J. L. Kelso Co. v. Commissioner

OPINION.

Lansdon:

In this appeal the taxpayer asserts that the Commissioner is in error in denying its claim for classification as a personal-service corporation as defined in section 200 of the Revenue Act of 1918. In support of its contention, the taxpayer avers that its income is primarily ascribable to the activities of its principal stockholders ; that such principal stockholders are themselves regularly engaged in the active conduct of its affairs, and that neither invested nor borrowed capital is a material income-producing factor.

The evidence adduced at the hearing proves that the principal stockholders are themselves regularly engaged in the active conduct of the affairs of the taxpayer. It is for the Board to determine, therefore, whether the income of the taxpayer may be ascribed primarily to such activities, and whether capital, either invested or borrowed, is an income-producing factor.

It is obvious that the business of conducting a storage warehouse can not be carried on without a warehouse. The taxpayer owns no such facility, but conducts its operations in a building which it leases from the Eastern Steamship Company and for which it pays a rental of about $1,000 per month. The taxpayer’s counsel cited the Appeal of Bryant & Stratton Commercial School, Inc., 1 B. T. A. 32, in the course of his argument, and contended that in the use of leased premises there is a direct parallel between that casé and the instant appeal.

The Board is of the opinion that there is a very clearly marked distinction between the uses of capital by the Bryant & Stratton School and this taxpayer. Instruction is the principal service rendered by a school. Desks, maps, books, and even buildings are incidental, not essential. It was once said that Mark Hopkins on one end of a log in the woods and a student on the other end constituted a university. The building used by the taxpayer in the instant appeal is not a mere incident in its business, but is a necessary facility without which its operations are impossible. That building is used by virtue of a lease, and the leasehold is capital.

Several features of the business of the taxpayer clearly indicate the use of capital as a prerequisite to its operations, and therefore material in the production of its income. There is a weekly pay roll of more than $1,000 that has to be met. There are advances to pay freight bills and other charges against goods consigned for storage. There are insurance and operating expenses. The taxpayer asserts that all these payments are made out of current income, but the record does not sustain this contention. The balance sheets of the taxpayer for the years 1919,1920, and 1921 are in evidence and indicate a paid-in capital and surplus of something like $30,000, with only a very small investment in fixed assets. The office equipment and hand trucks which constitute the whole of the taxpayers capital investments in tangible property do not exceed $5,000 in value. It is evident, therefore, that liquid invested capital in excess of $25,000 is available for business operations at all times.

The evidence shows that the average monthly receipts of the taxpayer for the three years in question exceeded $12,500, and that about one-half of such receipts was paid in advance for periods ranging .from ten to fifteen days. Money received for services to be rendered in the future is instantly available for business operations requiring liquid capital. This taxpayer had the use, without interest, of several thousands of dollars of its customers’ money at all times. Such cash payments for services to be rendered in the future, if used in business operations, are borrowed capital.

In the light of all the evidence the Board is of the opinion that capital is a material-income producing factor in this taxpayer’s business, and it follows, therefore, that the principal stockholders are not primarily responsible for the income. Having failed to satisfy two essential requirements for' personal-service classification, the taxpayer must be denied the relief prayed for in its petition.