McDonnell v. Commissioner , 4 B.T.A. 49 ( 1926 )

APPEAL OF EDWARD J. McDONNELL.

McDonnell v. Commissioner

Docket No. 6194.

United States Board of Tax Appeals

4 B.T.A. 49; 1926 BTA LEXIS 2386;

April 22, 1926, Decided Submitted January 26, 1926.

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">*2386 Jacob Kromberg, C.P.A., for the taxpayer.

D. D. Shepard, Esq., for the Commissioner.

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">*49 Before GRAUPNER and TRAMMELL.

This is an appeal from the determination of a deficiency in income tax in the amount of $538.47 for the calendar year 1922. The deficiency arises from the ruling of the Commissioner that the taxpayer constructively received the amount of $5,525 in the year 1922, in addition to the salary actually paid to him in cash for that year.

FINDINGS OF FACT.

The taxpayer is an individual residing at White Plains, N.Y.

In 1922, and for many years prior thereto, he was employed by William Green, a corporation located at New York City. His salary for 1922 was $10,400, of which he actually drew in cash $4,475, the balance, $5,525, being credited to him on the books of the corporation. The withdrawal by the taxpayer of only a part of his salary was in accordance with a verbal agreement made in January, 1922, with William Green, the principal stockholder, that he would draw only an amount sufficient for his living expenses. The taxpayer owned one share of stock in this corporation of a total of 1,000 shares outstanding.

The balance sheet">*2387 of the William Green corporation as of December 31, 1922, showed a surplus of $207,021.91. Included in the assets was an item of $435,204.56, representing charges against the Leslie Judge Co., Inc., which that company was unable to pay.

In 1922, the taxpayer was secretary of the William Green corporation and treasurer of the Leslie Judge Co. William Green became ">*50 the sole owner of the Leslie Judge Co. in February, 1921, and, for the succeeding 10 months in 1921 and for the year 1922, the two corporations filed consolidated income-tax returns.

The only record that the taxpayer kept of his receipts and expenditures was a check book. His income-tax returns have been filed on a cash receipts and disbursements basis.

The amount of $5,525 was not available to the taxpayer in 1922 and did not constitute income to him in that year.

Order of redetermination will be entered on 15 days' notice, under Rule 50.