Baker v. Commissioner , 17 B.T.A. 733 ( 1929 )

EDWARD H. BAKER, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Baker v. Commissioner

Docket No. 25080.

United States Board of Tax Appeals

17 B.T.A. 733; 1929 BTA LEXIS 2255;

September 30, 1929, Promulgated

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A loss sustained by the petitioner in 1922, held to be a "net loss" within the meaning of section 204 of the Revenue Act of 1921, and therefore deductible from net income for 1923.

Frank J. Maguire, Esq., for the petitioner.

Arthur Carnduff, Esq., and S. B. Anderson, Esq., for the respondent.

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TRAMMELL

In this proceeding the petitioner seeks the redetermination of a deficiency in income tax for the year 1923 in the amount of $1,321.64. The only issue presented is whether or not a loss suffered by the petitioner in 1922 is a net loss within the meaning of section 204 of the Revenue Act of 1921.

FINDINGS OF FACT.

The petitioner is an individual, residing at Buffalo, N.Y. In 1911, the petitioner organized the Edward H. Baker Corporation, and owns 98 per cent of its capital stock, the remaining 2 per cent being owned by his wife and sister-in-law. The business of this corporation is the distribution of automobiles. The different automobiles handled by it have included the Cole, Scripps-Booth, Maxwell, Chalmers and Chrysler, and it is now a distributor of the Oldsmobile. This was the first corporation organized by the petitioner. From the beginning he financed it entirely with his own funds, and has since continued it without obtaining outside capital.

In 1915 the petitioner and four of his associates promoted and financed the Peerless Oil & Gas Co., engaged in producing oil and dealing in leases in the Kansas oil fields. This corporation was one which had just been organized, and the organizers came to the petitioner for the promotion and financing of the enterprise. After investigation, the petitioner and his friends put in $50,000 of their own funds. As the corporation's business expanded and its financial needs increased, it was decided to offer its stock to the public, and an office was opened in New York City with the petitioner and one Page in charge of this branch of the corporation's activity. The stock was marketed to the public, and the corporation became a successful producing company. However, dissentions developed among the larger stockholders, and control of the corporation was sold to other interests in 1919.

After selling his interest in the Peerless Company, the petitioner organized another oil company, known as the Ontario Oil & Gas Co., having associated with him the same individuals who assisted him to promote the Peerless. As further financing was required, the petitioner interested other individuals in the enterprise. The company enjoyed a temporary success, and one substantial offer for its purchase by other interests was declined. Later its production failed and it went out of business, being finally liquidated in 1928.

Because of his two earlier ventures, the petitioner had attracted attention as a promoter in the oil business. He personally had under lease approximately 10,000 acres of potential oil lands in Kansas, which he was holding with the expectation that drilling on adjacent properties would lend a speculative value to his leases. Some of his friends desired to share in this speculative interest, and for that purpose he organized the Jack Rabbit Oil Co. The test wells which the petitioner anticipated would be drilled were not drilled, and the value of the properties held by this corporation was not proved. Later, the leases were abandoned and the corporation dissolved.

Prior to 1919 one Karge patented a flexible power transmission device. A friend of the petitioner, who was in the advertising business, came into contact with the patentee, and after investigating it, brought it to the petitioner for promotion. In 1919 the petitioner organized the Karge-Baker Corporation for the purpose of manufacturing steel power couplings, line shaft couplings and power transmission couplings of flexible type, under said patent. Funds were required to develop the proposition and to finance the corporation, and the petitioner furnished $43,000 for that purpose. The petitioner became president of the corporation and took charge of its financing, while Karge was vice president and had charge of the manufacturing operations. The business failed and the corporation went into bankruptcy in 1921.

In 1916 the petitioner acquired patents on a wire automobile wheel, and organized a corporation known as the Patent Securities Corporation to hold and exploit the patents. With a group of his friends, he then organized the National Wire Wheel Works, Inc., for the purpose of manufacturing automobile wire wheels under said patents held by the Patent Securities Corporation. This enterprise became a profitable one. The corporation obtained contracts to supply wire wheels to automobile concerns, and also exported many wheels to South America. The main office was at Geneva, N.Y., where the petitioner spent most of his time. Later, he opened a sales office at Detroit, in charge of a sales manager, and spent a substantial part of his time there. The petitioner and his friends furnished the funds to finance the operations of the manufacturing company. In 1920 the business was sold to the Maryland Pressed Steel Co. and the petitioner severed his connection with the enterprise.

