Thomson v. Commissioner , 17 B.T.A. 127 ( 1929 )

PETER G. THOMSON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Thomson v. Commissioner

Docket No. 20948.

United States Board of Tax Appeals

17 B.T.A. 127; 1929 BTA LEXIS 2349;

August 22, 1929, Promulgated

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The Commissioner's action in disallowing a claimed deduction alleged to represent a debt ascertained to be worthless and charged off in the taxable year approved.

Briggs G. Simpich, Esq., for the petitioner.

Bruce A. Low, Esq., for the respondent.

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MURDOCK

The Commissioner determined a deficiency in income taxes for the calendar year 1923 in the amount of $10,696.12. The petitioner has alleged that the Commissioner erred in failing to allow as a deduction the sum of $24,924.69, representing the amount of a debt ascertained to be worthless and charged off during the year 1923.

FINDINGS OF FACT.

The petitioner is an individual residing at Cincinnati, Ohio. During the period from 1894 to 1898 he made loans to a brother-in-law, C. B. Matthews, aggregating $28,313.26. During this same period this account was credited with $17,233.79, leaving a balance due of $11,079.47. The accrued interest due on the unpaid loans up to March 1, 1913, amounted to $13,845.22, making a total obligation as of that date in the amount of $24,924.69. The petitioner kept an account of these transactions in a book. In determining the deficiency the Commissioner disallowed the deduction of $24,924.69 claimed as a bad debt.

Some of the loans which the petitioner made to Matthews were evidenced by notes payable on demand dated July 2, 1894, and signed by C. B. Matthews. These notes were unsecured and did not bear the endorsement of any individual or corporation. Some of the amounts which Matthews owed the petitioner were the result of payments which the petitioner made as endorser on Matthews' notes. From December 8, 1897, to July 14, 1898, the petitioner paid out $3,676.02 in this way.

The amounts which the petitioner advanced to Matthews were intended as loans and not as gifts. Subsequent to 1898 Matthews never made any payment either on account of the principal or interest on these loans. The petitioner frequently requested Matthews to pay the amounts which were due, but he never instituted any suit against Matthews to collect the amounts due him. The petitioner never received anything on account of the principal or interest which Matthews owed him. Matthews' notes which the petitioner held were never renewed.

Matthews was a lawyer who practiced in Cincinnati, Ohio, up to the time of his death in April, 1920. He had considerable ability as a lawyer, had a number of good clients, and received substantial fees. He was a very poor business man, made unsuccessful investments trying to get rich quickly, and lived extravagantly and beyond his means. His intentions in regard to repaying the money which he owed the petitioner were good but remote.

Matthews had been attorney for a woman who was acting as guardian for her minor children. With his knowledge she used or misused money belonging to the children in such a way that a loss resulted. When these children came of age, they brought certain pressure to bear upon Matthews, and, as a result, about the year 1898, he assigned practically everything he had for the benefit of his creditors. Shortly thereafter, a mortgage on his home was foreclosed.

The inventory and appraisement of Matthews' estate filed July 9, 1920, showed gross assets of $8,005.23, plus debts owed the estate of an appraised value of $5,613.18. A supplemental inventory was filed November 4, 1920, including additional assets of an appraised value of $1,915.03. These inventories and appraisements included amounts received on Matthews' life insurance. All amounts received by the estate in excess of expenses and costs were paid to his widow as an allowance or exemption under the Ohio law. The final account in the estate was filed in July, 1925.

In December, 1923, the petitioner took up with his attorney the matter of the amount which Matthews had owed him and in turn the attorney took up the matter with the then administrator of Matthews' estate and filed with the administrator a proof of claim but was informed there was very little in the estate except a claim then being litigated. The petitioner was at all times familiar in a general way with Matthews' financial condition.

OPINION.

MURDOCK: The petitioner would have us hold that the Commissioner erred in disallowing a deduction of $24,924.69 which the petitioner contends represented a debt which he ascertained to be worthless and charged off during the taxable year 1923. There is no evidence in the record that the petitioner charged off this amount in the year 1923. It appears that the loans and certain credits were entered in his books, yet the books have not been offered in evidence to show the charge-off, neither has anyone testified that the books contained any charge-off. Furthermore, we are not satisfied from the evidence that the petitioner ascertained the debt to be worthless in the year 1923. The only thing which happened in the year 1923 was that in December of that year the petitioner consulted an attorney, and in turn his attorney consulted a man who had just been appointed administrator of the Matthews' estate, the previous administrator having died early in the year 1923. The administrator, as a witness, testified that he was appointed administrator on December 6, 1923, at about which time an attorney for the petitioner called him on the telephone and told him either that he had mailed a proof of claim for the petitioner or was about to do so, and asked the administrator what was left in the estate and what was the prospect of receiving anything on the claim, to which the administrator replied that there was very little in the estate except the possibility of realizing on a claim then in suit in the south, the amount to be realized on that claim being doubtful in amount. Subsequently, the administrator received $1,398.19 on this claim, which he added to $755.21, which was the balance in the bank account of the previous administrator. Small amounts of this money were used to pay costs and the balance was paid to Matthews' widow and the estate closed.

We do not think it is necessary to discuss other features of this case which adversely affect the petitioner's contention.

Judgment will be entered for the respondent.