Lloyd v. Commissioner

ERNEST E. LLOYD, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Lloyd v. Commissioner

Docket No. 40875.

United States Board of Tax Appeals

22 B.T.A. 674; 1931 BTA LEXIS 2082;

March 11, 1931, Promulgated

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The petitioner was president and general manager and controlling stockholder of a corporation. His duties brought him into direct contact with customers of the corporation and with manufacturers from whom the corporation purchased merchandise. One Wardrop circulated, among the trade, false and derogatory statements concerning the petitioner's reputation and character for integrity, reliability, and sobriety. In order to protect his own name and reputation, and to protect the corporation's business from possible injury, the petitioner in 1924 sued Wardrop for damages for slander, and in the same year judgment was rendered in favor of the petitioner. The judgment has never been paid. The petitioner in the year 1924 paid $2,810.65 for attorneys' fees and expenses in connection with said suit. Held, that said attorneys' fees and expenses are not proper deductions in computing the petitioner's net income.

Robert N. Miller, Esq., J. Robert Sherrod, Esq., and J. C. Ristine, Esq., for the petitioner.

W. Frank Gibbs, Esq., for the respondent.

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MARQUETTE

This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the year 1924 in the amount of $604.56. The deficiency arises from the disallowance by the respondent of a deduction of $2,810.65 claimed by the petitioner on his return on account of attorneys' fees and expenses paid in 1924 in prosecuting a suit for slander against one Wardrop. The case was submitted by the parties upon a stipulation of facts, from which we make the following findings of fact:

FINDINGS OF FACT.

The petitioner was during the year 1924, and had been for several years prior thereto, a resident of Chicago, Ill. During those years he was president and general manager of the E. E. Lloyd Paper Company, a corporation organized under the laws of Illinois, with offices in Chicago. The outstanding capital stock of the E. E. Lloyd Paper Company in 1924 consisted of 1,000 shares, which were owned and held as follows: E. E. Lloyd, petitioner, 600 shares; C. N. Lloyd, brother of the petitioner, 240 shares; W. G. Lloyd, no relation of the petitioner, 60 shares, and L. L. Gailor, 100 shares.

As part of his duties as president and general manager of the E. E. Lloyd Paper Company, the petitioner during the year 1924 had charge of buying and selling the merchandise handled by that company, and in that connection he came into direct contact with representatives of paper manufacturers and with customers to whom the E. E. Lloyd Paper Company sold goods. The petitioner has invested a large portion of his personal funds in the E. E. Lloyd Paper Company, and the salaries and profits received by him from the company represent a large part of his income.

In February, 1924, the petitioner, as president of the E. E. Lloyd Paper Company, attended the annual conventions of the American Pulp and Paper Association, and of the Jobbers and Merchants Association in New York City. At these conventions he was advised by friends, and by representatives of other companies, that one W.T.P. Wardrop of Boston, Mass., was circulating false statements and derogatory remarks concerning the petitioner's reputation and character for integrity, reliability, and sobriety, which were reaching customers and competitors of the petitioner, and that among these false statements and remarks were statements and remarks to the effect that the petitioner was neglecting and losing all of his business by reason of his habitual drunkenness.

The petitioner considered that prior to the year 1924 he had built up a valuable reputation in the wholesale paper trade in the E. E. Lloyd Paper Company, which company he had organized in the year 1919, and he felt that in order to protect that reputation and the business of the E. E. Lloyd Paper Company, he should take steps to prevent the said W.T.P. Wardrop from further circulating and publishing the false and derogatory statements he had been advised were being made against him, thereby insuring the continuance of the business of the E. E. Lloyd Paper Company on a profitable basis. Therefore, in the spring of 1924, the petitioner brought a suit for damages for slander against the said Wardrop in the Circuit Court of Suffolk County, Massachusetts. The case was tried in October, 1924, and judgment was rendered in favor of the petitioner. After securing said judgment against Wardrop the petitioner was unable to collect the same, as he found no property of the defendant Wardrop which was subject to execution. In fact, the petitioner knew before the suit was instituted that Wardrop had no property subject to execution, and the petitioner's sole purpose in bringing suit was to silence Wardrop.

In connection with said suit for slander against Wardrop the petitioner expended during the year 1924, $2,810.65 for attorneys' fees and expenses, which he deducted in computing his net income for that year. The respondent disallowed the deduction and determined a deficiency in tax in the amount of $604.56.

OPINION.

MARQUETTE: The question here presented is whether the amount of $2,810.65 paid by the petitioner for attorneys' fees and expenses of a suit against W. T. P. Wardrop is a proper deduction in computing the petitioner's net income for 1924. He contends that as the expenditures in question were incurred in connection with a lawsuit brought by him personally, but with the object of protecting the business prosperity of the corporation from which he derived a large portion of his income, as well as protecting his own reputation, the amounts so expended should be deemed business rather than personal expenses, and therefore deductible.

The pertinent statutes are section 204(a)(1) and 215(a)(1) of the Revenue Act of 1924, which provide that:

Sec. 214. (a) In computing net income there shall be allowed as deductions: (1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * *.

* * *

Sec. 215. (a) In computing net income no deduction shall in any case be allowed in respect of -

(1) Personal, living, or family expenses;

* * *

The petitioner, in support of his contention, cites several decisions of this Board, namely, ; ; ; , and . An examination of these decisions reveals that in each instance the deduction allowed was for an expense which not only grew out of, or proximately resulted from, the taxpayer's business, but was also solely attributable to that business, and to nothing else. In the present proceeding the litigation expenses were not incurred solely to protect the petitioner's business interests, but also to protect his own good name from slander and vilification. This fact, in our opinion, definitely distinguishes the petitioner's case form the decisions cited by him. Our decision in , is more nearly in point. There a relative of the president and principal stockholder of a corporation had caused domestic trouble for the president and had damaged his financial affairs, all of which reacted to the detriment of the corporation's business. In order to induce a cessation of the pernicious activities of the president's relative, the corporation furnished the money for a settlement, and claimed the amount as a deduction. In denying the claim, we said:

In final analysis the money and credit of the corporation were paid out for the purpose of setting disagreement in the family of the president of the company, who owned practically all of the stock. * * *. That the relative's pernicious activities, if continued, would probably have resulted in the ruin of the corporation's business does not, in our opinion, render the payments a loss to, or an ordinary and necessary business expense of the corporation, or deprive them of their essential character as personal expenditures of its president.

The facts in that case present a much stronger appeal for allowance of the deduction than do the facts now before us. In each proceeding the personal affairs of the corporation president were inter-woven with the business welfare of the corporation; but in , the corporation had already suffered damage, was faced with a strong probability of ruin if the trouble was not stopped, and from its own funds furnished the money for a settlement. In the present proceeding no loss or damage to petitioner's business interests, nor to the corporation which he headed, had occurred when the controverted expenditures were made, and whether any such loss ever would result from the slanderous statements concerning the petitioner was wholly conjectural. The personal element in the present proceeding was greater, and the element of injury to business interests was far less, than in the Forty-four Cigar Co. case. See also, .

The petitioner also relies upon . We think that case also is readily distinguishable upon the facts from this proceeding. There, the litigation was between business partners over an accounting of the partnership profits. It grew out of the business, was directly and solely connected with the business interests of the partners, and did not embrace the purely personal element which we find in the instant case. It is our opinion that the petitioner's litigation expense do not fall within the scope of section 214(a) of the statute, above quoted. We find no error in the determination complained of in this proceeding.

Judgment will be entered for the respondent.