Vogue Silk Hosiery Co. v. Commissioner

THE VOGUE SILK HOSIERY COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Vogue Silk Hosiery Co. v. Commissioner Docket Nos. 51107, 64632. United States Board of Tax Appeals 27 B.T.A. 131; 1932 BTA LEXIS 1124; November 23, 1932, Promulgated *1124 1. Held, that in the circumstances herein the par value of stock issued as a bonus to officers as additional salary for services rendered is not deductible from petitioner's income as ordinary and necessary expenses. 2. Petitioner's claim for additional depreciation denied. George J. Edwards, Jr., Esq., and Hiram B. Calkins, Esq., for the petitioner. Arthur Carnduff, Esq., for the respondent. LANSDON *132 The respondent has asserted deficiencies in income for the years 1928 and 1929 in the respective amounts of $3,477.75 and $1,641.65. The petitioner alleges (1) that the respondent erroneously determined that salaries paid its officers in the year 1928 were unreasonable and in part, at least, constituted a distribution to stockholders and (2) that in each of the taxable years he disallowed amounts deducted from corporate income as depreciation that represented actual wear and tear on machines owned and operated by it in such years. The two proceedings were consolidated for hearing. FINDINGS OF FACT. Petitioner is a Pennsylvania corporation which was organized November 21, 1927. Its principal office is in Philadelphia, *1125 where it is engaged in the manufacture and sale of women's full-fashioned hosiery. On January 1, 1928, the issued capital stock of the petitioner was owned by Samuel Tait, president, John Tait, vice president, and Ernest Tither, secretary, in the respective amounts of 319, 200 and 108 shares. During such year it issued additional shares as a bonus or addition to salary to the same persons in the respective amounts of 100, 64 and 36 shares. In the same year it declared and paid a stock dividend to such stockholders in the respective amounts of 37, 23 and 12 shares. The stock issued to the officers as additional pay for services rendered in the taxable year was in exact proportion to the stockholdings of such officers. In the year 1928 the gross income of the petitioner resulting from total sales in the amount of $408,116.21 was $143,693.90 and its net earnings, after deducting officers' salaries in the amount of $68,193.26, were $31,342.04. Upon audit of petitioner's income tax return for such year the respondent disallowed deductions from gross income on account of officers' salaries in the amount of $48,193.26 and disallowed $20,000 which represented the par value of the*1126 stock issued to officers in such year as additional payment for services rendered. In 1928 the petitioner was just beginning business. All its officers were men of considerable experience in manufacturing hosiery. Samuel and John Tait devoted their entire time to its affairs, but Ernest Tither was disabled by illness during a substantial portion of such year and rendered no service. During the years 1927 and 1928 the petitioner owned and operated ten 45 gauge legging machines, acquired as follows: four in 1927, two in February and one in November, 1928, two in March and one in August, 1929. The total cost, installed, of such machines was $82,642.50. All such machines were operated on a 24-hour-a-day *133 basis, and knitters or operators thereof worked in two 12-hour shifts. Whenever possible, repairs to such machines were made by operators, but the petitioner employed fixers whose duty it was to keep all machinery in good workable condition. The cost of repairing, including new parts to replace breakage and worn parts, was charged to expense on the books of the petitioners and all such charges were allowed by the respondent as deductions from income. In each of*1127 the taxable years the petitioners deducted 30 per cent of the cost of the legging machines from the gross income reported on its Federal income tax returns. Upon audit of such returns the respondent disallowed one-half of such deduction for 1928 and two-thirds of such deduction for 1929 and determined 15 per cent of cost as a reasonable allowance for depreciation for 1928, and 10 per cent of cost as a reasonable allowance for depreciation for 1929. At the hearing he moved to increase the deficiencies and alleged that 15 per cent of cost was excessive and unreasonable annual depreciation for the machines in controversy. OPINION. LANSDON: The respondent had determined to the extent of $20,000 the salaries paid to officers of the petitioner in the year 1928. The amount of such disallowance represents stock issued to such officers as bonuses, in addition to cash paid for the services of Samuel Tait, John Tait and Ernest Tither, in the amounts of $17,709.25, $6,776.14 and $14,269.59, respectively. In addition to such amounts the petitioner paid a cash salary to Walter Tither, who became an officer and stockholder to the extent of 100 shares on May 1, 1928, in the amount of $10,438.28. *1128 On the record we are of the opinion that the cash salaries paid the officers of the petitioner in 1928 were reasonable compensation for services rendered. The distribution of stock of the par value of $20,000 to Samuel Tait, John Tait and Ernest Tither, as an alleged bonus or additional salary, was in exact proportion to their respective holdings. Petitioners contend that the purpose of such allocation of the stock bonus was to preserve the relative original shareholdings of the officers. This is not a proper measure of the value of services, which must be based in work done rather than interest in the business. In Twin City Tile & Marble Co.,6 B.T.A. 1238; affd., 32 Fed.