Nangle v. United States

Jones, Chief Judge, delivered the opinion of the court: The plaintiff sues to recover Federal income taxes for the combined calendar years 1942 and 1943. The sole question which the court must now determine is in what year or years the plaintiff was required to report for tax purposes two items, each in the amount of $25,000, and each representing part payment of a court allowance to plaintiff of fees for services as a special master. During the years 1942 and 1943 the plaintiff, an attorney, resided in St. Louis, Missouri, and filed his Federal income — 762 — tax returns for those years with the Collector of Internal Eevenue for the First District of Missouri. For each of the 2 years he reported income on a cash receipt basis. In 1938 the circuit court of the city of St. Louis appointed the plaintiff as a special master in litigation involving the trust estate of Hazlett Kyle Campbell, deceased, and authorized and directed him to determine the lawful heirs of the decedent. After performing his duties as special master the plaintiff filed his final report on Mareh 3,1941. On June 19,1941, the circuit court entered an order to the effect that plaintiff was entitled to an allowance of $50,000 for services rendered by him in connection with the trust estate and that this $50,000, together with certain earlier allowances not now in issue, would, when paid, constitute full payment to plaintiff for all services rendered by him.1 Some of the parties to the litigation, including the public administrator, sought an appeal from the circuit court’s order. "When the circuit court denied the right of appeal, the interested parties filed mandamus proceedings in the Supreme Court of Missouri. After the mandamus proceedings had been filed the co-trustees of the Campbell estate, Allen C. Orrick and the St. Louis Union Trust Company, were advised by their counsel to limit disbursements from the trust fund to items necessary for the preservation and protection of the estate. Following the issuance of the circuit court’s order of June 19, 1941, allowing him $50,000, plaintiff attempted to obtain payment of all or part of that fee by addressing both oral and written requests to the attorneys who represented the trustees of the Campbell estate. One written request dated September 15, 1941, stated that an advance of twenty or twenty-five thousand dollars of the fee would be helpful to plaintiff because of income tax considerations. On December 30, 1941, plaintiff addressed a letter to one of the attorneys representing the trustees, again asking payment of his fee before January 1,1942, to avoid “* * * the delay into next year * * The funds of the St. Louis Union Trust Company, including the Campbell trust funds, were maintained on deposit in — 763 — the First National Bank of St. Lonis. Disbursements from the Campbell trust funds were made by checks drawn by the Union Trust Company on the First National Bank. Before the checks were issued it was necessary that they be authorized by the trustees. Checks for payments out of the Campbell trust funds were prepared by appropriate employees or officials of the Union Trust Company upon instructions from Mr. William Frazier who was the trust officer for Union Trust and administrative officer for the Campbell estate. Depending upon Mr. Frazier’s instructions such checks were either mailed to the payees or routed to him for delivery. In accordance with these procedures a check for $25,000, payable to plaintiff, was prepared, dated December 31,1941, and on that date delivered to Mr. Frazier. On the same day Mr. Frazier conferred with the Union Trust Company’s cotrustee, Mr. Orrick, and with one of the attorneys representing the trustees. Later, on that day, the plaintiff called at Mr. Frazier’s office and was shown the check. An understanding was reached between the plaintiff and Mr. Frazier to the effect that the check would remain in Mr. Frazier’s possession. Plaintiff then endorsed the check in blank, signed a receipt certifying that payment of $25,000 had been made, and returned both the check and the receipt to Mr. Frazier. At the time of the meeting between Mr. Frazier and plaintiff the mandamus proceedings were still pending before the Supreme Court of Missouri and Mr. Frazier, having been advised by counsel, did not intend to deliver the check to plaintiff. The check remained in the possession of the Union Trust Company until May 26, 1942, on which date it was deposited in the First National Bank to the credit of the Campbell estate. In 1942 the plaintiff continued his efforts to obtain payment of his fee from the Campbell trustees, again directing his requests to the trustees’ counsel. On August 8, 1942, he wrote a letter in which he conveyed the impression that he would bring suit against the trustees if the fee was not paid. Thereafter the trustees filed a motion in the cause pending in the Supreme Court of Missouri