DeRoy v. Commissioner

ABE J. DEROY AND AL J. DEROY, EXECUTORS, ESTATE OF LOUIS J. DEROY, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. DeRoy v. Commissioner Docket No. 29111. United States Board of Tax Appeals 19 B.T.A. 452; 1930 BTA LEXIS 2396; March 31, 1930, Promulgated *2396 The decedent was a member of a partnership. He reported his income on the basis of a calendar year and it reported its income on the basis of a fiscal year ending January 31. He died October 7, 1924. Held that only his distributive share of its net income for its fiscal year ending January 31, 1924, should be included in his return for 1924. Louis Caplan, Esq., for the petitioners. Bruce A. Low, Esq., for the respondent. MURDOCK *452 The Commissioner determined a deficiency of $4,150.87 in income taxes of the decedent for the period January 1, 1924, to October 7, 1924. The petitioners allege that the Commissioner erred in adding *453 to the income of the decedent, for the period beginning January 1, 1924, and ending October 7, 1924, the sum of $19,006.50, representing the decedent's pro rata share in the income of the partnership of Joseph DeRoy & Sons for the period beginning February 1, 1924, and ending October 7, 1924. FINDINGS OF FACT. The petitioners, residents of Pittsburgh, Pa., are the executors of the estate of Louis J. DeRoy, who died on October 7, 1924. The decedent had been a member of the firm of Joseph DeRoy*2397 & Sons, a copartnership engaged in the retail jewelry business. In so far as material to our determination, the partnership agreement in effect at the time of the decedent's death, provided that: In the event of the death of any of the parties hereto, the interest of said decedent in this partnership * * * shall cease and determine, and the interest of said deceased partner as it existed at the time of his death shall be purchased by the surviving partners at an amount equal to the net balance shown on the books of said partnership to the credit of said deceased partner in his capital account at the first regular inventory period of said partnership next succeeding the death of said partner * * *. In arriving at said purchase price there shall be added to said net capital account as shown at the last inventory period preceding the death of said partner the decedent's proportionate share of the profits for the full partnership fiscal year in which the death of said partner occurred, or there shall be deducted therefrom his proportionate share of the losses of said partnership during said full year, said profits or losses to be as shown by the inventory and balance sheet to be made*2398 at the first usual inventory period of said partnership next succeeding the death of such partner; and there shall also be deducted from said capital account all amounts charged to the personal account of said deceased partner for expenses, withdrawals, etc., during said full fiscal year. The partnership returns were made on the basis of cash receipts and disbursements for a fiscal year beginning February 1 and ending January 31, at which time inventories were taken and profit or loss determined and entered on each partner's account. The decedent used by calendar year in reporting his income on the basis of cash receipts and disbursements. The petitioners filed an income-tax return for the decedent for the period January 1, 1924, to October 7, 1924, including therein the distributive share of the partnership income for the fiscal year ended January 31, 1924, but no other income of the partnership; the respondent added $19,006.50 to this return and determined the deficiency. This amount was added as representing the decedent's taxable share of the income of the partnership for the period beginning February 1, 1924, and ending October 7, 1924. *454 OPINION. MURDOCK: *2399 Section 218(a) of the Revenue Act of 1924 provides that: Individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year, or if his net income for such taxable year is computed upon the basis of a period different from that upon the basis of which the net income of the partnership is computed, then his distributive share of the net income of the partnership for any accounting period of the partnership ending within the taxable year upon the basis of which the partner's net income is computed. The partnership accounting period was a fiscal year beginning February 1 and ending January 31; the decedent reported his income on the basis of a calendar year. The decedent was liable for tax, for the taxable period before us, only on his distributive share of the partnership income for the fiscal year ended January 31, 1924. There is no contention that the amount returned was not the proper amount to represent the decedent's distributive share of the partnership*2400 income for the fiscal year ended January 31, 1924. The death of the partner did not terminate or shorten the accounting period of the partnership and there was only one accounting period of the partnership ending in the decedent's taxable year before us. The surviving partners continued the business until the end of the next fiscal year, or until January 31, 1925, and in accordance with the partnership agreement the decedent's estate was entitled to his proportionate share of the partnership income for the full fiscal year in which his death occurred; no part of this income was distributable to the decedent during the period before us. The respondent erred in adding to the decedent's income for the period from January 1, 1924, to October 7, 1924, $19,006.50 or any other sum, representing the decedent's share of the partnership income from February 1, 1924, to the date of his death. See , where we said: It seems clear to us that the death of a partner does not shorten the partnership's fiscal or calendar year to an accounting period terminating at the death of the partner and that only a complete liquidation*2401 during the calendar or fiscal year terminates the accounting period. This partnership has but one accounting period ending in 1920. The statutory net income of the partnership could not in this instance be computed before the close of its fiscal year. This being our view, we must hold that there should be included in the deceased's return of income for 1920 only his distributive share of the partnership net income for its fiscal year ending January 31, 1920. *455 Our conclusion does not dispose of any questions relating to the allocation and taxation of deceased partner's distributive share of the partnership income for the period beginning at February 1, 1920, and ending with the date of his death. The amount of the net income of this partnership for its year which includes that period can not be determined until January 31, 1921, and we have before us only the year 1920. ; ; ; ; *2402 . Reviewed by the Board. Judgment will be entered for the petitioner.