 1922. His claim against the State was not repudiated in 1922 but was repudiated in 1923. The legislature was not in session in 1922 and, therefore, could not have appropriated funds in that year for the payment of his claim. Although the governor of the State stated publicly that the claim would not be paid, in 1923 he directed the clerk of the Supreme Court of the United States to pay petitioner any rebate that might exist after the litigation was terminated. The petitioner could not have ascertained his claim against the State to be uncollectible in 1922 and there' is no certainty as yet that it is worthless. There is no other provision of law which has been called to our attention or of which we have knowledge, under which the amount claimed as a deduction could have been allowed in 1922.

Decision will be entered for the respondent.

Considered by Maequette, MillixceN, and Van FossaN.