requesting the court to — 764 — authorize the trustees to pay certain allowances, including the plaintiff’s fee, pending decision of the case on its merits. The Supreme Court “sustained” this motion on November 12, 1942. On November 25, 1942, the Union Trust Company issued a check for $25,000 drawn on the First National Bank and payable to plaintiff. The receipt attached to the check indicated that the check was payment for services as a special master and that a check for these services had been originally issued on December 31, 1941. In issuing the check dated November 25,1942, Mr. Frazier intended it as a replacement for the check dated December 31,1941. Plaintiff deposited the second check and it was paid by the First National Bank on November 27,1942. On January 4, 1943, the Union Trust Company issued another check for $25,000 payable to plaintiff. The receipt attached to the check recited that the check was for services rendered by plaintiff as a special master. Plaintiff deposited this check and it was paid by the First National Bank on J anuary 5, 1943. In his income tax return for the calendar year 1942 plaintiff reported as income the $25,000 represented by the check issued on November 25, 1942, and paid taxes accordingly. In his tax return for the calendar year 1943 he reported as income the $25,000 represented by the check issued on J anuary 4,1942, and paid taxes accordingly. The Commissioner of Internal Bevenue subsequently examined plaintiff’s income tax returns for 1941, 1942, and 1943 and determined that the entire $50,000 paid to the plaintiff under the circuit court order of June 19, 1941, was available to and constructively received by him in the calendar year 1942. Thereupon deficiency income taxes were assessed against and collected from the plaintiff for the combined years 1942 and 1943. It is these taxes which plaintiff now seeks to recover. Plaintiff’s first contention is that the check dated December 31,1941, was actually delivered to him on that date and was thus taxable income to him for the calendar year 1941. Defendant takes the position that the check constituted — 765 — neither actual nor constructive income to plaintiff in 1941 since plaintiff in reality received nothing. Section 42 of the Internal Revenue Code of 1939,26 U. S. C. (1952 Ed.) § 42 (a) j which was in effect at all times pertinent to plaintiff’s claim, provides in part as follows: The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period. Treasury Regulations 111, § 19.42-2 (1940 Supp. C. F. R.), promulgated under the Internal Revenue Code, provides as follows: Income Not Reduced to Possession. Income which is credited to the account of or set apart for a taxpayer and which may be drawn upon by him at any time is subject to tax for the year during which so credited or set apart, although not then actually reduced to possession. To constitute receipt in such a case the income must be credited or set apart to the taxpayer without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment is to be made, and must be made available to him so that it may be drawn at any time, and its receipt brought within his own control and disposition. A book entry, if made, should indicate an absolute transfer from one account to another. It is the conclusion of the court that the plaintiff received no part of his fee for services performed as special master during the calendar year 1941 because the check dated December 31,1941, was never actually delivered to him and no funds were available to him during that year. At the time plaintiff met with Mr. Frazier on December 31,1941, his right to receive the fee as special master was not legally settled since mandamus proceedings from the circuit court’s order awarding him the fee had been filed and were pending in the Supreme Court of Missouri. Mr. Frazier had been advised by counsel to limit disbursements from the trust funds to items necessary for the protection and preservation of the estate and he had no intention of paying plaintiff any part of the fee or of allowing plaintiff to retain — 766 — possession of the check. It was only after the parties had reached an understanding to the effect that the check would remain in Mr. Frazier’s possession that plaintiff was permitted to endorse it and sign the accompanying receipt. Plaintiff points to certain book entries made in connection with the Campbell trust estate to support his position that the check dated December 31, 1941, was a partial payment of his fee on that date. However, these entries are contrary to the realities of the situation. It is clear from the evidence before the court that no funds were available to the plaintiff on December 31, 1941, and that he received nothing on that date. In the light of all the facts and circumstances it is obvious that the entire transaction was merely an effort to accommodate plaintiff for tax purposes. Since in reality plaintiff received nothing