Landon v. Commissioner

CHAUNCEY L. LANDON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Landon v. Commissioner Docket No. 25022. United States Board of Tax Appeals 16 B.T.A. 907; 1929 BTA LEXIS 2501; June 4, 1929, Promulgated *2501 The evidence is insufficient to establish that a sum received by petitioner upon the termination of his employment was a gift and, therefore, not taxable income. Frank J. Maguire, Esq., for the petitioner. P. A. Bayer, Esq., for the respondent. ARUNDELL *907 Proceeding for the redetermination of a deficiency of $756.03 in income tax for the year 1922. The issue is whether the sum of $7,500 received by petitioner upon the termination of his services with the Dunlop Tire & Rubber Corporation is taxable income. FINDINGS OF FACT. In May, 1920, petitioner, a resident of Bronxville, N.Y., entered the service of the Dunlop Tire & Rubber Corporation as director of sales and distribution. He was to receive from the corporation, as compensation for his services, a fixed annual salary of an undisclosed amount. No fixed term of employment was entered into by petitioner with the Dunlop Tire & Rubber Corporation and the latter was free to dispense with petitioner's services at any time. Some time during the early part of 1922 the corporation, due to financial difficulties, suspended business operations and dispensed with the services of all or*2502 most of its employees, including the petitioner. Concurrently therewith, or a short time thereafter, the corporation paid to all of its employees who held positions classified as high as department managers, sums based upon the amount of their compensation. The amount paid to the petitioner was $7,500, a sum equivalent to one-half of his salary. Petitioner had previously received all of the salary due him for services performed prior to the termination of his services with the corporation. The payment of $7,500 was not made to, or accepted by, petitioner upon the condition that he would accept employment with the corporation in case it resumed operations. At the time petitioner left the service of the corporation no arrangement of any kind was entered into concerning future employment. Petitioner, however, hoped to reenter the employ of the corporation. At the time the corporation discontinued business it was having difficulty in securing needed working capital and it was not known that the suspension of business would be temporary. After the reorganization of the corporation it resumed operations. Neither the petitioner nor any of the officers who were with the corporation*2503 *908 at the time it ceased business entered its service after the reorganization took place. OPINION. ARUNDELL: The petitioner is contending that the payment of $7,500 made to him by the Dunlop Tire & Rubber Corporation upon the termination of his employment with it was a gift, and therefore not taxable income as determined by the respondent. To constitute a gift there must not only be a transfer of possession and an acceptance by the donee of the thing given, but an intention to make a gift. The transfer must also be without consideration or compensation therefor. See , and cases cited therein. In (certiorari denied, ), the court said, inter alia, in passing upon a question similar to the one we have here: Although it is held that the motive accompanying a gift is not material, gifts usually proceed from the generosity of the giver; and, when there is any doubt as to the nature of the transaction, the absence of such motive is a pertinent circumstance for consideration. It is an essential characteristic of a gift, however, *2504 that it be a transfer without consideration. * * * It needs neither argument nor citation of authority to establish the proposition that the directors were without authority to give away the corporate assets, and that for them to make to several of their members and other persons a gift of a large sum of money from the corporate assets would be neither "wise" nor "proper," and would amount to an illegal misapplication of corporate funds. We must assume that the directors did not intend such a flagrant violation of their trust. The court held in this case that the consideration for the transfers to the employees was, among other things, their previous service to the company and the relinquishment of their positions. The only evidence of record having any relation to the intention of the corporation to make a gift of the amount in controversy here is the testimony of the petitioner himself. His testimony is to the effect that the corporation was under no liability to pay him for his services compensation other than his regular salary, which was paid in full at the time his employment terminated, and that no agreement or understanding was had at that time as to future employment. *2505 The respondent alleged in his answer to the petition that the corporation charged the payment of $7,500 to its salary account and so notified him on "Form 1099." No evidence, however, was offered by respondent in proof of his allegation. Not having been informed as to the authority for the payment, we do not know whether the expenditure was made pursuant to a resolution of the corporation's board of directors or stockholders, or an order of one or more of its executive officers. Furthermore, the *909 evidence contains nothing to show the purpose the corporation had for making the payment or what it considered its obligation toward the petitioner to be. The fact the payments to all of the employees were based upon the amount of their salaries, carries with it a strong indication that the payments were in consideration of past services or the untimely loss of their positions. The evidence fails to show that the payment was a gift and, therefore, not taxable. The respondent's action is sustained. Judgment will be entered for the respondent.