Chipley v. Commissioner

JOHN I. CHIPLEY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Chipley v. Commissioner Docket No. 39528. United States Board of Tax Appeals 25 B.T.A. 1103; 1932 BTA LEXIS 1425; April 12, 1932, Promulgated *1425 1. Where the Commissioner gave an unsound reason for including an item in a petitioner's income and the pleadings were framed to test the reason only, the Board will nevertheless sustain the Commissioner if upon a full disclosure of the facts it is convinced that there was a good reason for including the item in income. 2. One who is president and the owner of all of the stock of a solvent corporation doing a profitable business must include in his income all of the salary regularly credited to him on the books of the corporation during his taxable year, a part of which salary he withdrew and the balance of which he chose to leave in his account with the corporation. This is true whether the taxpayer kept his books and made his returns on an accrual or a receipts and disbursements basis. 3. The Commissioner's disallowance of part of a bad debt deduction approved where the evidence does not show that the amount was deductible as an addition to a reserve or as actual debts ascertained to be worthless and charged off. Wilton H. Wallace, Esq., B. B. Pettus, Esq. and B. C. Wallace, C.P.A., for the petitioner. Lloyd W. Creason, Esq., for the respondent. *1426 MURDOCK *1103 The Commissioner determined a deficiency of $5,222.09 in the petitioner's tax liability for the year 1923. The errors assigned relate to the action of the Commissioner in including in the petitioner's income a salary item of $12,000, interest in the amount of $7,833.80, and the amount disallowed as a deduction for bad debts. FINDINGS OF FACT. The petitioner is an individual who resides in Greenwood, South Carolina. During all of the year 1923 he owned all of the stock of Chipley's Universal Motor Company, Inc., a corporation engaged in business as a Ford dealer at Wilmington, North Carolina. The petitioner owned this stock in years prior and subsequent to the year 1923. He was president of this company. On its books he was credited during each month of the year 1923 with a salary of $1,000 as president. During the calendar year 1923 the petitioner made withdrawals from his salary account in the amount of $1,819.92. This corporation was solvent at all times during the year 1923 and had surplus and undivided profits at December 31, 1923, after taking into account all amounts owed the petitioner, including a salary of $12,000 for the year*1427 1923. The salaries and wages of the general manager and fifty or more employees were regularly paid. The *1104 corporation filea a corporation income-tax return for a fiscal year of twelve months ending July 31, 1923, showing net income of $31,305.28. This return was sworn to by the petitioner as president. It filed a similar return for the five-month period ending December 31, 1923, showing net income of $17,130.83. The net income shown on these returns was after the deduction of salary to the petitioner as president at the rate of $1,000 a month. The salary deductions for each year were allowed by the Commissioner. At December 31, 1923, the books of this corporation showed that it owed the petitioner salary in the amount of $19,928.08 and interest in the amount of $7,833.80. The liability for the interest was incurred prior to January 1, 1923. Under date of December 31, 1923, there is a credit on the books to surplus of $76,761.88, offset by a debit to salary and interest in the amounts just mentioned, and a debit to real estate of $49,000. With these entries there is an explanation that they are to restore the cost of building previously charged off and to close*1428 salary and interest account to surplus preparatory to issuing stock to Chipley. After making this entry the books showed surplus in the amount of $156,974.92. Under the same date there is an entry debiting surplus $155,000 and crediting capital stock $155,000, with the explanation that it was to record capital stock issued to Chipley. A certificate for 1,550 shares of stock, dated January 1, 1924, was issued to Chipley. The corporation did not issue any capital stock to the petitioner during the calendar year 1923. After several attempts to sell his stock in the corporation the petitioner finally sold all of his stock in 1926. The business of the corporation at Wilmington, North Carolina, was managed by a resident manager. The petitioner visited the place of business of the corporation regularly during the year 1923 and kept in touch with the affairs of the business. He received monthly statements from the corporation. The petitioner, in his individual capacity, was engaged in business at Greenwood, South Carolina, as a Ford dealer. He maintained a set of books in which account was kept of his transactions as an individual. The method of accounting regularly employed*1429 in keeping these books was an accrual method. Some income not connected with his business and negligible in amount was not accrued on these books but was recorded thereon as received. There was an account in these books for chipley's Universal Motor Company, Inc., stock. The books also contained accounts for accounts receivable and notes receivable. The ledger contained a reserve for bad debts account. This account was credited in 1923 with an amount not accurately shown by the record, but amounting to a little more than $7,000. *1105 On the petitioner's individual income-tax return for the calendar year 1923 no salary from Chipley's Universal Motor Company, Inc., was reported. In computing the income from business in Schedule A, a deduction in the amount of $7,636.66 was claimed for bad debts arising from sales. In his