in 1941, we hold that no part of his fee as special master was taxable income during that year. Plaintiff cites Kahler v. Commissioner, 18 T. C. 31, and Estate of Modie J. Spiegel, et al. v. Commissioner, 12 T. C. 524, in support of his contention that the check dated December 31, 1941, was taxable income to him in 1941. Neither of these cases is in point since the checks involved therein were actually delivered without qualification or restriction. Such was not the situation in the present case. Plaintiff’s second contention is that the check for $25,000 received on January 4, 1943, was income to him for the calendar year 1943. It is the Government’s position that the payment of this amount on January 4, 1943, did not create income to the plaintiff in 1943 because the funds were available to him in 1942 and were constructively received by him during that year. A somewhat similar problem was before this court in the case of Loring M. Black v. United States, 131 C. Cls. 165. In that case the plaintiff became associated with a group of attorneys who referred to themselves as the “Pool”. The agreement of association provided that the plaintiff would receive 10 percent of the net collections received by the Pool. Plaintiff was advised by the Pool’s accountant that his share of the net income up to May 31,1937, was $29,000. Plaintiff actually received $11,000 in 1937, but included the entii’e $29,000 in his income tax return for that year and paid — 767 — taxes thereon. He subsequently sued for a refund in this court, claiming that he should have been taxed only upon the $11,000 actually received in 1937 since he was on a cash basis. In rejecting the plaintiff’s contention the court made the following statement beginning at page 166: The plaintiff takes the position that as a taxpayer on a cash basis, nothing was taxable income to him unless he received it during the taxable year. This position is untenable. Money which becomes available to a cash basis taxpayer in the taxable year is taxable income, whether he reduces it to possession or not. If it were not so, a taxpayer could juggle his income almost at will between taxable years whenever it would be of advantage to him to do so. The entire $29,000 was, so far as appears, available to the plaintiff in 1937. The Pool had closed its books on its fiscal year on May 81,1937. The collections were in, the expenses were computed, and the plaintiff’s agreed share of the money in hand was $29,000. No reason appears why it could not have been collected by asking for it. We conclude that the plaintiff did not make a mistake in including it in his income for 1937. In the instant case there appears to be no reason why the plaintiff could not have collected his entire fee in November or December of 1942 by merely asking for it. The amount of the fee, $50,000, had been set by the circuit court’s order of June 19, 1941. When the Supreme Court of Missouri on November 12,1942, gave the trustees authority to make the payment, funds were available in the trust estate with which to make payment. The evidence does not reveal that the plaintiff ever made demand after November 12,1942, or that the trustees refused or withheld payment upon demand, and there is nothing in the record to indicate that the trustees had any reason for withholding payment after the Supreme Court had acted. There is no reason to doubt that payment would have been made had plaintiff made demand. One other factor also supports the conclusion that the entire $50,000 was available to plaintiff in 1942. When plaintiff received interest for the delay in the payment of his fee, the interest was paid on the entire $50,000 from June 19,1941, the date of the circuit court order establishing the amount, to November 25,1942, the date the trustees paid the plaintiff the first $25,000. Plaintiff received no interest — 768 — after November 25, 1942. This fact further indicates that the full amount of the fee was available to plaintiff on November 25, 1942, and that the trustees would have paid him the entire $50,000 if he had asked for it. The present case falls within the scope of the court’s decision in the Black case, supra. Since the entire fee was available to the plaintiff in 1942 and could have been obtained upon demand, we hold that the full $50,000 was taxable income to the plaintiff in 1942. The Commissioner of Internal Revenue was correct in so ruling and the plaintiff’s petition will be dismissed. It is so ordered. Laramore, Judge; Madden, Judge; Whitaker, Judge/ and Littleton, Judge, concur. FINDINGS OF FACT The court, having considered the evidence, the report of Commissioner W. Ney Evans, and the briefs and argument of counsel, makes the following findings of fact : 1. In this action plaintiff seeks a refund of Federal income taxes for the combined calendar years 1942 and 1943. The sole issue at this time1 is the determination of the proper year or years for the taxpayer to report for tax purposes two items, each in the amount of $25,000, and each representing part payment of a court allowance to plaintiff of fees for services as a special master.2 2. Plaintiff’s appointment as a special master was made in 1938 by the circuit court of the city of St. Louis in litigation involving the trust estate of Hazlett Kyle Campbell, deceased. He was authorized and directed to determine the lawful heirs of the decedent. His final report was filed on March 3,1941. 