Manistique Lumber & Supply Co. v. Commissioner

MANISTIQUE LUMBER AND SUPPLY COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Manistique Lumber & Supply Co. v. Commissioner Docket No. 52588. United States Board of Tax Appeals 29 B.T.A. 26; 1933 BTA LEXIS 1011; September 14, 1933, Promulgated *1011 1. Where petitioner constructed a roadway which, under the facts, was permanent in its nature, it will not be permitted to deduct its cost as current expense. 2. Where petitioner elected in 1927 to charge off specific items as bad debts, it will not be permitted in subsequent years to charge off other specific bad debts and set up a reserve for unspecified bad debts without the consent of the Commissioner of Internal Revenue. Harry H. Meisner, Esq., for the petitioner. Owen W. Swecker, Esq., for the respondent. ADAMS *26 This proceeding involves the correctness of the income tax deficiency found by the Commissioner of Internal Revenue as against the petitioner, for the years 1927 and 1928. On December 13, 1930, the Commissioner forwarded to the petitioner a sixty-day letter showing an income tax deficiency for the year 1927, in the sum of $98.46, and for the year 1928, in the sum of $704.40, claiming a total deficiency of $802.86. The petitioner filed its petition in due time with the United States Board of Tax Appeals seeking a review of the Commissioner's finding. FINDINGS OF FACT. We find the facts to be as follows: The Manistique*1012 Lumber & Supply Co., the petitioner herein, was incorporated under the laws of the State of Michigan in April 1927, and was authorized to engage in the lumber and building supply business. After its incorporation, and during the year 1927, the corporation purchased certain unimproved lands to be used as a lumberyard. At the time of such purchase there were no roadways on the property and it became necessary for the corporation to construct a roadway on the same in order that it and its customers might have ingress and egress to and from its place of business. This construction was accomplished during the year 1927 at a total cost to petitioner, according to its books, of $1,557.16, which amount was set up on the corporation's books under the heading "Yard Improvement." On its 1927 income tax return the corporation deducted $689.29 of the total cost of the roadway as an expense incurred during that year. In its 1928 income tax return the remaining portion of the cost of the road, namely, $867.87, was deducted as expense. The corporation filed its first income tax return in March 1928, for the period April 1 to December 31, 1927, in which it set up an *27 item of $883.07*1013 as loss on specific bad debts charged off during that period. In its 1928 return the corporation claimed a deduction of $8,248.78, of which amount $6,248.78 represented specific bad debts charged off during 1928, and $2,000 represented a provision for reserve for bad debts. The corporation's balance sheet as of December 31, 1927, filed with its 1927 income tax return, does not disclose any provision for reserve for bad debts. The first provision for a reserve for bad debts appears in petitioner's balance sheet as of December 31, 1928, in which a reserve for bad debts is disclosed in the amount of $2,000. The respondent allowed the bad debt deduction of $883.07 for the year 1927, and $6,248.78 of the deduction claimed for the year 1928, but refused to allow the $2,000 item set up as a reserve for bad debts December 31, 1928. At the trial petitioner introduced, as a witness, Glenn P. Thomas, petitioner's vice president and treasurer. He testified that he was familiar with the item of $689.29 and that it was a charge for cinders put in the yard in order to make a level road, so that the road could be used to take care of their business. He testified that it was not a permanent*1014 improvement because it continually had to be filled in; that it was constructed after they opened the business by putting in stone and various debris from building jobs and material and cinders and gravel put on top of that; that the original cost of building the road was approximately $1,557.16. We find, under all the testimony in this case, that the item of $867.87 which petitioner seeks to deduct for the year 1928 as current expense was incurred in the permanent improvement of petitioner's property. On the second question, the matter of the deductibility of the $2,000 item set up as a reserve for bad debts, we find the facts to be: That in reporting its income tax for 1927, petitioner elected to adopt the method of charging off its specific bad debts. In its return for 1928 it undertook to change this method by setting up on its books certain specific losses from bad debts and properly setting up a reserve for bad debts; that this was done without the consent of the respondent. OPINION. ADAMS: The questions presented in this case are two: First, whether under the above facts, the respondent erred in failing to allow the deduction claimed in petitioner's income tax return*1015 for the year 1928, of the sum of $867.87 as ordinary and necessary business expense, or whether it constituted a permanent improvement which was properly chargeable to permanent improvement of petitioner's property, and, as such, represented a capital expenditure. *28 The pertinent portions of section 215(a) of the Revenue Act of 1926 and the regulations thereunder are as follows: SEC. 215. (a) In computing net income no deduction shall in any case be allowed in respect of - * * * (2) Any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate. Section 24(a) of the Revenue Act of 1928 is identical with the above quoted portion of the 1926 Act. Article 292, Regulations 69, reads as follows: ART. 292. Capital expenditures. - Amounts paid for increasing the capital value or for making good the depreciation (for which a deduction has been made) of property are not deductible from gross income * * *. Under these provisions and the above findings of fact, it seems to us clear that the determination of the respondent was correct, and as to this matter, his findings are approved. *1016 We feel that this question has been settled by the opinions of the Board and the Courts. This Board has held that expenditures for items that are to continue in use in the business are to be classified as capital items. ; ; ; . The Board has also held that, in the absence of evidence, if expenditures were made for repairs the Commissioner's determination should be approved. . In this case it is clear that the expenditures were not made for repairs, since the expenditures were for the original construction of the road necessary to the petitioner's business, which was afterwards repaired from time to time. The second question presented is whether or not the Commissioner erred in refusing to allow the petitioner to set up, in its 1928 income tax return, loss both for specific bad debts and also a reserve for bad debts which have not been ascertained definitely to constitute losses. Under the findings*1017 above, we believe this question to be determined by the Revenue Act of 1928, together with the regulations thereunder, the pertinent portions of such act and regulations being as follows: [Sec. 23.] In computing net income there shall be allowed as deductions: * * * (j) Bad Debts. - Debts ascertained to be worthless and charged off within the taxable year (or, in the discretion of the Commissioner, a reasonable addition to a reserve for bad debts); and when satisfied that a debt is recoverable only in part, the Commissioner may allow such debt to be charged off in part. Article 191, Regulations 74, reads in part as follows: ART. 191. Bad Debts. - Bad debts may be treated in either of two ways - (1) By a deduction from income in respect of debts ascertained to be worthless in whole or in part, or (2) By a deduction from income of an addition to a reserve for bad debts. *29 Under the law and the authorities, petitioner had the option to adopt and use either one of these methods, but it did not have the right, without the approval of the Commissioner, to use both, according to its caprice or its interest. *1018 Petitioner did not request the respondent to change the method which he had adopted, and was not given any authority to do so, and therefore had no legal right to change the method which it had originally adopted. The authorities on this question are uniform and it seems to be well settled. ; affd., , held that the taxpayer's election to deduct specific bad debts for a given year was binding for subsequent years. ; . Many other cases announcing the same doctrine might be cited, but we feel it unnecessary to do so. We have noted petitioner's citation of the case of , but in our opinion it does not apply to the present situation. The finding of the Commissioner on the second issue is affirmed. Judgment will be entered for the respondent.