In 1919 the petitioner acquired the assets of the Jones Scale Co. of Binghamton, N.Y. The business of this company was the manufacture of scales. The petitioner then negotiated a consolidation of the Jones Scale Co. with two other companies, namely, the Woodworth Manufacturing Co. of Niagara Falls, N.Y., which was engaged in the business of manufacturing automobile accessories, and the Emco Manufacturing Co. of Binghamton, N.Y., also engaged in the manufacture of automobile accessories. The petitioner consolidated these three corporations into the Consolidated Utilities Corporation, which thereafter carried on the manufacture of both automobile accessories and scales.

The first money required in financing the Consolidated Corporation was furnished by the petitioner. He then entered upon the promotion of the company, and interested others in it. Additional funds were needed by the company to carry on its operations, and those funds were supplied by the petitioner and his friends.

The petitioner was unable to complete the financing of the company without assistance, and it was decided to sell stock to the public. Accordingly, in November, 1920, a contract was entered into between the Consolidated Utilities Corporation and Shifflet, Cumber & Co., investment bankers, of Detroit, Mich., whereby the bankers agreed to sell, through the medium of a public offering, $1,000,000 of the Consolidated Corporation's stock. Under this contract, the bankers offered the stock to the public, but because they were engaged on another financing contract, they were unable to devote their efforts to the sale of the Consolidated Corporation's stock. The bankers advanced $25,000 on the contract to sell the stock, but this amount proved insufficient to finance the Consolidated Corporation's business, and the petitioner furnished from time to time the additional funds needed, on the understanding that the total amount so advanced would be returned to him from the proceeds of the sale of stock. The petitioner thus advanced funds to the corporation in the total amount of $98,254.86 between the dates of March 19, 1920, and September 26, 1921.

Because of a depression in the automobile industry, the business of the corporation proved unsuccessful. The corporation became bankrupt, and the estate was closed out in 1922. The petitioner never recovered any part of the $98,254.86 so loaned to the corporation.

The respondent allowed the petitioner to deduct said amount from his gross income for 1922 as a bad debt, but, although said amount exceeded petitioner's gross income for 1922, the respondent refused to treat the excess thereof as a net loss deductible from the petitioner's income for 1923, under section 204 of the Revenue Act of 1921.

The respondent refused to allow as a deduction from 1923 income any part of the petitioner's loss for 1922, determined the petitioner's net income for 1923 to be $20,513.60, and on that basis computed the deficiency here in controversy.

OPINION.

TRAMMELL: The single issue presented for decision here is whether the petitioner suffered a net loss in 1922, which is deductible from his net income for 1923, under the provisions of section 204 of the Revenue Act of 1921, which reads in pertinent part as follows:

SEC. 204. (a) That as used in this section the term "net loss" means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer * * *.

(b) If for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the Commissioner that any taxpayer has sustained a net loss, the amount thereof shall be deducted from the net income of the taxpayer for the succeeding taxable year; * * *

Thus, the issue here is resolved into the question whether the loss sustained by the petitioner in 1922 resulted from the operation of any trade or business regularly carried on by him.

In order to constitute a "net loss" within the meaning of the statute, it is not necessary that the taxpayer should sustain the loss in his principal business or vocation. The word "business" is qualified by the word "any." The taxpayer is entitled to this benefit where the loss is incurred in "any trade or business regularly carried on" by him. . And the term "business" is comprehensive. "Business" is anything "which occupies the time, attention, and labor of men for the purpose of a livelihood or profit." ; ; .

It seems clear from the facts which we have found hereinabove that, for more than 10 years prior to the taxable year, the petitioner had been engaged in the business, among other things, of organizing and/or promoting corporations, and that, as an incident of said business, he was required to help finance such corporations with his personal funds. The loss here in question resulted from the lending or advancing of money by the petitioner to the Consolidated Utilities Corporation, which was a corporation organized and promoted by the petitioner. The amount so advanced by the petitioner was to be repaid to him out of funds from the sale of the corporation's stock to the public, but the stock was not sold, the corporation went into bankruptcy, and the petitioner lost the amount of his loans. This loss, in our opinion, resulted from the operation of a trade or business regularly carried on by the petitioner, and is to be considered in computing a net loss within the meaning of the statute above quoted. ;

Reviewed by the Board.

Judgment will be entered under Rule 50.

SMITH dissents.