Washer v. Commissioner , 12 B.T.A. 632 ( 1928 )

MONROE WASHER, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Washer v. Commissioner

Docket No. 10128.

United States Board of Tax Appeals

12 B.T.A. 632; 1928 BTA LEXIS 3486;

June 15, 1928, Promulgated

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1. Deduction claimed by the petitioner, president of a corporation, on account of a loss of the corporation for which he accepted responsibility and agreed to reimburse the corporation, denied for lack of evidence as to date of payment.

2. The entire loss sustained on a margin-trading account extending from 1921 to 1923 and claimed as a deduction in 1923 when paid, denied.

Harold R. Lhowe, Esq., for the petitioner.

T. M. Mather, Esq., for the respondent.

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LITTLETON

The Commissioner determined a deficiency in income tax of $3,334.82 for the calendar year 1923.

The petitioner complains (1) of the disallowance of an alleged loss in the amount of $27,790.32, growing out of transactions in connection with the business of John Thallon & Co., Inc., (2) of the disallowance of a portion of the losses resulting from a margin-trading account carried over a period beginning December, 1921, and finally closed and settled in July, 1923, and (3) the addition to income of the amount of $1,450 on account of dividends credited in the abovementioned margin account.

FINDINGS OF FACT.

During the year 1923, and for years prior thereto and since, the petitioner was and is president of John Thallon & Co., Inc., a New York corporation, and during 1923 the stockholdings of said corporation were as follows: Monroe Washer, 3,400 shares; Florence Washer, 1,000 shares; John Thallon, 500 shares; and David W. Frazer, 1,000 shares.

During the year here under consideration, John Thallon & Co., Inc., was engaged in the business of exporting and importing dairy products and provisions and throughout this year purchases, sales, and settlements for merchandise exported and imported were affected by fluctuations in the rates of foreign exchange. The corporation undertook to protect itself from losses due to fluctuations in exchange by hedging transactions and authorized the petitioner, its president, to purchase and sell foreign exchange in connection with each of its exporting and importing transactions. The corporation endeavored to buy and sell the exchange at the same rate that was used as the basis for determining the sale or purchase price in order to protect itself from possible losses. The petitioner as president of said corporation neglected during the year 1923 to make purchases and sales of exchange in such a manner as to protect the business of his corporation and when the accounts of the corporation for the year 1923 were being closed, at the end of the month of December, it was found that, due to the neglect of the petitioner to make the necessary hedging transactions in exchange, the corporation had suffered a loss of $27,790.32.

Facing this situation on December 31, 1923, the board of directors, including the petitioner, of said corporation held a formal meeting and adopted and entered upon their minutes resolutions as follows:

The meeting was called to order by Mr. Monroe Washer, the President of the Company. After the roll call, the following directors were found to be present:

MONROE WASHER,

JOHN THALLON,

DAVID W. FRAZER,

being all of the directors of the company.

The Secretary was then instructed to prepare and attach to the minutes of this meeting a waiver of notice to be subscribed by all of the directors of the company, which was done.

The Treasurer then reported the financial condition of the company as disclosed upon its books. This report consisted of the balance sheet of the company and profit and loss account for the calendar year 1923. It disclosed, among other things, that a loss had been sustained amounting to $27,790.32 by reason of failure, on the part of officers of the company, in properly securing contracts for foreign exchange in connection with the sales of merchandise made by the company, which causes a speculative element to enter into the business of the company.

The Secretary brought to the attention of the Board the fact that it was the policy of the company to avoid speculation in any form and that if the Board took no action with regard to this loss in exchange, a precedent would be established whereby the company might suffer serious losses in the future.

Monroe Washer, the President of the company, assumed full responsibility for this loss and stated that he was ready to do whatever the Board wished in connection therewith.

The following resolution was then proposed, seconded and unanimously adopted:

WHEREAS John Thallon & Co., Inc., in the year 1923 has suffered a loss of $27,790.32 by reason of failure on the part of Monroe Washer, its President, to secure promptly contracts for English exchange in connection with sales of merchandise made by the company, which has interjected into the business of this company a speculative element which this Board, at a previous meeting, decided was contrary to the policy of the business, and

WHEREAS in previous years, the company has given to the said President and other officers of the company, bonuses in addition to their salary for the extraordinary value of their services in such years, and

WHEREAS by reason of the loss in English exchange above mentioned, caused as aforesaid, the company has lost a considerable part of the value of the services of the said President, and has perhaps a cause of action against the said President, personally, and

WHEREAS said President has stated his willingness to abide by the resolution of this Board and do the things and acts mentioned here in consideration of the satisfaction of this claim and the continued employment by the company,

Now THEREFORE BE IT RESOLVED, that the said Monroe Washer, President of the Company, pay to this company the sum of $27,790.32 in reimbursement of the said loss and that the same be charged to his account, be and remain an indebtedness to the company until paid.

Mr. Monroe Washer, being present, agreed to perform the terms of the said resolution.

There being no further business before the meeting, the same was duly adjourned.