individual income-tax return for the calendar year 1922 the petitioner claimed a deduction of $7,172.09 as bad debts arising from sales. The Commissioner requested additional information in respect to this deduction. This information indicated that the amount was intended to represent actual debts ascertained to be worthless and charged off. In*1430 determining the deficiency for the year 1923 the Commissioner allowed a part of the deduction claimed for bad debts, but disallowed $7,147.57 of the amount claimed. He also included in the petitioner's income $12,000 representing salary from Chipley's Universal Motor Company, Inc., and $7,833.80 as interest from that company. In the statement attached to the deficiency notice the Commissioner explained that the $12,000 "represents salary received from Chipley's Universal Motor Company in the form of capital stock" and the interest "represents interest received by you from Chipley's Universal Motor Company in the form of capital stock." He further advised the petitioner that the petitioner's objection to the inclusion of salary and interest on the ground that the capital stock received in consideration therefor had no readily realizable market value was rejected. He further stated that the petitioner "objected to the disallowance of a bad debt reserve amounting to $7,147.57 * * *," and advised the petitioner that "inasmuch as you elected in 1921 to charge off only those bad debts ascertained to be worthless and charged off, you may not change that method unless granted permission*1431 by the Commissioner. Increases made for reserve for bad debts shown above will be disallowed." OPINION. MURDOCK: The petitioner's counsel contend that a very narrow issue has been drawn in connection with the $12,000 item representing salary from Chipley's Universal Motor Company, Inc. They argue that the issue is as to whether or not the petitioner received this amount of salary in the form of capital stock; the proof shows that he received no capital stock during the year; and, therefore, he should have judgment, for the Board, under such circumstances, may not decide nor even consider whether or not the $12,000 representing salary might have been properly included in the petitioner's income for any other reason than the one given by the Commissioner. At the beginning of the hearing in this case we thought that the *1106 issue was narrowed as the petitioner now contends. The deficiency notice, the pleadings, and the statements of counsel for both sides so indicated. But as the hearing progressed, it became apparent, cheifly from evidence offered on behalf of the petitioner, that, for other reasons than those assigned by the Commissioner, his action in adding $12,000*1432 to the petitioner's income on account of salary from Chipley's Universal Motor Company, Inc., was proper. The attention of counsel for the petitioner was called to the fact that the issue, in the light of the testimony, could no longer be considered so narrow as originally suggested, and that his contention could not be sustained on this point if on a consideration of all the evidence it appeared that the Commissioner's action was proper. The petitioner, his witnesses, and his books were still present. An adjournment was taken until the following day to give counsel additional time to think over the situation and decide upon their course of action. On the following day they stated that the petitioner did not desire to introduce any further evidence. If we were required to close our eyes to the rest of the evidence in the case and decide only the question of whether or not $12,000 should be included in the petitioner's income for the year 1923 because of the receipt of salary from this corporation in the form of its capital stock, our judgment on this point would be for the petitioner. But our duty, under the circumstances, is to consider all of the evidence and in the light*1433 thereof to decide whether or not the Commissioner erred in including $12,000 in the petitioner's income representing salary from this corporation. Cf. ; ; ; ; certiorari denied, Feb. 15, 1932. Thus we see that the date of the receipt of the stock is not a determining factor. Usually the parties may narrow the issues as much as they care to and the Board will confine itself to a decision of the issues as so narrowed, but, unless restricted by statute, we will not knowingly decide a case incorrectly upon a full disclosure of the facts. If the proof showed that a petitioner had received no stock but had received payment of his salary during the year in cash, should the Board reverse the Commissioner and exclude the salary from income merely because the salary had not been paid in stock as the Commissioner had thought? This petitioner owned all of the stock of Chipley's Universal Motor Company, Inc., during all of the year 1923. His control*1434 of the actions of that corporation during the year could not have been challenged. The corporation each month accrued on its books a *1107 liability of $1,000 representing one-twelfth of the yearly salary due its president, the petitioner. The latter knew and must have approved of this. On the income-tax returns of the corporation deductions were claimed for the full amount of this salary. The petitioner signed and swore to these returns. The corporation was allowed the benefit of these deductions by the Commissioner. The corporation credited the salary to the account of the petitioner on its books. During the year the petitioner withdrew a small part of his salary. He could have withdrawn it all if he had so desired. For his own purposes he chose not to withdraw all of it. Under such circumstances it is obvious that he had received the salary of $12,000, constructively or otherwise, for