Wallin v. Commissioner

LUTHER WALLIN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Wallin v. Commissioner Docket No. 60748. United States Board of Tax Appeals 32 B.T.A. 697; 1935 BTA LEXIS 907; June 6, 1935, Promulgated *907 Where the petitioner paid the sum of $10,500 in satisfaction of all issues between a bank, on the one hand, and his daughter, son-in-law, and himself, on the other, and the issues were shown to include a judgment in foreclosure held by the bank against the son-in-law and another individual, and a libel suit by the son-in-law against the bank, in neither of which the petitioner was involved, and the only issue which was shown to be connected in any way with petitioner's business involved a bond executed by petitioner to stay an injunction, the terms and amount of the bond not being shown, and there was no showing of any liability on the part of petitioner under the bond, held that the petitioner is not entitled to deduct the $10,500, nor any part thereof as an ordinary and necessary business expense nor as a loss incurred in his trade or business. F. E. Hagler, Esq., for the petitioner. E. A. Tonjes, Esq., for the respondent. TURNER *698 The respondent determined an income tax deficiency against the petitioner in the amount of $977.37 for the year 1929, of which $903.66 is disputed in these proceedings. The issue submitted for determination*908 is described in an allegation in the petition reading as follows: (a) In determining the taxable net income of the petitioner for the year 1929 the Commissioner erroneously disallowed a deduction of Ten Thousand Five Hundred ($10,500.00) claimed on account of the payment of that amount to the Guaranty Bank & Trust Co., of Memphis, Tennessee, to discharge petitioner's liability on a bond he had executed in connection with the operation of his regular trade or business. FINDINGS OF FACT. The petitioner is an individual residing at Earle, Arkansas, where, for many years, including the taxable year, he has been engaged in the lumber business. In the year 1925 the petitioner undertook to purchase from the Guaranty Bank & Trust Co. of Memphis, Tennessee, hereinafter sometimes referred to as the bank, the standing timber on an 800-acre tract of land owned in fee by the latter corporation. The bank refused to sell the timber alone, but offered to sell the land in fee for a price of $16,000. This offer the petitioner declined. Upon his return to Earle, the petitioner discussed the bank's offer of sale with his son-in-law, B. G. Dickey, and one T. B. Johnson, who subsequently*909 contracted with the bank to purchase the land for $16,000, agreeing to pay $6,000 in cash and to give a mortgage on the land to secure the balance. They then entered into an agreement with the petitioner to sell to him the timber for the price of $8,000. Of this amount $6,000 was immediately paid and a note given for the remaining $2,000, which note was subsequently paid. Dickey and Johnson used this $6,000 in cash in making the initial payment to the bank on the purchase price of the property. Following the aforesaid transaction the petitioner purchased some 320 acres of other timber land, adjacent to the tract previously described, at a price of $800, intending to exploit the two tracts as one operation. Subsequently he decided to establish a plant on a larger tract, and sold his properties, together with certain logging equipment located on the 320-acre tract and valued by him at about $1,200, to A. P. DeMange, who agreed to pay him the sum of $33,000 for the operation as a whole. Dickey and Johnson failed to make the second payment on the purchase price of the 800-acre tract on the due date, and the bank instituted foreclosure proceedings against them. At or about the*910 *699 same time the petitioner was advised by DeMange that an injunction had been issued to prohibit the further cutting of the timber. As a result, the petitioner, to protect himself with reference to his purchase and sale of the timber, filed a bond to stay the injunction and to allow his vendee to cut the timber. In the meantime Dickey filed a libel suit against the bank, on grounds not explained in the record. Neither the amount nor the terms of the bond filed by the petitioner are disclosed. The record does not show whether any of the timber was removed from the land after the issuance of the injunction. The bank prevailed in its foreclosure suit, and at the sale thereunder Johnson bid in the property for $9,000 in an attempt to force the bidding to a higher amount. He was not financially able to pay such a sum, nor any amount, for the property and later withdrew, or attempted to withdraw, the bid to leave the bank's