Lawson v. Commissioner

W. H. LAWSON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Lawson v. Commissioner Docket No. 4510. United States Board of Tax Appeals 12 B.T.A. 1076; 1928 BTA LEXIS 3405; July 2, 1928, Promulgated *3405 (1) Disallowance of traveling expense and selling cost approved. (2) Inventory adjustments approved. Walter Hoffman, Esq., for the petitioner. T. M. Mather, Esq., for the respondent. VAN FOSSAN *1076 This proceeding is brought to redetermine the income tax of the petitioner, W. H. Lawson, for the years 1918, 1919, 1920, and 1921. The respondent has determined deficiencies aggregating $27,651.49 for the said years. The petitioner alleges the following errors on the part of the respondent: (1) In disallowing as deductions certain business expenses incurred by him while engaged individually in the business of selling wines, from January 1 to July 31, 1918, inclusive. The amount of the deductions so claimed is $6,344. (2) In disallowing as deductions certain traveling and selling expenses incurred by petitioner on behalf of the partnership of Scatena, Lawson & Perelli. The amounts of the deductions so claimed are $8,175.90 in 1918, $35,025.42 in 1919, and $10,758.54 in 1920. The petitioner asserts that he has not been reimbursed by the partnership for such expenditures except in the sum of $6,745.56, and in the event that a repayment*3406 of the balance is made to him he should be allowed a deduction of one-third of the entire amount of his expenses. (3) In adding to the petitioner's income a profit asserted to have been earned by him on the sale of used barrels to and through the above partnership. The amounts so added to his income were $1,009.12 in 1918 and $4,778.81 in 1919. (4) In disallowing a deduction of $500 from the petitioner's gross income during the year 1918, representing contributions made by him to charitable organizations. *1077 (5) In adding to the inventory values of the said partnership certain amounts representing the excess of the cost of goods inventoried over their market value, whereas such goods should have been valued at "cost or market, whichever is lower." The amounts so added were $30,048.86 in 1919, $36,679.83 in 1920 and $356.80 in 1921. (6) In adding to the gross income of the partnership for 1920 the sum of $7,893.40 representing the value of certain grapes raised on the La Tosca Ranch, owned and operated by the partnership. The petitioner alleges that the Commissioner should have reduced the value of the partnership inventory by the said amount. (7) In adding*3407 to the gross income of the said partnership the sum of $522.70, representing the Federal tax on grape juice accrued, due and unpaid on December 31, 1921. (8) In disallowing as deductions from the petitioner's gross income for 1921 the amount of $2,000 as salary paid by him to W. R. Lawson and the amount of $1,296 as depreciation on his automobile. These items are similar to those included in the second assignment of error above under the designation "Traveling and selling expense." (9) In failing to allow as a credit against the petitioner's net income for 1921 the sum of $1,620 received by him as dividends on stock, in the computation of the normal tax. (10) In disallowing as a deduction from the petitioner's gross income for 1920 the sum of $738.28 paid by him during that year as interest on borrowed money, although no claim therefor was made in the petitioner's return. (11) In adding to the said partnership income for 1921 the sum of $10,617.55, designated "nominal accounts not closed to profit and loss," because as a result of a suit then pending such accounts might be ordered modified or canceled. (12) In disallowing as a deduction from the petitioner's gross income*3408 for 1921 losses aggregating $7,004, sustained by him on the sale of bonds and stock. FINDINGS OF FACT. The petitioner, W. H. Lawson, was engaged in the business of selling wines on his own behalf from January 1 to July 31, 1918, in San Francisco, Calif. Sometime previous thereto he had been in the cooperage business but had had considerable experience as a manufacturer and seller of wines. On or about August 1, 1918, he formed a partnership with Silvestro Scatena and Antone G. Perelli-Minetti (also known as Julius or A. J. Perelli-Minetti) under the firm name of Scatena, Lawson and Perelli, and became the salesman of the firm. The business of the partnership was the manufacturing and selling of grapes and wines at retail and wholesale and acting as *1078 a commission merchant. Its principal activities were located at Cucamonga, Calif. In his capacity as salesman and partner in the enterprise the petitioner made a number of trips to various California cities, to New York, Boston, Washington, and other eastern cities, and sold over 2,500,000 gallons of wine during the period from August 1, 1918, to December 31, 1920. The books of the partnership were kept by Charles*3409 (Carlo) Perelli, brother of one of the partners. The petitioner did not see the books until 1921. In that year he instituted an action against the partnership for an accounting and to recover certain moneys alleged to have been expended by him on behalf of the partnership. That suit was still pending on appeal at the time of the hearing in this proceeding. The petitioner expended large amounts of money asserted to have been required as traveling and selling expenses, covering the period