Renier Music House, Inc. v. Commissioner , 15 B.T.A. 241 ( 1929 )

RENIER MUSIC HOUSE, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Renier Music House, Inc. v. Commissioner

Docket No. 8017.

United States Board of Tax Appeals

15 B.T.A. 241; 1929 BTA LEXIS 2886;

February 7, 1929, Promulgated

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1. Disallowance by respondent of a portion of the total salaries paid to officers, as a deduction from income, approved, for lack of evidence showing error.

2. An examination of petitioner's accounts in 1924 disclosed that customers' accounts in the subsidiary ledger exceeded, in the aggregate, the balance shown due from customers in the accounts receivable control account, by $9,892.61, and that this discrepancy arose prior to May 31, 1923. Respondent allocated this difference to the fiscal years 1919 to 1923, inclusive, in the proportions that the sales of each year bear to the total sales of the five-year period, and added the amount so allocated to the fiscal year 1919 to the income of that year. Respondent's determination approved for lack of evidence showing error.

3. Where the petitioner fails to prove facts from which we can determine the true deficiency by the installment sales method, the respondent's determination of the deficiency by another method must stand even though the facts establish the right of the petitioner to return income from installment sales by the installment sales method.

Robert A. Littleton, Esq., for the petitioner.

James A. O'Callaghan. Esq., for the respondent.

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TRAMMELL

In this proceeding the petitioner seeks a redetermination of the deficiency asserted by the respondent for the fiscal year ended May 31, 1919, in the amount of $3,431.69. The petitioner assigns as errors the respondent's actions (1) in failing to compute the income from installment sales in accordance with the installment sales method; (2) in disallowing $6,000 of the total deduction claimed on account of salaries paid to officers; (3) in adding to income the amount of $2,051.59, representing a portion of the difference between the aggregate debit balances of customers in subsidiary ledger and the amount shown due from customers by the accounts receivable control account, discovered in 1924.

FINDINGS OF FACT.

Petitioner, an Iowa corporation with its principal office at Dubuque, is engaged in the business of selling, at retail, pianos, phonographs, band instruments and supplies, together with their accessories. During the year in question, the petitioner regularly sold such articles of personal property for cash, notes, on open account, and on the installment plan. Approximately 20 per cent of the total sales were made for cash or on open account. A cash discount of about 7 per cent was usually allowed on cash sales.

At some time subsequent to May 31, 1918, a new record book was opened which contained an initial entry of the balances due at May 31, 1918, on each installment contract made prior to that date. This book contains further entries purporting to show payments made by purchasers on their installment contracts, during the fiscal year 1919, and the balances due on all outstanding installment contracts at May 31, 1919. Entries on this book show payments made by purchasers in the fiscal year 1919, applying against installment sales made in each year from 1913 to 1918, inclusive. This book, which is the only book of account placed in evidence, contains no data relative to returns and allowances which may have been made in the year in question.

At May 31, 1918, the unpaid balances on installment contracts made in the fiscal year 1918 and prior fiscal years, amounted in the aggregate to $30,999.35. At May 31, 1919, the end of the fiscal year in controversy, the unpaid balances on those same installment contracts amounted to $19,088.51.

The revenue agent who examined petitioner's books of account determined that petitioner's gross sales for the fiscal year 1919 amounted to $203,124.70. In the report of his examination, the revenue agent does not show any deduction for returns and allowances in arriving at gross sales of $203,124.70, but he included therein an item of $2,051.59, representing the portion of the difference between the aggregate of debit balances of customers in the subsidiary ledger and the amount shown due from customers by accounts receivable control account allocated to 1919. An auditor engaged by the petitioner in 1924 to examine its accounts, determined the gross sales for the year in question to be $186,479.24. In arriving at his figure for gross sales, the auditor deducted returns and allowances made during the year, but did not include the item of $2,051.59 referred to above. The cost of all sales for the fiscal year 1919 amounted to $109,217.06.

An undated report of the Special Advisory Committee of the Bureau of Internal Revenue to the respondent, in reference to the petitioner's tax liability for the year in controversy, contains the following statement:

Taxpayer was incorporated in the year 1914 under the laws of the State of Iowa, and is engaged in the sales of Musical merchandise on the cash, charge and installment basis.

In 1920 at a request from the Bureau for information as to how to keep books on the installment plan, they immediately made a bona fide but only partially successful attempt to transfer to an installment basis. The books reflected income on the accrual basis for the year under consideration, and the original return was filed accordingly.

An amended return was later filed on the installment basis, but income on the installment payments collected during the taxable year from sale of prior years was not included therein.

In brief dated October 5, 1927, it is admitted that income on the installment basis should be adjusted to include profit on collections of sales of prior years.

On August 6, 1924, petitioner filed an amended return for the year in question, in which net income purported to be computed in accordance with the installment sales method.

At the beginning of the year, the salaries authorized to be paid to petitioner's officers were as follows: M. E. Renier, president, $800 per annum; Irwin C. Renier, manager, and Ralph Renier, secretary, each $50 per week; and Alena M. Renier, treasurer, and Mathilda S. Renier, manager of the sheet music department and bookkeeper, each $35 per week. No salary was authorized to be paid to P. J. Renier, vice president.

The minutes of a special meeting of petitioner's board of directors, held July 1, 1918, contain the following:

Special meeting of the directors held at the offices of the corporation July 1st, 1918, at eight o'clock P.M. All of the directors present. On motion duly made, seconded and carried, it was decided to pay a special salary increase of $2,800 for the year 1918 only, payable January the 2nd, 1919, in the event the business for the seven months period shall exceed $75,000. As a reward for special effort to raise the standard of business of the corporation to the following now in the employment of the corporation, I. C. Renier, Manager $2,800.00, A. M. Renier, Treasurer $2,800, R. V. Renier, Secretary $2,800 and Mathilda S. Renier, Manager Sheet Music Department and bookkeeper $2,800.00. There being no further business, the meeting adjourned.

