DocketNumber： Docket No. 11953.
Citation Numbers： 12 B.T.A. 716, 1928 BTA LEXIS 3475
Judges： Milliken
Filed Date： 6/20/1928
Status： Precedential
Modified Date： 11/21/2020
*3475 1. ADDITIONAL SALARY. - Where the president of a corporation was overpaid or overdrew his salary account $1,400 during the taxable period, and after the close of the taxable period this overpayment was canceled, the deduction is not allowable for the taxable period.
2. DEPRECIATION - INVESTED CAPITAL. - Claim for additional depreciation and increased invested capital determined.
3. COST OF GOODS. - Where respondent in the determination of the deficiency allowed a sum representing cost of goods as a deduction, and by affirmative plea avers error in so doing, the burden is upon him to prove the allowance to have been in error.
*716 This proceeding is for the redetermination of a deficiency in income and profits taxes of $3,793.12 for the 10-month period ending December 31, 1918. Petitioner alleges that the respondent erred (1) in disallowing a deduction of $1,400 paid by petitioner to its president, C. O. Henderson, as additional salary; (2) exclusion from invested capital of the sum of $2,044.31 which it is claimed is the excess value of machinery*3476 over that shown on its machinery account at date of incorporation, and (3) in disallowing depreciation claimed in the amount of $11,315.02, of which respondent allowed $4,799.28. At the hearing, the respondent amended his answer denying the allegations of the amended answer and in addition thereto alleged that the petitioner had overstated the cost of goods used in its operations to the extent of $40,000.51, and that its income should be increased by that amount.
FINDINGS OF FACT.
Petitioner is a corporation organized under the laws of New York in March, 1918, with its principal office and place of business at Columbus, Ohio. It is engaged in the manufacture and sale of automobile tires, and has a capital stock of $200,000, divided into shares of $100 par value each. The original name of petitioner was Bucyrus Tire & Rubber Co., Inc., which was subsequently changed to Henderson Tire & Rubber Co. Prior to the incorporation of the petitioner, there was in existence a partnership of the same name conducting the same character of business, which business and the entire assets thereof was taken over by the petitioner in exchange for its capital stock and other considerations. *3477 Among the assets obtained by petitioner were *717 certain machinery and equipment which cost $11,444.31. Petitioner, during the taxable period, was not the owner of a factory. In order to provide manufacturing facilities and working capital it entered into a contract with the Bucyrus Rubber Co., another corporation, for a period of one year beginning June 1, 1918, by which the petitioner leased from the Bucyrus Rubber Co. the latter's factory, machinery and equipment located in Bucyrus, Ohio, and as consideration therefor agreed to pay the lessor 25 cents per tire if the monthly production averaged 200 or more tires per day, and if less than 200, 30 cents per tire. Tubes were to be paid for at 5 cents each.
It was further provided in the contract that the lessor Bucyrus Rubber Co. was to provide for the use of the petitioner all material on hand and owned by it in said plant used in the manufacture of tires and tubes on June 1, 1918. It was agreed that an inventory thereof should be taken at cost and to this should be added the cash on hand and in bank of the lessor, which should be for the use of and constitute the working capital of the petitioner. Other clauses in*3478 the contract, not relevant or material to this controversy, provided for the expenditure, use and maintenance of the working capital. It was further provided that all such material should remain the property of the lessor and that petitioner should pay for all material used and all tires and tubes manufactured at the end of every month and that at the termination of the year petitioner should purchase and pay for all unused material then on hand. The contract also provided that petitioner should insure property for 80,000 for lessor's benefit.
In pursuance of this agreement, an inventory of material was taken June 1, 1918, showing a cost of $40,000,51, which, together with $14,291.27 in cash, constituted the working capital.
The accounts of petitioner were kept on the accrual basis, but contain frequent errors, one of which was that the item of $40,000.51 was originally debited to "Goodwill" but afterwards changed to conform to the facts.
The salary of C. O. Henderson, president of the petitioner, was fixed at $22,500 per annum by the board of directors, but during the taxable period he was overpaid or overdrew $1,400, which, after the termination of the taxable period, we*3479 canceled or forgiven him by informal agreement of the stockholders and directors, no meeting being held for that purpose.
In order to realize on its accounts receivable, petitioner entered into an arrangement with the Commercial Credit Co. to make advances thereon. This company required the individual guarantees of C. O. Henderson, president, and Geo. C. Riley, secretary of petitioner, before making such advances and for this service petitioner *718 agreed to pay Henderson and Riley 5 per cent of the amounts advanced by the Credit Co. Henderson was also the owner of the trade right to use a certain form of nonskid tire, which he permitted petitioner to use for 5 per cent of the net sales price thereof.
In the manufacture of tires, petitioner used patented tire-making machines under a royalty contract with Frank Seiberling, the owner thereof, and during the taxable period paid $3,745.02, and seeks deduction of this sum as depreciation. The contract for the use of the machines was not introduced in evidence.