from January 1, 1918, to December 31, 1920, inclusive. From January 1 to July 31, 1918, such expenditures were personal, while for the remainder of the period they were for the benefit of the partnership. The petitioner made memoranda of his disbursements in a notebook and retained some vouchers relating thereto, all of which he delivered to Julius Perelli-Minetti in July, 1919. These memoranda were not produced at the hearing. Instead he presented and testified from a paper purporting to be a copy of totals of his expense items during 1918, 1919, and 1920. Petitioner had little, if any, independent recollection of the amounts involved apart from the memorandum. From January 1 to July 31, 1918, 55*3410 such items, all in round numbers, aggregated $6,344; from August 1 to December 31, 1918, 29 such items, all but one in round numbers, aggregated $8,175.90; in 1919, 62 such items, all but three in round numbers, aggregated $22,634.59; and in 1920, 62 such items, all but two in round numbers, aggregated $5,671.03. A portion of the amount so expended was for the personal living expenses of the petitioner. The petitioner paid to his son, W. R. Lawson, $12,000 in 1919, $4,000 in 1920, and $2,000 in 1921, as salary for his services as the petitioner's assistant. W. R. Lawson expended out of said salary $7,000 in 1919, $2,000 in 1920, and about $1,000 in 1921, as his own business expenses. He returned as income the amounts so received from his father. The petitioner also claimed $362.50 in 1919, $1,087.50 in 1920, and $1,296 in 1921 as depreciation on his automobile, which he used in his business, and also for his own personal needs and pleasure. In 1918, while in New York City, the petitioner proposed to purchase certain second-hand barrels for the use and benefit of the partnership. His partners refused to sanction such action and consequently he advised his son, W. R. Lawson, *3411 to secure the barrels and ship them to California. Accordingly, this was done and, with *1079 subsequent purchases of barrels, constituted an independent venture of W. R. Lawson and was handled entirely in his name. In 1918 the alleged profit added to the petitioner's income through this transaction was $1,009.12 and in 1919 it was $4,778.81. In 1918 the petitioner made contributions to charitable institutions, such as the Red Cross, undetermined as to amounts, uncertain as to time and indefinite as to the recipients. He claimed to have expended $500 in this manner. On December 31, 1918, the inventory of the wine and stock owned by the partnership was based on its cost and so reported in its return. On December 31, 1919, the wine and stock likewise was entered on its books at cost and so inventoried in its return. In 1924 or 1925 an attempt was made by petitioner to change the inventory value. No permission to make such a change in the method of making its inventory was secured from the Commissioner. The enactment of the Eighteenth Amendment rendered the wine of the petitioner unsalable to the high percentage of alcohol. By a process of sulphurization an attempt*3412 was made to arrest fermentation and to bring the liquor within the alcoholic content permitted by law. The period of experimentation extended over the year 1919 and, to a less degree, throughout 1920. In 1920 some of the wine was "fortified" and made into a sweet wine. The amount so recovered is not shown. The value of the wine prior to its treatment by the various processes mentioned, was 12 cents per gallon; its value thereafter is not determined definitely. The partnership entered upon its purchase book in 1920 an item of $7,893.40, representing an alleged purchase of grapes grown on the La Tosca Ranch, a property owned and operated by the partnership. The respondent added this item to the inventory of goods on hand for 1920. In 1921 the respondent added to the gross income of the partnership the sum of $552.07 covering the Federal tax on grape juice, accrued, due and unpaid on December 31, 1921. OPINION. VAN FOSSAN: The first and second issues raised are identical in principle and vary only in that the deductions are claimed by the petitioner as an individual and as a member of the partnership, respectively. The petitioner did not segregate nor identify his alleged*3413 expenses except in totals and round numbers - at best merely estimates - and did not submit any memoranda or other evidence relating to their actual use as ordinary and necessary business expenses incurred during the taxable years 1918, 1919, and 1920 in *1080 carrying on the trade or business of the petitioner and of the partnership. The petitioner showed no positive or independent recollection of his expenditures and failed to prove them with reasonable definiteness. Therefore, the sums claimed as personal traveling and selling expenses, amounting to $6,344 from January 1 to July 31, 1918, inclusive; $8,175.90 from August 1 to December 31, 1918; $22,634.59 in the year 1919; and $5,671.04 in the year 1920, are disallowed as deductions from the gross income of the petitioner and the partnership. Under this heading there are additional items representing salary paid to W. R. Lawson, $12,028.33 in 1919, $4,000 in 1920, and $2,000 in 1921, and depreciation on the petitioner's automobile amounting to $362.50 in 1919, $1,087.50 in 1920, and $1,296 in 1921. Out of his salary W. R. Lawson was required to pay all of his own expenses and the