(2d) 229, this Board said: The value of services of an individual is not dependent upon the amount of stock owned. The value of services and the amount of stock owned have no necessary relationship to each other. The measure used in determining the increases in this case was stock ownership, regardless of the fact that certain stockholders may have been entitled to a greater or lesser amount if the *134 value of their services were solely considered. In order to be*1129 compensation for services, the value of the services must measure the amount and not stock ownership. Conceding for the sake of argument that the services of individuals in this case were fairly worth the amounts they received, this fact alone is not sufficient to constitute the amounts compensation. They must have been intended and paid as such. The rule in the opinion above cited has been followed in substance by the Board and the Federal courts in many subsequent decisions. C. S. Ferry & Son, Inc.,18 B.T.A. 1261; Gould-Mersereau Co.,21 B.T.A. 1316; and Marble & Shattuck Chair Co.,13 B.T.A. 657; affd., 39 Fed.(2d) 393. In conformity with the evidence and the above cited authorities, the determination of the respondent on this issue is affirmed. As its second cause of action the petitioner contends that it has been allowed insufficient depreciation on the legging machines in each of the taxable years. Under the provisions of section 23(a) of the Revenue Act of 1928, taxpayers are entitled to "a reasonable allowance for exhaustion, wear and tear for property used in trade or business." To determine such reasonable*1130 allowance it is necessary to know the cost of such property, the useful life and the salvage value at the termination of usefulness. In the Hailey-Ola Coal Co.,24 B.T.A. 895, we said: In this record there is no evidence whatever as to the remaining useful life or the salvage value of petitioner's depreciable assets, which are necessary elements for a computation of deductions for depreciation on either a unit-of-production basis or by the straight method. Kehota Mining Co.,3 B.T.A. 885; Grand River Gravel Co.,22 B.T.A. 1124. The respondent's determination must be approved. Bishoff v. Commissioner, 27 Fed.(2d) 91; Rouse v. Bowers, 30 Fed.(2d) 628; certiorari denied 49 Sup.Ct. 348; Reick v. Heiner, 25 Fed.(2d) 453; Atlanta Casket Co. v. Rose, 22 Fed.(2d) 800. [Italics supplied.] In the instant proceeding there is no controversy over the cost of the machines involved in the question of depreciation. The petitioner contends that the useful life of such equipment is not more than three and one-third years and asks for*1131 an allowance from income on that basis. The evidence in support of this contention is not convincing. The record discloses that at the date of the hearing the oldest of these machines had been in service almost exactly five years and was still in use. No evidence was adduced to show at what date its use would no longer be profitable to its owner. Officers of the petitioner testified that in their opinion none of the machines had a fair market value in excess of $2,000 at the close of the last taxable year here involved. If this was intended to establish salvage values at the termination of useful life, it falls far short of that purpose, since the record discloses that all of such machines were in regular use at least three years subsequent to such date. In our opinion salvage value is an element that appears only when property *135 can no longer be used profitably in a trade or business and has no relation whatever to the market value of a secondhand machine still in profitable use by its owner, which is the situation here. If the testimony as to market value of the legging machines involved was adduced for the purpose of proving actual depreciation determined by a*1132 survey of the property in question, in our opinion it also fails for that purpose. It is no more than the opinion of stockholders of the petitioner which is not supported by sufficient evidence to indicate that one-third of the value of each such machine was exhausted each year. Here again is the fact that at the date of the hearing one of the machines had been in use for five years and all the others in excess of three years. The very fact that the claimed depreciation is in round numbers and is exactly the same for each of the years involved justifies our conclusion that the rate claimed by petitioner is not based on actual valuation of the machinery ascertained by expert physical survey. Nor is there any evidence that petitioner has consistently used the actual valuation method in determining the additions to depreciation reserve on its own books. We think, therefore, that the evidence here does not bring the question within the rule applied in Cleveland Home Brewing Co.,1 B.T.A. 87, and other proceedings relied on by the petitioner. We think the petitioner has failed to prove either the useful life or the salvage value of the property here involved and therefore*1133 has not overcome the presumption that the determination of the respondent is correct. We are also of the opinion that the respondent has failed to show cause for any increase in the deficiency as requested in his motion duly made at the hearing. Decision will be entered for the respondent.