Appeal of Luke & Fleming, Inc.

[14] OPINION. Korner : This is an appeal by the taxpayer, Luke & Fleming, Inc., from a determination by the Commissioner of Internal Revenue asserting additional income and profits taxes for the fiscal year ending July 31, 1919. The taxpayer, a Georgia corporation, in its returns for that fiscal year deducted from gross income an amount of $4,728.97, claiming this amount to be a bad debt, ascertained to be worthless and charged off within the taxable year, under the provisions of section 234(a) (5), Revenue Act of 1918. The Commissioner disallowed this deduction from gross income, on the ground that the item deducted by the taxpayer as a bad debt had never, at any time, had an existence as a debt to the taxpayer. The facts are fully set forth in the foregoing findings of fact. To entitle a taxpayer to deduct from gross income, as a bad debt, an item ascertained to be worthless and charged off in a given year, such a debt must have had an existence in fact. A debt which never existed can not be charged off. The right to a deduction arises from the discovery that something which had value has ceased to have it; a debt which never existed had no value to lose. The facts here disclose that the policies of insurance were surrendered for cancellation before the occurrence of the fire which destroyed the cotton. The debt growing out of a liability incurred by an insurance company, under a policy of fire insurance, arises upon the happening of the event against which the policy insures, viz, the destruction by fire. If no policy of insurance was in force when the fire occurred, then the relation of debtor and creditor as between the insurance company and the taxpayer was not created. The taxpayer contends that it considered the insurance company indebted to it from the time of the occurrence of the fire until early in the year 1919, when, upon advice of counsel, it concluded that such a debt could not be established. At the latter date it charged off as worthless the item which it had theretofore considered to be a debt. The fact that the taxpayer considered a debt to exist did not give the debt an existence in fact. And, as stated above, if the debt has no existence in fact it can not be charged off as worthless and deducted from gross income as a bad debt. [15] The taxpayer conceded at the hearing that- the certificates of insurance were not independent contracts of insurance and had no force or effect independent of the policies of insurance they represented. Since the status of a debt could not be predicated on the policies of insurance which had been surrendered for cancellation, the certificates of insurance were likewise impotent in this respect. The taxpayer has not shown a debt to have existed from the insurance company to it. It must follow that it is not entitled to take as a deduction from gross income, in the nature of a bad debt, the item of $4,128.97 here in question. The issue as to whether or not the taxpayer, under these circumstances, would have been entitled to a deduction from gross income by reason of a loss is not raised in this record. This matter was touched upon in the argument of this appeal, but it was conceded by counsel for taxpayer that if under these circumstances a loss was sustained by the taxpayer, such loss was sustained in the year 1916 when the fire occurred. Since the taxpayer is not contending for a deduction by reason of such loss, in this appeal, counsel for both parties expressly waived a decision on this point. The deficiency as determined by the Commissioner is approved.