Graeper v. Commissioner

W. A. GRAEPER, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Graeper v. Commissioner Docket No. 46619. United States Board of Tax Appeals 27 B.T.A. 632; 1933 BTA LEXIS 1339; January 31, 1933, Promulgated *1339 1. Petitioner and his wife, living in Oregon, owned a business as equal partners. Later the business was incorporated, three other persons acquiring stock. No stock was issued to petitioner's wife, the shares representing her interest being held by the husband in his own name, at her request. She did not transfer her interest to him. Held, the petitioner owned only one-half the stock issued in his name and is taxable upon only one-half the profits from its sale. 2. Petitioner and his wife each owned one-half interest in certain corporate stock, but most of the stock stood in petitioner's name. They withdrew profits as earned, without any formal declaration of dividends. The bookkeeper, of his own accord, entered the amounts as loans to petitioner. Held, the withdrawals constituted dividends and not loans. 3. Petitioner leased a building in September, 1924, but the lease and rental were not finally fixed until June, 1925. At that time petitioner received payment of rentals in full from the preceding September. He reported income on the cash receipts basis for calendar years. He was also employed by his lessee and had in his possession sufficient of the lessee's*1340 funds to cover the amount of rentals in 1924, but had no authority so to apply them. Held, no part of the rentals paid in 1925 was constructively received by petitioner in 1924. 4. Allowance for depreciation and obsolescence of a theatre building, determined. Robert T. Jacob, Esq., for the petitioner. Owen W. Swecker, Esq., for the respondent. MARQUETTE *632 This proceeding is for the redetermination of deficiencies in income tax asserted by the respondent in the amounts of $2,073.49 for the year 1924 and $65.25 for the year 1925. Respecting the year 1924, it is alleged that respondent erred (1) in holding that petitioner received $18,322.66, or any amount, as a liquidating dividend; (2) in including as income $2,820.10 as rentals from a theatre corporation; (3) in disallowing deduction of $675 as depreciation on a theatre building. One other error was assigned but was abandoned. For 1926 the alleged error is the disallowance of $900 as depreciation deduction on a theatre building. FINDINGS OF FACT. In 1914 petitioner and his wife purchased the Union Avenue Theatre for $2,700, of which amount $1,600 was furnished by the wife*1341 from her separate funds. It was understood and agreed between them at the time that the theatre was to be owned by them *633 in equal shares and that they would operate it as partners. The agreement was not in writing, but they later executed and filed an "Assumed Business Name Certificate" as the owners of the theatre. Petitioner's wife was his assistant and worked from five to twelve hours each day in the business. Petitioner took title to the theatre at first, but transferred it to his wife on March 10, 1914. In 1920 a lease on the theatre building was acquired by Jensen, Von Herberg and Parker, and in order that petitioner and his wife might save their investment it became necessary to incorporate the business and include the lease owners as stockholders. The capital stock consisted of 150 shares, 74 of which were issued to petitioner and 25 1/3 to each of the three lessees. For personal reasons petitioner's wife was unwilling to have any business relations with the lessees and she authorized petitioner to take the stock in his own name, but did not convey to him her interest in the shares. In 1922 petitioner and his wife purchased the 76 shares held by the lessees. *1342 The latter transferred their stock certificates for 25 1/3 shares each, one certificate to petitioner, one to his wife and one to Alfred P. Dobson, petitioner's attorney, who was to hold the stock for petitioner's wife. Petitioner instructed his attorney to prepare minutes giving to petitioner and his wife the right to withdraw dividends as surplus was earned by the corporation. Through neglect or oversight those minutes were not prepared. Petitioner and his wife withdrew from the company amounts totaling $20,405 and reported them as dividends in their Federal income tax returns. Without the petitioner's knowledge the company's bookkeeper entered the amounts on the books as loans to petitioner. In 1924 the dividends so received amounted to $9,055. In their income tax returns for that year petitioner reported $7,456.38 and his wife reported $1,262.10 as income from dividends. The Union Avenue Theatre Company sold its assets in 1924 to the Multnomah Theatres Corporation for 225 shares of the latter's stock of the value of $22,500. The Union Avenue Theatre Company then dissolved. Petitioner and his wife, as the stockholders, received the company's net assets, consisting*1343 of $7,993.92 cash and the 225 shares of Multnomah Theatres Corporation stock issued to petitioner and his wife jointly. The respondent included also the $20,405 previously withdrawn by petitioner and his wife from the Union Avenue Theatre Company, on the theory that it was a personal loan to petitioner by the corporation. No loans by the company were ever authorized by its directors. The cost to petitioner and his wife of the stock of the Union Avenue Theatre Company amounted to $16,130. All the theatre *634 properties here involved were located in Portland, Oregon, where petitioner and his wife resided. After the Union Avenue Theatre was sold to the Multnomah