During the taxable period petitioner used in the manufacture of tires certain moulds having the name Bucyrus and tread design cut in them. It was the purpose*3480 of petitioner to subsequently change its name from Bucyrus Tire & Rubber Co. to Henderson Tire & Rubber Co. and to move its plant to another location, which would necessitate a change in these moulds. Petitioner claims deduction of $3,938.50 for obsoleteness of these moulds, but it does not appear that the use of them was discontinued prior to December 31, 1918, nor that they were scrapped, or salvaged during the taxable period.
Petitioner had a contract with the Times Square Auto Supply Co., and in order to perform it, purchased special moulds with the agreement that the moulds were to become the property of the Times Square Auto Supply Co. by crediting 1 per cent of their shipments against the cost of the moulds until fully paid for. During the taxable period this amounted to $3,631.50, which is asked as a deduction on account of depreciation.
On April 25, 1919, the entire plant with its contents belonging to the Bucyrus Rubber Co. and the entire stock and material of the petitioner contained therein were destroyed by fire and after adjustment of the losses with the insurance companies, petitioner, in settlement, paid to the Bucyrus Rubber Co., $24,599.36. Respondent allowed*3481 the entire sum of $40,000.51 as a deduction for costs of goods manufactured and sold, but at the hearing, by amended answer, insists that this was error and that it should be restored to income. The evidence does not show how much of this material, if any, was used during the taxable period, or what part was used thereafter, or destroyed in the fire.
OPINION.
MILLIKEN: Petitioner assigns error in the disallowance by respondent of additional salary in the amount of $1,400 to its president. The stated salary of the president of the year in question was $22,500. The sum sought to be deducted is in addition thereto. During the year 1918, the president overdrew his salary to the extent of $1,400. Subsequent to December 31, 1918, petitioner caused an audit to be made of its books of account by a firm of accountants and *719 upon the said auditors discovering the overpayment, an understanding was reached with the president, secretary and the remaining director, that the overpayment to the president should be canceled and considered as additional salary for the year 1918 or as compensation for the use of a tire device or as satisfaction for the president having endorsed paper*3482 in connection with the transactions had with the Commercial Credit Co. The additional allowance claimed was not paid as salary during the year in question and no liability arose during such year calling for the same. Whether there was owing by petitioner during the year sums in satisfaction for the use of the tire device, or for the president of the petitioner having signed certain notes, we are unable to determine. The amounts were not proven and if they had been the same would not have represented salary payments as claimed. Respondent sustained.
At the organization of petitioner, certain machinery and equipment was acquired from the predecessor partnership. On the books of account the value of the same was recorded at $9,400. At the close of the year an inventory was taken at cost of the machinery and equipment thus acquired, which showed an undervaluation of $2,044.31. Petitioner should be allowed the total cost of the machinery and equipment acquired.
Relative to the claim for additional depreciation for moulds and for the cost of the Seiberling patented tire-making equipment, the evidence as concerns the former is that the petitioner, in the year 1918, determined*3483 that it would become necessary to discontinue the use of the tire moulds marked "Bucyrus" but whether the moulds were discarded in the year 1918 or in the subsequent year, is not proven. From the evidence of record it clearly appears that the moulds were used in the year 1919. Concerning the Seiberling equipment we were not supplied with the contract under which this equipment was used and apparently it represents a sum paid for the right to use the patented tire machine and as such the amounts expended would not constitute an allowance for depreciation.
Petitioner purchased moulds with the name of the Times Square Auto Supply Co. stamped on them and having the trade design cut in the metal. This purchase was made in order to obtain a contract with the company under an agreement that the moulds were gradually to become their property by a credit of 1 per cent against the billing of all their shipments until the 1 per cent equaled the cost or total investment petitioner had made in the equipment bearing such name and design. The amount of $3,631.50 was 1 per cent of the sales during 1918. We think this sum not deductible as depreciation, but it does represent an expense of doing*3484 business for the year and as such is deductible as an ordinary and necessary business expense.
*720 In the contract by which the petitioner leased the plant of the Bucyrus Rubber Co. it was provided that the lessor was to furnish to the petitioner all material on hand and owned by it in said plant used in the manufacture of tires and tubes as of June 1, 1918. An inventory of said material was taken on that date, which showed the cost of the material to be $40,000.51. The contract provided that all such material should remain the property of the lessor, and that petitioner should pay for all material it used at the end of each and every month, and at the termination of the lease in 1919 should pay for all unused material then on hand.
In the determination of the deficiency here at issue the respondent allowed as the cost of materials used in the manufacture of tires, the sum of $40,000.51 and by amended answer avers that he was in error in allowing such sum and asks that income for the period in question be increased by $40,000.51. This is an affirmative plea by the respondent and the burden is upon him to prove the same. While it is no doubt true that petitioner should*3485 be allowed as the cost of goods manufactured only such part of the materials that it used during the year 1918, and to take into inventory such part of the materials paid for or purchased, we are nevertheless left without proof as to the part used in the year 1918 or paid or purchased during the year. As a result we are not able to say that the allowance granted by the respondent should be added back to income. We were not informed as to the basis of the fire settlement in 1919 and accordingly can not use the same in the determination of this issue. For lack of evidence we can not sustain the affirmative plea of the respondent.