McReynolds v. Commissioner , 17 B.T.A. 331 ( 1929 )

OPINION.

Arundell :

In the taxable years petitioner drew from the corporation of which he was president, certain sums of money in excess of the salary paid him by the corporation and the rent which he charged it. The respondent has treated a part of these excess sums as dividends received by the petitioner.

In our opinion the respondent erred in treating as dividends that part of the amounts drawn by petitioner which he applied to the purchase of the building site and the construction of the building. The site was acquired and the building constructed in the name of the petitioner, but for the corporation and not for himself, as is shown by his subsequent transfer of the property to the corporation. He received no benefit from the amounts which he drew from the corporation and paid over for property which he was acquiring for the corporation. The amounts which it is shown were applied to the acquisition of the property for the corporation, and interest and taxes in connection therewith, are:

1922_$38,000.00

1923_ 70, 209.45

1924_ 4, 050. 00

1925_ 15, 404. 61

The amounts expended by petitioner in 1922 and 1923 in the acquisition of the building for the corporation exceeded his net withdrawals and for those years the respondent erred in taxing any amount to the petitioner as dividends. The deficiencies for those years in so far as they arise from respondent’s inclusion of the alleged dividends are disapproved. For the year 1924 only $4,050 is shown to have been applied to the property acquired for the corporation, leaving $19,613.98 withdrawn by petitioner and not accounted for. There is nothing in the record to show that this amount was not for petitioner’s personal use and it may accordingly be included in income as a dividend within the meaning of section 201(a) the Revenue Act of 1924. For the year 1925, while taxes and interest were paid out of the amounts drawn by petitioner, the portion of his withdrawals which is unaccounted for is greater than the $21,267.77 treated by the respondent as dividends, and we perceive no error on the part of the respondent in holding that amount to be taxable.

No issue is raised as to the penalty asserted for delinquency in filing the 1925 return.

Reviewed by the Board.

Judgment will ~be entered under Rule 50.