ordinary and necessary business expenses*3414 incident to the sale of wine and to his duties as his father's assistant. His salary was reasonable in view of the large volume of sales, the ample profit thereon and the necessity for the prompt disposal of the wine. The evidence showed that the petitioner paid to W. R. Lawson the sums of $12,000, $4,000, and $2,000 as salary for the years 1919, 1920, and 1921, respectively, and these amounts will be allowed as deductions from petitioner's gross income for those years. The petitioner's claim for depreciation on his automobile is disallowed because it was utilized for his personal needs and pleasures as well as for his business. No attempt was made to segregate the proper amounts allocable and chargeable to such uses. Chase. H. Sachs,6 B.T.A. 68; Maurice H. Winger,6 B.T.A. 945; George B. Friend,8 B.T.A. 712; and Abraham W. Ast,9 B.T.A. 694. The purchase of secondhand barrels by W. R. Lawson and their subsequent sale to and through the partnership was a transaction wholly independent of the activities of both the petitioner and the partnership. The evidence discloses that the petitioner had no interest in*3415 this venture and derived no profit from it. Therefore, the income of the petitioner should be decreased by $1,009.12 in 1918 and $4,778.81 in 1919, representing his alleged profit from dealing in secondhand barrels. The petitioner claims to have made contributions amounting to at least $500 in 1919 to various charitable institutions, but he has failed wholly to prove either the amounts paid or the names of such institutions. Therefore, we approve the action of the respondent in disallowing this deduction. Section 203 of the Revenue Acts of 1918 and 1921 provides: That whenever in the opinion of the Commissioner the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer upon such bases as the Commissioner with the *1081 approval of the Secretary, may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income. Article 1582, Regulations 45, provides: Inventories should be valued at (a) cost or (b) cost or market, whichever is lower. Whichever basis is adopted must be applied to each item and not*3416 merely to the total of the inventory. * * * A taxpayer may, regardless of his past practice, adopt the basis of cost or market, whichever is lower, for his 1918 inventory, provided a disclosure of the fact and that it represents a change is made in the return. Thereafter changes can be made only if permission is secured from the Commissioner. * * * Article 1582, Regulations 62, provides: The Act provides two tests to which each inventory must conform: (1) It must conform as nearly as may be to the best accounting practice in the trade or business, and (2) it must clearly reflect the income. It follows, therefore, that inventory rules can not be uniform but must give effect to trade customs which come within the scope of the best accounting practice in the particular trade or business. In order to clearly reflect income, the inventory practice of a taxpayer should be consistent from year to year and greater weight is to be given to consistency than to any particular method of inventorying or basis of valuation so long as the method or basis used is substantially in accord with these regulations. * * * The record relating to the inventory basis used by the partnership in*3417 making its returns is uncertain and confusing. Though it was apparently assumed at the hearing that the partnership inventories for 1918 and 1919 were taken at cost, there is no evidence establishing this fact. There is no proof of the cost of the wine and the evidence of value is conflicting. The regulations require permission of the Commissioner before changing the basis of taking inventory, but no permission was requested until 1923 or 1924 and none was ever given to change the method for the years 1919, 1920, or 1921. It is a well established rule that inventories should be taken on a consistent basis from year to year so long as the method used substantially reflects income. Thomas Shoe Co.,1 B.T.A. 124; George C. Peterson Co.,1 B.T.A. 690; The Buss Co.,2 B.T.A. 266. From the meager record before us we are unable to determine whether or not the inventory method employed distorted the partnership income for 1919, 1920, and 1921. We sustain the determination of the respondent with respect to the partnership inventories during those years. The evidence as to the grapes grown on the La Tosca Ranch is likewise insufficient*3418 to prove error. Though there is some testimony from which an inference might be drawn that the respondent's adjustment was not justified, this evidence is not sufficiently definite to establish that the cost of production appeared on the books of the partnership. *1082 There was accrued on the partnership books the sum of $522.07 as a Federal tax on grape juice assessed under the provisions of Title VI of the Revenue Act of 1921. The respondent added this amount to the gross income of the partnership. The record shows that this item was accrued and unpaid in 1921 but there is no evidence that the partnership returns were made on an accrual basis. Under these facts we are unable to say that respondent was in error. The petitioner has submitted no evidence to support his allegations of error numbers 9, 10, 11, and 12. These contentions are disallowed for lack of proof. Judgment will be entered under Rule 50.