Theatres Corporation, the latter engaged petitioner to manage the Egyptian Theatre. That property was built by petitioner and leased by him to the Multnomah Theatres Corporation in September, 1924. No rentals for the property were received until June 30, 1925, as the terms of the lease remained unsettled until that date. The lessee then paid $8,220 to cover rentals from September, 1924, to June 30, 1925. Petitioner kept no books of account for his personal affairs. He filed his income tax returns on the cash*1344 basis and did not report any of the Egyptian Theatre rentals as income for 1924. Respondent added $2,820.10 as rents from that theatre to petitioner's taxable income for that year. While managing the theatre for the Multnomah Theatres Corporation petitioner had custody of the daily receipts, which he deposited in his personal bank account. He kept memoranda of the deposits and from time to time paid the accumulated amounts to Multnomah Theatres Corporation by his personal check. He did not pay his own salary nor the rentals due him out of the funds thus in his banking account, although the amounts on hand were sufficient therefor. Whatever was due him was paid by check of the Multnomah Theatres Corporation as the latter prescribed that method of handling the respective accounts. The Egyptian Theatre was built in 1924, of reenforced concrete with metal sash, at a cost of about $90,000. The building contains four stores, each about 25 by 28 feet, one story high, on Union Avenue. The theatre portion of the building is two stories high. When built it was the best neighborhood theatre in the principal residential section of Portland, but not in the best location in that section. *1345 In 1926 a better theatre was built in the heart of the residential district and in 1927 another theatre was erected in that general locality. Ever since petitioner built his theatre the character of its immediate neighborhood has been deteriorating. The new residents are less desirable and petitioner's theatre has been losing caste. The building could not be adapted for use as offices and the cost of remodeling it for stores made that impracticable. The respondent has allowed deductions for depreciation of the building at the rate of 3 per cent per year. Petitioner seeks an allowance of 5 per cent per year for depreciation and obsolescence. OPINION. MARQUETTE: The respondent has charged the petitioner with having received, as owner, the entire amount of the sale price of the *635 Union Avenue Theatre Company's stock. We think the evidence does not justify that determination. It was not essential that petitioner's wife should have a stock certificate in her own name in order to own an interest in the stock. The reason for having the certificate covering her interest issued to petitioner has been explained. Under the laws of Oregon the separate property of a*1346 wife remains hers until she, by her own consent, parts with it. ; ; . In the present instance we have positive testimony that petitioner did not acquire his wife's interest in the stock of the Union Avenue Theatre Company. The certificates covering her interest, which were held by petitioner in his name, were held for her, on her authorization, as her agent. We conclude, therefore, that petitioner's wife owned a one-half interest in the stock; that upon its sale one-half the proceeds belonged to her, and that petitioner is taxable only upon one-half the net gain realized from the sale. From Augost 1922 to September 1924 petitioner and his wife withdrew an aggregate of $20,405 from the funds of the Union Avenue Theatre Company. The respondent has treated that amount as a loan to petitioner and has included it in petitioner's income as a liquidating dividend received upon dissolution of the company in 1924. The record shows that petitioner and his wife were the sole owners of the company's stock during the period in question. It shows that petitioner's*1347 attorney was instructed to prepare the proper minutes authorizing such withdrawals as they were earned and that the amounts so withdrawn were reported as income for the years when received. Although the company's bookkeeper entered the amounts withdrawn as loans to petitioner, he did so without instructions and in the absence of any resolution by the corporate directors authorizing such loans. A very similar situation arose in . Two individuals owned all the stock of a corporation and from time to time they made withdrawals from the company's surplus funds. The amounts withdrawn were entered on the company's books as accounts receivable. In holding that such amounts constituted dividends, rather than loans, the court said: * * * If these transactions constitute a loan or Ioans, then as a matter of fact the loan was made by Key to himself, which is, of course, an unthinkable thing, for a borrower necessarily implies a lender. * * * He and Mr. James owned this fund; it in all equity belonged to them. No other director had any real interest in it, nor did any creditor. I assume that it is the law that, *1348 "where the officers of a corporation distribute the profits among the stockholders, without authorization by either the directors or stockholders, the corporation may be bound by the acquiescence of all the stockholders; and where the rights of third persons are not thereby impaired, the *636 distribution of the profits of a corporation among its stockholders without any action on the part of the board of directors, but by consent or agreement of all the stockholders, is the equivalent of a dividend. Hence, an agreement between all the stockholders as to the manner in which the profits of the corporation shall be disposed of may be enforced, where the rights of creditors or of third persons dealing with the corporation are not thereby impaired." 