bid of $8,000 as the high bid. The record does not show whether there was an actual withdrawal or merely an attempted withdrawal of the $9,000 bid. Thereafter the petitioner tendered his personal check in the amount of $10,500, which bore an endorsement*911 on its face reading as follows: "Settlement of all issues between the Guaranty Bank and Trust Company, B. G. Dickey, Luther Wallin, and Loraine Wallin Dickey", and the check so tendered was accepted by the bank. Following this settlement Dickey dismissed his libel suit against the bank, and the lands were deeded to Loraine Wallin Dickey, daughter of the petitioner, and Hazel Johnson, the daughter of T. B. Johnson. In making out his income tax return for 1929 the petitioner claimed a deduction of $11,500 from his gross income as bad debts ascertained to be worthless and charged off his books in that year. The deduction included the $10,500 item aforesaid, all of which the respondent disallowed. OPINION. TURNER: The disputed deduction was claimed as a bad debt in petitioner's return, but in his petition he abandoned that theory and claimed it to be deductible as a payment made in connection with the operation of his regular trade or business. Whether the deduction is claimed as an ordinary and necessary business expense or a business loss is not clear from the pleadings nor from the discussion. Inasmuch, however, as the payment must be shown to have been made in connection*912 with the petitioner's business, whether claimed as an expense or a loss, our subsequent discussion will show that it makes *700 no difference on the record before us whether the deduction is claimed as a business loss or an ordinary and necessary business expense. The satisfaction of the bond given by the petitioner in connection with the injunction proceedings seems to be the basis for the petitioner's claim that the item of $10,500 paid to the bank constituted an ordinary and necessary business expense or a loss incurred in his business. The petitioner has failed, however, to provide us with the facts necessary to sustain such a contention. The most definite information with reference to the purpose of the payment is to be found in the endorsement contained on the check, to the effect that it was given as "Settlement of all issues between the Guaranty Bank and Trust Company, B. G. Dickey, Luther Wallin, and Loraine Wallin Dickey." We might assume that the issues referred to included the matter of the injunction bond which the petitioner stated was given to enable DeMange to proceed with the cutting of the timber. The petitioner was unable, however, to tell us whether*913 any timber was cut thereafter and whether there was in fact any liability under the bond so given. Furthermore, we were not advised as to the amount of the bond, nor given any definite information as to its terms. On the other hand, it is rather definitely shown by the record that the payment of $10,500 to the bank did cover the obligation of Dickey and Johnson for the balance due on the land. The statement on the check made no mention of the settlement of any issues between the bank and Johnson, but the petitioner stated in his testimony that upon the payment of the amount mentioned he could have had the land deeded to himself if he had so desired, and in that case the bank must have accepted the $10,500 as satisfaction of the obligation for the balance due on the land purchase. We have no showing whatever of any obligation on the part of the petitioner to satisfy the claims of the bank against his son-in-law, B. G. Dickey, or against Johnson. In fact the testimony of all the parties is to the effect that the purchase of the land in fee from the bank was the independent enterprise of Dickey and Johnson, and that the petitioner had nothing whatever to do with it. Even though*914 it should be conceded that the obligation under the bond given in the injunction proceedings was such that its satisfaction should properly be classified as an ordinary and necessary business expense or a business loss of the petitioner, there is no basis whatever for any claim or contention that the obligation of Dickey under the foreclosure proceedings constituted such an item to the petitioner, and since it is perfectly clear that Dickey's obligation with reference to the purchase price of the land was settled by the *701 payment of $10,500 in cash, and there is no evidence whatever to show what portion of the payment, if any, was applicable to the satisfaction of the bond, the determination of the respondent in this proceeding must be sustained. Judgment will be entered for the respondent for a deficiency in the amount shown by his notice of determination.