3. On June 19, 1941, the circuit court entered an order which contained the following: * * * The Special Master, John J. Nangle, having since July 22,1938, the date of his appointment as such, ren — 769 — dered substantial services to the trust estate here in controversy, the Court, having heretofore made certain reasonable allowances to said John J. Nangle, that have been made and paid on account, now finds and adjudges that, in addition to said. prior allowances, said John J. Nangle is reasonably entitled to an additional allowance of $50,000.00, which, together with said earlier allowances, shall, when paid, constitute full payment and compensation to said John J. Nangle for all services rendered by him.3 4. An appeal from the circuit court’s order was sought by some of the parties to the litigation. Among them was the public administrator, who contended then and later that the Campbell estate was not a trust estate. When the circuit court denied the appeal, the interested parties filed mandamus proceedings in the Supreme Court of Missouri. These proceedings were pending in December 1941. 5. Following the issuance of the circuit court’s order plaintiff sought to obtain payment of all or part of the fee that had been allowed him. His requests were made orally and in writing, and were addressed to the attorneys who represented the trustees of the Campbell estate. One such request, made in writing on September 15,1941, stated that an advance of $20,000 or $25,000 of the fee would be helpful to plaintiff because of income tax considerations. 6. The lawyers representing the trustees included Mr. Daniel M. Kirby and Mr. Harry W. Kroeger, of the law firm of Nagel, Kirby, Orrick, and Shepley. Mr. Allen C. Orrick was a co-trustee of the. estate with the St. Louis Union Trust Company, whose trust officer, Mr. William G. Frazier, was administrative officer of the estate. After the mandamus proceedings were filed in the. Missouri Supreme Court counsel for the trustees (Messrs. Kirby and Kroeger) advised their clients (Mr. Orrick and Union Trust) to limit disbursements from the trust funds to those items which were necessary for the preservation and protection of the estate. 7. In December 1941 representatives of all of the Campbell estate beneficiaries who were named as such in the circuit — 770 — court’s order of June 19,1941, signed a petition addressed to the trustees of the estate requesting the payment by the trustees of various costs and expenses, including the $50,000 allowance to plaintiff. The petition was not signed by the public administrator or by anyone purporting to act in his behalf. 8. On December 30, 1941, plaintiff addressed a letter to Mr. Kroeger, again asking for payment of his fee before January 1, 1942, to avoid “* * * the delay into next year * * and attached the petition described in the preceding paragraph. 9. The St. Louis Union Trust Company was, as its name implies, a corporate trust company. It was not a bank:. Its funds were deposited in the First National Bank in St. Louis. Disbursements from the Campbell trust funds were made by checks drawn by Union Trust on the First National. The checks had to be authorized by the trustees, but were not signed by them. Checks for payments out of Campbell trust funds were prepared by appropriate employees or officials of Union Trust upon instructions from the administrative officer, Mr. Frazier, and were either mailed to the payees or routed to Mr. Frazier for delivery by him, also in accordance with his instructions. In conformity with these procedures a check in the amount of $25,000, payable to plaintiff, was prepared, dated December 31,1941, and on that day delivered to Mr. Frazier. 10. With this check in his possession Mr. Frazier conferred with Union Trust’s co-trustee, Mr. Orrick, and the trustees’ counsel, Mr. Kroeger. Mr. Kirby, senior counsel, was then out of the city. Later, on the same day, plaintiff called at Mr. Frazier’s office. Mr. Frazier exhibited the check to plaintiff, but did not hand it to him until an understanding had been reached that plaintiff would endorse the check and leave it in Mr. Frazier’s possession. Pursuant to this understanding plaintiff endorsed the check in blank, signed the receipt that was attached to it (certifying that payment of $25,000 had been made “on account for services as special master per order of circuit court”), and returned the check and the receipt to Mr. Frazier. — 771 — 