14 Corpus Juris, p. 807, Par. 1227. * * * That decision was affirmed by the , that court saying: A formal declaration of the dividend was not necessary. ; . Any distribution by the company to its shareholders out of earnings or profits accumulated since February 28, 1913, was*1349 a dividend within the meaning of * * * the Revenue Act. To like effect are the decisions in ; ; ; . The case before us is not distinguishable upon its facts from those cited above. In our opinion the amounts withdrawn from the company's funds by the petitioner and his wife constituted dividends, taxable as income for the years when received. It follows that the respondent erred in his determination that the total amount of the withdrawals was a liquidating dividend upon the company's dissolution. The total amount withdrawn by petitioner and his wife in 1924 was $9,055, but only $8,718.48 of that amount was reported by them as income. Respondent allocated the entire amount received in proportion to the stockholdings of petitioner and his wife as shown by the corporate records, and increased petitioner's income subject to surtax in the amount of $444.11. Petitioner now accepts that determination and it is sustained. In June, 1925, petitioner received a lump sum covering rental*1350 of a theatre building from September, 1924 to June 30, 1925. During that time petitioner was in the employ of his lessee, the Multnomah Theatres Corporation, and had in his hands sufficient of the company's funds to pay the rentals as they accrued. He did not do so, but paid over the funds on hand from time to time and received his salary and rentals by check from the corporation. The delay in paying rent for petitioner's theatre was due to delay in settling the terms of the lease. Petitioner filed his returns on the cash receipts basis and did not report any of the rentals as income for 1924. Respondent contends that as petitioner had on hand in 1924 sufficient funds of the lessee to cover the rentals for that year, the amount of such rentals should be included as part of his taxable income. *637 It does not appear that petitioner was authorized to pay his salary, or any rents due him, out of the corporation funds he might have in his possession. It does appear that the method followed in handling the funds and balancing accounts was prescribed by the company. The situation here differs from that in *1351 , where by the terms of the contract of employment the taxpayer was authorized to and did draw the amount of its earned commissions from funds in its hands belonging to the employer. In , in considering the doctrine of the constructive receipt of income, we said: When taxable income is consistently computed by a citizen on the basis of actual receipts, a method which the law expressly gives him the right to use, he is not to be defeated in his Bona fide selection of this method by "construing" that to be received of which in truth he has not had the use and enjoyment. Constructive receipt is an artificial concept which must be sparingly applied, lest it become a means for taxing something other than income and thus violating the Constitution itself. Although in that case we applied the constructive receipt doctrine, it was because the amount in controversy had been earned by Brander, was credited to him on the books of a corporation of which he was president, and could have been taken by him at any time. But that is not the situation in the present proceeding. The terms of*1352 the lease of petitioner's theatre were not settled during the taxable year. While he was entitled to rental for the building in 1924, the amount of that rental was not fully determined until the middle of the year 1925. And although petitioner had in his possession funds of the lessee sufficient to cover the amount of rentals for 1924, he held those funds as agent for the lessee. With respect to them he was a fiduciary and had no authority to apply the funds to the payment of rentals due him, even if at that time the amount of such rentals had been determined. In our opinion the respondent's determination of constructive receipt of rentals in 1924 was not justified, and the amount so added to petitioner's taxable income for that year should be eliminated. In his income tax returns petitioner deducted 4 per cent of the cost of his Egyptian Theatre for depreciation. Respondent allowed only 3 per cent. Petitioner now claims 5 per cent for depreciation and obsolescence. The building is of reenforced concrete construction and should last for many years. But its usefulness as a theatre will be much less than its physical life. Already the character of its patronage has deteriorated*1353 and several newer theatres have become its competitors. One witness, a real estate appraiser of experience, limits the useful life of the theatre in question to twenty years from its *638 date of construction. He also testified that any remodeling of the building for stores or offices would be impractical. The respondent's allowance of 3 per cent deductions was apparently for depreciation only. We think there should be some allowance in respect of obsolescence. As the evidence before us indicates that the building will become useless in twenty years' time, in our opinion 5 per cent deductions, to cover both depreciation and obsolescence, should be allowed. Decision will be entered under Rule 50.