During the period beginning in December, 1921, and continuing until July 31, 1923, the petitioner carried for his own benefit, but in the name of his friend, George Crouch, a margin-trading account with Halle & Stieglitz, stock brokers, and traded in stocks, and securities. Crouch did all of the actual trading while the petitioner put up all the margins. Petitioner had little knowledge of the trades made or of the net results thereof until in July, 1923, he desired to recover certain securities which he had placed with the brokers to cover the necessary margins and as of the close of July, 1923, the brokers rendered to the petitioner a complete account of all transactions, charges, and credits covering the whole period from December, 1921, to July, 1923, inclusive. The net result of all these transactions, including all debits and credits and the return to the petitioner of 100 shares of a stock designated as smelters and ten $1,000 bonds designated as Queensland 7s, showed a net loss of $15,165.72, and the petitioner on July, 31, 1923, paid to the said brokers the amount of said loss and closed the account. Running through this broker's account during the years 1922 and 1923 there appears a number of items designated as interest debited to the account and a number of items designated as interest and dividends credited to the account. The interest items charged to the account during the year 1923 aggregated $1,311.31. The interest and dividend credit items were one item of interest $350, and three items of dividends aggregating $1,100.

The Commissioner treated the last above-named credit items of interest and dividends aggregating $1,450 as dividend income received by the petitioner and increased his gross income from dividends by that amount.

In making his individual income-tax return for the year 1923, the petitioner reported a salary of $25,000 received from John Thallon & Co., Inc., against which he offset the loss on exchange transactions in the amount of $27,790.32. He also reported gross income from dividends in the amount of $20,400 and gross income from a stock-selling transaction, independent of the aforementioned broker's account, in the amount of $2,080.50, which he deducted from the total loss paid on the broker's account, thus showing loss on stock transactions in the amount of $13,085.22. He reported deductions of interest paid in the amount of $342.74, and taxes paid in the amount of $10.92, showing a net income of $4,170.80. On or about April 28, 1925, a deputy collector made an amended return for the petitioner for the year 1923, in which he set down gross income from salary, $25,000; income from dividends on stock of domestic corporations, $21,850; from the broker's account the deputy segregated an item of loss on stock transaction accruing June 2, 1922, in the amount of $3,103, and another loss accruing on March 2, 1923, in the amount of $2,344.50, and reported a net loss from the brokers' account in the amount of $5,44m.50. The deputy also showed in Schedule D capital net gain from sale of stocks acquired in 1920 in the amount of $2,080.50. The deputy further increased the interest deduction claimed by the petitioner by the amount of interest charges debited to the brokers' account under 1923 dates.

OPINION

LITTLETON: The first question is whether petitioner is entitled to a deduction of $27,790.32 on account of certain losses sustained by a corporation of which he was president. The record shows that these losses were suffered by the corporation in 1923 through the failure of petitioner to perform certain duties imposed upon him as an officer of the corporation; that in 1923 petitioner accepted responsibility for these losses and agreed to do whatever the board of directors wished in connection therewith; and that in 1923 the board of directors passed a resolution to the effect that petitioner should reimburse the corporation for these losses, that the amount in question should be charged to his account and remain an indebtedness to the corporation until paid. Petitioner was present when the foregoing resolution was passed and agreed to comply with its terms. The record is silent as to when this amount was paid, if at all. The only information we have as to the basis on which the petitioner kept his books is the testimony of petitioner's bookkeeper, who stated that he thought they were kept on the cash basis. The Commissioner disallowed any deduction in 1923 on account of these losses, and upon the record as made we are unable to say that this action was erroneous.

The next issue relates to a margin-trading account conducted by a broker on behalf of the petitioner from December, 1921, to and including July, 1923. During this period purchases and sales were being made, but apparently petitioner did not know until July, 1923, whether he had been making profits or sustaining losses on the various transactions which had been carried out for him. While these dealings were conducted through a friend of the petitioner, the account was carried on the brokers' books in the name of the petitioner. In some instances, collateral was put up while in others it was not. In 1923, petitioner was notified that as a result of these transactions from 1921 to 1923, he was indebted to the brokers to the extent of $15,165.72, which amount petitioner accordingly paid, and now claims the entire amount as a deduction on his 1923 return. The Commissioner allowed only a part of this loss as a deduction in 1923. Whether petitioner's books were kept on cash or accrual basis, we can not hold that the results of the operations from 1921 to 1923 may be accounted for in 1923 when the petitioner decided to discontinue his speculative operations. The statute provides that "net income shall be computed upon the basis of the taxpayer's annual accounting period" and the accounting period adopted by the petitioner was a calendar year ending December 31. The schedule of securities bought and sold shows that at least during 1922 and 1923 there were closed transactions with respect to various securities which would afford a basis for reporting income or claiming a deduction on the petitioner's return for these accounting periods. The fact that the petitioner's friend and the brokers did not advise the petitioner of the status of these operations until the petitioner decided to end these speculative ventures does not alter the fact that the transactions were being carried out on behalf of the petitioner by his agent, and that the profits which were realized and losses which were sustained, were profits and losses of the petitioner and not those of some one else. The Commissioner allowed a part of the losses in question in 1922 and a part in 1923. The record does not show that the amount allowed for 1923 was erroneous and, accordingly, this action is sustained.

Reviewed by the Board.

Judgment will be entered for the respondent.