Carlton Bldg. Co. v. Commissioner

CARLTON BUILDING COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Carlton Bldg. Co. v. Commissioner Docket No. 68540. United States Board of Tax Appeals 29 B.T.A. 599; 1933 BTA LEXIS 914; December 19, 1933, Promulgated *914 Respondent's determinations of deficiency fraud penalty and interest affirmed. Charles Rosenbaum, Esq., for the petitioner. Nathan Gammon, Esq., for the respondent. LANSDON *599 OPINION. LANSDON: The petitioner is a Colorado corporation with its principal office at Denver. The respondent has determined a deficiency in income tax for the year 1926 in the amount of $1,241.99, to which he has added a 50 percent fraud penalty and interest in the respective amounts of $621 and $406.91. No evidence was introduced as to the deficiency asserted. The determination of the respondent is affirmed. *600 The respondent supported his affirmative allegation of fraud by oral and documentary evidence. From such evidence we find as a fact that in the taxable year the petitioner deducted from gross income the amount of $6,925 as a commission paid to one Sam Levy in connection with the sale of a property known as the Carlton and that such amount was never so paid. Levy testified that he signed a receipt acknowledging such payment, but that he never received the same or any part thereof. He signed such document at the request of Joseph Buchhalter*915 who, for his own purposes, desired to show a large selling cost in the disposition of the building. Petitioner's return shows that this amount was deducted from gross income in the taxable year. The evidence shows that it was not paid out by petitioner as an ordinary and necessary expense in that or any other year. In the absence of any rebutting evidence or of any reasonable explanation of the deduction here involved, the respondent's determination of fraud must be affirmed. Decision will be entered for the respondent.