The authorization made by the foregoing resolution, and referred to therein as a "special salary increase," was the payment of a bonus to the persons indicated, for the seven months of the fiscal year in question falling within the calendar year 1918.

The minutes of a special meeting of petitioner's board of directors, held on January 2, 1919, contain the following:

Special meeting of Board of Directors held at offices of the corporation January 2, 1919, at eight o'clock P.M. All directors present. On motion duly made, seconded and carried, it was decided to increase the salaries of the following now in the employment of the corporation by the amount of $1,700 per annum. M. E. Renier, I. C. Renier, A. M. Renier, Mathilda S. Renier and R. V. Renier. Said increase to begin as of date of June 1st, 1918. There being no further business, the meeting adjourned.

The authorization made by this resolution was an increase in salaries, to be paid to the persons therein indicated, for the fiscal year 1919. The bonuses authorized by the resolution of July 1, 1918, and the increased salaries authorized by the resolution of January 2, 1919, were paid during the fiscal year in controversy. There was no change during the year in the duties of any officer from that which he or she had performed in the past, although pressure of business required that the officers give more hours of work daily to the business. Of the total salaries and bonuses paid to officers during the year, the respondent disallowed $6,000 as a deduction from income, on the ground that the salaries paid to officers were excessive and unreasonable.

In 1924 petitioner's books of account were audited by an accountant engaged for the purpose. The audit disclosed a difference of $9,892.51 between the aggregate debit balances of customers in the subsidiary ledger and the amount shown to be due from customers in the accounts receivable control account, the former being of the greater amount. The books were adjusted by increasing the accounts receivable control account to an amount equal to the aggregate debit balances of customers in the subsidiary ledger. The difference was apparently the result of accounting errors, and it arose at some time prior to May 31, 1923. The respondent, in accordance with the recommendation in the revenue agent's report, apportioned the difference to the five fiscal years 1919 to 1923, inclusive, in the same ratio that the sales of each year bore to the total sales of the five-year period, the amount of $2,051.59 being apportioned to the year in controversy, which respondent treated as additional income of that year.

OPINION.

TRAMMELL: On the three issues presented the respondent's determination must prevail, because, in each instance, the proof is insufficient to show error in those determinations.

Our finding of fact that petitioner was regularly engaged in the sale of personal property on the installment plan is sufficient to bring the petitioner within the provisions of section 212(d) of the Revenue Act of 1926, entitling it to have its income from installment sales determined in accordance with the installment sales method. ; ; ; ; . However, the petitioner has failed to establish such facts as will enable the Board to determine its income in accordance with the installment sales method, and the correct dificiency, if any, that is due. We are satisfied from the evidence that the net income reported in the original return of this petitioner for the year on appeal was computed on the accrual basis, and that the first attempt to return its income on the installment sales basis was made in the amended return filed on August 6, 1924. Clearly then, this petitioner is not entitled to the benefits of section 705(a)(2) of the Revenue Act of 1928, and if the net income is to be computed in accordance with the installment sales method, it must be in strict accord with the provisions of section 212(d) of the Revenue Act of 1926, that is, by including a proper proportion of all installment payments actually received during the year and which relate to sales effected in years prior to the change in basis for reporting income. ;. That such installment payments were received during the year is evident both from the entries on the installment sales record and from the reduction during the year in the outstanding installment contracts antedating June 1, 1918, the opening day of the fiscal year in controversy. The Books of account were not placed in evidence and we were not given any facts upon which to predicate a finding or conclusion as to what proportion of such installment payments is to be included in income. Without proof of the net income on the installment basis, we can not determine the true deficiency and we are not justified in disturbing the respondent's determination of net income on another basis. ; ;

Petitioner complains of respondent's action in disallowing, as a deduction, $6,000 of the total bonuses and salaries paid to its officers during the year. The petitioner contends that, based upon the amount of time the officers devoted to the business and the total volume of sales for the year, the salaries paid were not excessive or unreasonable. At the beginning of the taxable year, the total authorized salaries to officers amounted to $9,640. The total salaries and bonuses paid to officers during the year amounted to $29,340, which was more than three times those authorized at the beginning of the year and presumably paid for the preceding year. Of the total increase of $19,700, the respondent allowed $13,700 and disallowed $6,000. The only evidence offered by the petitioner in support of its contention that the salaries paid were not excessive or unreasonable is that the increased business necessitated longer working hours and considerable night work on the part of the officers. It would appear, however, that the respondent gave due consideration to that condition in allowing a substantial part of the total increase in salaries. Certainly the evidence is not sufficient to support a finding of error in respondent's action.

As pointed out in the findings of fact, there was discovered a discrepancy between the customer's ledger accounts and the amount shown by accounts receivable control account, amounting to $9,892.61. The petitioner's witness testified that he ascertained from the accounts that the discrepancies occurred some time prior to May 31, 1923, but admitted that he did not endeavor to ascertain in what year or years the amounts accumulated. He also admitted that it may have accumulated in any or all of the previous years. The respondent determined that $2,051.59 of this amount accrued during the fiscal year ending May 31, 1919. There has been nothing introduced into the record to show that this determination of the Commissioner was incorrect. The petitioner's witness admitted that the proper allocation might have been determined from the books and records of the petitioner, but that it would have required considerable time to make the determination. Since the petitioner has failed to show the proper amount that should be allocated to the fiscal year ending May 31, 1919, and has introduced no evidence to show that the Commissioner's determination is incorrect, that determination must be approved.

Judgment will be entered for the respondent.