income-tax purposes. ; . If the proper method of reporting his income is the cash receipts and disbursements method, this amount should be included in his income for 1923. The Commissioner*1435 would argue further that the petitioner is estopped to deny his liability for tax on this item of income. Cf. . We do not know why the Commissioner was so long misled as to the true considerations upon which his action should have been based. Perhaps it was because of certain misleading entries on the books of the corporation dated December 31, 1923, and described in our findings of fact. The petitioner regularly kept books of account in 1923. We have found as a fact that these books were kept on an accrual basis rather than on the basis of cash received and disbursed. A few insignificant items may have been recorded in the books on the latter basis, but the accrual method overwhelmingly predominated. Cf. . Therefore, the books should have been consistently kept on the accrual basis, i.e., all items of accrued income, including the salary in question, should have been accrued on the books and the return of income should have been made in accordance with his chosen method of bookkeeping thus properly conformed. Cf. *1436 ; . Unless conformed to one method, the books do not clearly reflect income in accordance with the statute. Cf. . Counsel for the petitioner contend that the accrual method of keeping the petitioner's books applied only to his individual business as a Ford dealer, and it was permissible for him to enter on the same set of books, on the basis of actual receipts, items of income which he received separate and apart from his Ford business. He cites three decisions of the Board in this connection: ; ; and . In none of those cases was there any inconsistency in the taxpayer's method of accounting other than that *1108 he kept his individual books on one basis and was a member of a partnership which kept books upon another. Partnership income is computed on the basis of the partnership books. A partner's distributive share is determined*1437 on the basis of this computation, and there is no difficulty whatever about including it with his other income computed in accordance with any different method upon which his personal books may be kept. The important thing is that each method be consistent within its own sphere. A better case for the petitioner is , but in the present case it does not even appear that the petitioner's salary from Chipley's Universal Motor Company, Inc., was the kind of income that he was accustomed to record in his books on the cash basis. The books were not offered in evidence, and we do not know how this salary was entered on his books. We do not even know that it was entered on his books. Our judgment on this point is for the respondent no matter what method of accounting for this item was proper. Our judgment on the next issue, which relates to the action of the Commissioner in including interest in the amount of $7,838.80 in the petitioner's income for 1923, is for the petitioner. This item was not a proper accrual for 1923 and it was not paid in any way during 1923. Therefore, on neither theory could it properly be included in income*1438 for that year. The record on the issue relating to a deduction for bad debts is very confusing. This much is clear - the petitioner claimed a deduction of $7,636.66 on his return; the Commissioner disallowed the deduction to the extent of $7,147.57; and the petitioner now concedes that this latter amount is the amount in controversy. The Commissioner, therefore, must have allowed a deduction of $489.09. The Commissioner, in his explanation accompanying the deficiency notice, treats the amount in controversy as if it had been claimed as an addition to a reserve for bad debts. The petitioner has failed to show what it was. We could not allow the amount as an addition to a reserve for bad debts, for the petitioner has not shown that it was a reasonable addition to such reserve, and, furthermore, he has not shown that he is entitled to use the reserve method. Cf. ; affd., ; . One of the witnesses for the petitioner testified that for the year 1923 there was an addition of something over $7,000 to a reserve for bad debts on the petitioner's ledger, *1439 thus giving some support to the Commissioner's treatment of the item in controversy as an addition to a reserve. This same witness, a certified public accountant, who prepared the petitioner's income-tax return for the year in question, testified that in going over the petitioner's books he picked out anywhere from 70 to 200 accounts due the petitioner which he thought were of sufficient age *1109 to have their collectability questioned; he knew a number of the debtors; be consulted the petitioner and his bookkeeper in regard to these accounts; and, together, they decided which of these accounts they would consider worthless. He said that this list has now been lost. He gave no amount and no details as to any particular account. These accounts may be the ones which the Commissioner has allowed to be deducted as bad debts. Counsel for the petitioner stated that they had the petitioner's books covering the year 1922 in the room at the time of the hearing, but they made no effort to show what accounts were on the books at the end of the year 1923 or to prove facts which would tend to show that there were worthless accounts on the petitioner's books at the end of 1923 in excess*1440 of the amount allowed by the Commissioner, which accounts had been ascertained to be worthless at that time and charged off. The petitioner has not proven that any greater amount should be allowed as a deduction for bad debts than the Commissioner has already allowed. Judgment will be entered under Rule 50.