11. The cheek to which reference has been made in the two preceding findings was never delivered to plaintiff. It remained in the possession of Union Trust until May 26,1942, when it was deposited by Union Trust in the First National Bank to the credit of the Campbell estate. Meanwhile, entries in the records of Union Trust for the Campbell estate showed the disbursement on December 31, 1941, of $25,000 to plaintiff on account of fees payable to him as special master. One such record was Union Trust’s worksheet for the Campbell estate income tax for 1941. Another was the trustees’ report to the circuit court of receipts and disbursements on behalf of the trust estate. After the check was deposited in May 1942, Union Trust’s ledgers for the Campbell estate carried entries showing credit for $25,000 as a “refund” of the payment theretofore made to plaintiff. 12. At all times material to this action plaintiff paid his income tax on a cash basis. His return for the calendar year 1941, filed in March 1942, carried the following: Note: Fee of $25,000 paid by the St. Louis Union Trust Company for services as Special Master in Campbell Estate Will Contest not included in this return as determination of whether restriction placed on such fee amounts to constructive receipt had not been determined at time of filing 1941 return. If such fee is determined to have been constructively received in 1941, then amended return will be filed including such fee as income. No such determination was ever made.4 13. Plaintiff continued his efforts to obtain payment of his fee by the Campbell trustees, again directing his requests to the trustees’ counsel. On August 8, 1942, he wrote to Mr. Kirby, reviewing the situation, pointing out that two years more might elapse “* * * before this case is decided on its merits * * *” and that “* * * the delay in making this payment to me has brought about a substantial loss due to increasing taxes * * and expressed “* * * the opinion that finding myself in this situation it is necessary that some action be taken by me in order to establish my claim.” The — 772 — thought which plaintiff meant to convey, and which the attorneys for the trustees understood, was that if the fee was not paid, plaintiff intended to bring suit against the trustees. 14. (a) Thereafter, a motion was filed by the trustees in the cause then pending in the Supreme Court of Missouri asking the court to authorize the trustees to pay certain allowances (plaintiff’s fee included) pending decision of the case on its merits. On November 12, 1942, the Supreme Court “sustained” the motion. Attached to the motion was a copy of the petition described in finding 7 wherein the beneficiaries of the estate asked the trustees to pay certain items allowed by the circuit court’s order of June 19,1941. The motion recited the same items, which totaled $66,514.05, being $16,514.05 in excess of the $50,000 item representing plaintiff’s fee. (b) On November 12,1942, when the Supreme Court sustained the trustees’ motion for payment of the allowances, che balance on deposit as income of the Campbell trust was: (1) according to the ledger sheets of the St. Louis Union Trust Company, $68,015.87, and (2) according to the report which the trustees filed in circuit court, containing “Statement of Receipts and Disbursements from Sept. 30, 1942 to Mar. 31,1943,” $43,015.87. The difference of $25,000 between the two records resulted from the action of Union Trust (a) in returning the $25,000 credit to its ledger sheets upon deposit of the check on May 26, 1942, and (b) in withholding from the trustees’ report the reinstatement of the $25,000 credit until after the Supreme Court sustained the motion. 15. On November 25, 1942, Union Trust issued a check drawn on First National in the sum of $25,000, payable to plaintiff, with receipt attached showing that the payment was on account “for services as special master * * The receipt also contained the following recital: “(Check for payment was originally issued 12-31-41).” The same recital was entered on Union Trust’s ledger sheet, while the trustees’ report to the circuit court carried an entry dated November 25,1942: “Received refund of check issued 12/31/41 to order of John J. Nangle (5/26/42).” This check was deposited by plaintiff, and was paid by First National on November 27,1942. — 773 — The trust officer, Mr. Frazier, in issuing the check dated November 25, 1942, consciously intended it as a replacement of the check dated December 31,1941. 16. In his tax return for the calendar year 1942, which he filed in April 1943, plaintiff reported as income the $25,000 received in the check of November 25, 1942, and paid tax accordingly. 17. On January 4,1943, Union Trust issued another check on the First National for $25,000 payable to plaintiff, to which was attached a receipt of payment for “services as special master * * This check was deposited by plaintiff, and was paid by First National on January 5, 1943. 