1925 BTA LEXIS 2954 | B.T.A. | 1925
Lead Opinion
The issue presented by this appeal is whether losses sustained in gaming and betting are properly allowable as deductions from gross income under the Revenue Act of 1918.
In presenting this appeal two admissions were made by the taxpayers, viz: (1) all of the gaming operations at which the deceased won or lost money were illegal under the laws of the States wherein they happened; and (2) the deceased paid his losses with full knowledge that they could not be recovered from him in law, and did so under the conviction that they were debts of honor.
The taxpayers claim the losses herein considered are allowable as deductions under the provisions of section 214 of the Revenue Act of 1918. The essential portion of this section reads as follows:
(a) That in computing not income there shall be allowed as deductions: * * * (5) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transactions entered into for profit, though not connected with the trade or business; * * * (Italics ours.)
The claims for allowance of the deductions prevail or fail upon the application of the italicised language quoted above to the facts disclosed in the findings. That there were gambling losses can not be denied. Whether or not they were deductible as incurred in a transaction entered into for profit and whether or not Congress contemplated that such losses should be recognized for tax purposes are the questions to be determined.
The word incur is defined as: “ To have liabilities cast upon one by act or operation of law, as distinguished from contract, where the party acts affirmatively.” (Italics ours.) Bouvier’s Law Dictionary, Crandall v. Bryan, 15 How. Pr. (N. Y.) 56.
“ The word ‘ incurred ’ is defined as to become liable or subject to; to render liable or subject to. Men contract debts; they incur liabilities. In one case, they act affirmatively; in the other, the liability is incurred or cast upon them by operation of law.” (Italics ours.) Bank of Indian Territory, v. Eckles, 79 Okl. 159, 91 Pac. 695, and cases cited. See, also, United States v. Distillery, etc., 25 Fed. Cases 854, 858; 4 Words and Phrases (1st Ser.) 3257; 2 Words and Phrases (2d Ser.) 1025.
The decisions of the courts of this country have interpreted the words inewr and incurred as pertaining to a liability, i. e., something that can be enforced; that devolves upon a person by act or operation of law. In other words, they have held that a thing incurred is
Looking into the meaning of the word transaction, used in section 214(a) (5) of the Revenue Act of 1918, we are constrained to believe that Congress used that word in contemplation of something that was legal. As was said in McArthur v. Moffett, 143 Wis. 564, 128 N. W. 445, 33 L. R. A. (N. S.) 264:
The word “ transaction ” is defined in Pomeroy’s Code Remedies, 4th ed. s. 367, as follows: “ A negotiation, or a proceeding, or a conduct of business, between the parties, of such a nature that it produces as necessary results two or more different primary rights in favor of the plaintiff, and wrongs done by the defendant which ai’e violations of such rights.” In Craft Refrigerating Mach. Co. v. Qunnipiac Brewing Co., 63 Conn. 551, 25 L. R. A. 856, 29 Atl. 76, it is defined as “ something which has taken place whereby a cause of action has arisen. It must * * * consist of an act or agreement or several acts or agreements having some connection with each other in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered.” This court defines it in the Emerson Case, 124 Wis. 369, at page 389, as follows: “Any events in which two or more persons are actors, involving a right which may presently, or by what may approximately occur in respect thereto, be violated, creating a redressible wrong, is a transaction within the meaning of the statute.” This seems practically to be the same as Pomeroy’s definition. In Scarborough v. Smith, 18 Kan. 399 (a very interesting and instructive case), it is defined thus: “A transaction is whatever may be done by one person which affects another person’s rights, and out of which a cause of action may arise.”
In this appeal we are confronted with acts of the deceased which were admittedly illegal. Can it therefore be said that such acts constitute a transaction or that he incurred any liability therefrom? The fact that all his claimed losses were paid by check would indicate that he paid his bets after he had made his wagers and lost or after he had engaged in poker or roulette and was able to compute his losses. He could not have been compelled to pay any of such losses and he could have stopped payment on the checks given in payment therefor without liability to the payees. Therefore, we think that the operations presented for our consideration did not constitute losses incurred, because there was no enforceable liability to pay them; nor since they were illegal, can we consider them as transactions.
It now remains for us to consider the amount of the losses sustained by the deceased from his gaming. In his returns he asserted that he had won $900 during the year 1919 and $26,588 during 1920. As a matter of fact he won nothing and his reported winnings should be disregarded in computing the tax. The Commissioner has argued that each gaming venture is a separate item; that those in which winnings were made stand apart from those in which money was lost and, that the totals of the winnings must be returned and taxed, while the totals of the losses may not be deducted.
The deficiency determined by the Commissioner should be recomputed. The amounts of $900 and $26,588 reported as income from gambling for the years 1919 and 1920 respectively, should be stricken from the returns as improper and incorrect and the amounts of $26,-105 and $64,996 reported as losses for 1919 and 1920, respectively, should be disallowed for the reasons herein stated.
