Hart-Wood Lumber Co. v. Commissioner

OPINION.

Lansdon:

The facts as to the first point in this proceeding are not in dispute. The petitioner paid the amounts of $12,535.96 and $9,859.39, respectively, in the years 1919 and 1920, to the Fidelity & Deposit Co. in discharge of its indemnifying bond to that concern on account of the Bergren and Sons contracts. In 1918, Bergren and Sons deeded to it property which had a fair market value of $7,300, which was to be applied on their obligation to the petitioner. The only issue here is whether such property was received, as suggested by the Commissioner, as security for the entire obligation of Bergren and Sons to the petitioner, or as a part payment of obligations known to be accrued at the time of transfer. The evidence convinces us that this payment was unconditional and that title passed as the result thereof. The petitioner concedes that its deduction from gross income for 1919 should be reduced by the amount of $7,300. On this point we are of the opinion that the petitioner is correct. It is entitled to deduct from its gross income in its income and profits-tax returns $12,535.96, less $7,300 for 1919, and $9,859.39 for 1920, as losses sustained during such years.

The evidence is conclusive that the petitioner expended the amount of $2,322.80 in 1919 in the construction of a building on land which it did not own, but which it occupied and used under an oral lease from month to month. This item was not included in any form in the petitioner’s income and profits-tax return for 1920, and so has not been allowed or disallowed by the Commissioner, either as an operating loss or as an ordinary business expense. The petitioner now pleads that,- as it had no lease on the land authorizing the use or occupancy thereof, the building, under the laws of California, became the property of the owner of the land, and its cost became a total loss to the petitioner at date of completion. It admits that it had some sort of oral lease or agreement with the owner of the land. In the absence of evidence, we are unable to determine the nature or terms of such agreement, or the rights of the petitioner thereunder, and we can not sustain its contention on this point.

In the year 1920, Eae owed the petitioner $9,999, and had no resources. He disappeared in May and sent the petitioner a message that he proposed to commit suicide. The petitioner held an insurance policy on the life of Eae taken out in March of 1920, in which it was designated as the beneficiary. The Commissioner does not dispute that Eae was unable to pay or that, as to him, the debt was worthless, but contends that the life insurance policy was security for such debt in the amount of $5,000, and that, to that extent, the debt was not worthless in the taxable year. The ultimate recovery of any part of the debt by the collection of the insurance policy depends on so many contingencies that it is hardly possible to regard such policy as security of any value. There may be a clause in the policy providing for cancellation in the event of suicide within twelve months of its issue. If death is not proved, seven years must elapse before it can be conclusively presumed. Calif. Code of Civil Procedure, 1923, sec. 1963, subdiv. 26. During such seven years the petitioner must keep the policy alive by the payment of annual premiums. Eae may not be dead or may reappear before the end of the seven-year period. We are of the opinion that the petitioner is entitled to deduct the entire amount of $9,999 from its gross income in its income and profits-tax returns for 1920.

Judgment will be entered on %0 days’ notice, under Rule 50.

Murdock concurs in the result only.