Douty v. Commissioner

F. A. DOUTY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Douty v. Commissioner

Docket No. 13329.

United States Board of Tax Appeals

9 B.T.A. 218; 1927 BTA LEXIS 2646;

November 21, 1927, Promulgated

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">*2646 1. Claimed loss disallowed for lack of evidence.

2. Petitioner held entitled to credit claimed for dependents.

John A. Collier, Esq., for the petitioner.

George G. Witter, Esq., for the respondent.

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ARUNDELL

">*218 The respondent determined a deficiency in income tax in the amount of $426 for the calendar year 1924. Petitioner complains of respondent's disallowance of an alleged loss and the refusal of credit for dependents.

FINDINGS OF FACT.

Petitioner is an individual residing at Portland, Oreg.

On January 15, 1923, he and one Roy L. Davis entered into an agreement which recites in the preamble that:

We have this day entered into a co-partnership to engage in the buying, selling, training and exhibiting of show and pleasure horses and equipment for same, all upon the following basis.

The agreement provided that Davis should manage the business and receive for his services $300 per month; that petitioner should ">*219 supply the necessary funds for the operation of the business up to $20,000 and that the funds advanced were to be considered as a loan to the partnership upon which petitioner was to receive 8 per cent">*2647 interest; that any funds advanced by Davis were likewise to be considered loans and draw interest at 8 per cent, all interest to be paid out of profits; that horses and equipment purchased or owned by the partnership were to be held by the partners, in proportion to their interests, as security for the funds advanced; that four horses then owned by petitioner were to be managed and exhibited through the partnership but the horses to remain the property of petitioner, and that certain equipment turned over to the partnership should remain the property of the parties; that the life of the partnership should be continuous, but subject to termination by either party on 90 days' notice and that in the event of such termination any loss on the closing out of the business should fall on the party exercising the option to terminate.

Petitioner and Davis operated under this agreement until late in 1920, buying, training, and selling horses. The venture lost money from the start, and about November, 1923, petitioner decided to withdraw from it. A disagreement arose as to the division of the property, which was finally settled by Davis taking three or four horses. Petitioner took the remaining">*2648 horses and sold them early in 1924 for less than their cost. Petitioner kept no books showing the amount of his investment or loss in the venture.

During the year 1924 petitioner's two daughters, both of whom were under 18 years of age, and his mother were dependent on him for support.

OPINION.

ARUNDELL: Petitioner has established that for the year 1924 he is entitled to credits aggregating $1,200 for his two minor daughters and his mother, who were dependent on him for support. Section 216(d) Revenue Act of 1924.

As to the loss claimed to have resulted in 1924 from the sale of horses, the record is entirely devoid of evidence upon which a loss in any amount could be allowed. We do not know the amount of petitioner's investment, whether the losses were capital or operating losses, whether the venture was terminated in 1923 or 1924, the value of the horses taken over by petitioner or the price at which he sold them.

It was also contended by respondent that the loss in question was sustained in a transaction entered into for pleasure and not for profit. Evidence was offered on this point, but in view of petitioner's ">*220 failure to establish the amount of the">*2649 claimed loss, it need not be decided.

Judgment will be entered on 15 days' notice, under Rule 50.

Considered by STERNHAGEN and GREEN.