J. S. Carroll Mercantile Co. v. Commissioner

OPINION.

Arundell :

No proof was proffered in support of the allegation that the Commissioner used improper comparatives in determining petitioner’s tax liability under sections 327 and 328. On this issue the Commissioner must therefore be affirmed.

Section 326 of the Revenue Act of 1918, specifically provides that invested capital does not include borrowed capital. Our problem then is to determine whether the $196,692.90 represented a loan to the corporation or a capital contribution at the time the notes theretofore given were canceled, on or about August 1, 1913. The only witness called states that on that date the obligation to pay the stockholders this sum for the property theretofore transferred to the corporation ceased and it was then agreed that this amount should be risked in the business as a part of the corporation’s capital. The fact that the so-called “ loan accounts ” were not closed out on the books we do not regard as conclusive for tax liability is not to be determined solely as a matter of bookkeeping. Baldwin Locomotive Works v. McCoach, 221 Fed. 59. Profits for each year were credited to these accounts and deposits were likewise entered, but it is interesting to note that the withdrawals never exceeded these amounts and never encroached on the original sums paid in in 1913, a fact that corroborates the testimony of the witness Bowers that this amount was not subject to withdrawal but was an amount invested in the business permanently. We are satisfied from the evidence that this is a fact, and consequently it should be included in petitioner’s invested capital. The evidence is lacking, however, which would warrant the inclusion in invested capital of the earnings and subsequent deposits credited to the individual accounts. These amounts were freely withdrawn from time to time, more or less at the will of the stockholders, and have all the earmarks of sums left with the petitioner solely as a matter of convenience and in no sense invested in the business.

Judgment will be entered on 15 days’ notice, under Bule 50.

Considered by Milliken and Murdock.