18. In his tax return for the calendar year 1943, which he filed in April 1944, plaintiff reported as income the $25,000 received in the check of January 4, 1943, and paid tax accordingly. 19. On March 4,1943, plaintiff wrote to Mr. Kroeger: I have given the question of interest on my fee very conscientious thought * * *. I * * * feel that I should request the Trust Company to pay the interest. * * * * * * the delay has caused me personal and financial inconvenience and I believe in view of this if I am legally entitled to the interest it should be paid. I should like, therefore, to have the Trust Company send me a check for whatever the interest is at a time convenient for them to do so. * * * 20. On April 17,1943, Union Trust issued a check on First National payable to plaintiff in the sum of $2,150, to which was attached a receipt for “payment in full to date being interest at 3% from 6/19/41 to 11/25/42 on $50,000.00 the amount allowed under court order dated 6/19/41 for services as special master.” Plaintiff deposited the check, and it was paid by First National on April 19,1943. The rate of interest legally allowable and collectible for delay in the payment of claims was at that time six percent. In paying plaintiff three percent Mr. Frazier, the trust officer, considered the payment to represent the settlement of a claim for interest rather than payment in full of a legal obligation. Plaintiff so understood the transaction and acquiesced in it. — 774 — 21. Sometime after 1943 plaintiff’s income tax returns for 1941,1942, and 1943 were examined by the Commissioner of Internal Revenue, who determined that the entire $50,000 paid to plaintiff under the circuit court’s order of June 19, 1941, was available to and constructively received by plaintiff in the calendar year 1942. Thereupon, deficiency income taxes were assessed to and collected from plaintiff for the combined years 1942 and 1943 in the sum of $7,750.65, together with deficiency interest thereon in the sum of $1,874,17, plus interest on the total amount in the sum of $1,772.91. These items total $11,397.73, which plaintiff paid, in the amount of $50 on April 21, 1948, and $11,347.73 on May 9, 1951. 22. (a) When the trust officer, Mr. Frazier, gave instructions for the preparation of the check dated December 31, 1941, described in finding 9, and when he conferred with plaintiff on that day (finding 10), he intended that the check should not be delivered to plaintiff for negotiation by him on that day. This intention was part of considered action by him for protection of the trust estate in accordance with advice of counsel. (b) There was never established, by or on account of the check of December 31,1941, a credit on which plaintiff could have drawn, except insofar as the check dated November 25, 1942, was a replacement of the earlier check. No credit on which plaintiff could have drawn was established by either check prior to November 25,1942. 23. During the closing months of 1941 plaintiff requested the trustees to pay part (half, or approximately half) of his fee in 1941, with the remainder to follow in 1942. By the time, in 1942, the trustees were willing to make payment, that year was drawing to a close. The trustees accordingly made payment of part of the fee in 1942 and part in 1943. 24. (a) Except for the check of November 25,1942, there was never established, prior to January 1943, a credit on which plaintiff could have drawn without some prior act by the trustees and by the Union Trust Company. (b) It is not established by the evidence (1) that plaintiff made demand of the trustees for payment of the full $50,000 after November 12,1942 (when the trustees’ motion for per — 775 — mission to make payment was sustained) and prior to December 31, 1942; (2) that the trustees (or Union Trust, in its separate, corporate capacity) refused or withheld payment in full during such period for any reasons of their own; (3) that either (the trustees or Union Trust) had any reason for so refusing or withholding such payment after November 12,1942; or (4) that such payment would not have been made upon demand. CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is therefore dismissed. Footnotes [1] The pertinent part of the circuit court's order Is quoted In our finding S. [1] The issue of liability was severed by agreement of the parties. If plaintiff I» entitled as a matter of law to recover, counsel for the parties expect to stipulate the amount. [2] Plaintiff is a lawyer, residing and practicing In St. Louis, Missouri. [3] The earlier allowances totaled $50,000, and were paid in two parts: $25,000 on April 1, 1940, and $25,000 on December 4, 1940. Neither of these payments is in issue here. [4] One of plaintiff’s contentions in this action is that, by reason of the $25,000 checlc dated December SI, 1941, receipt of that sum in 1941 was actual rather than constructive.