DocketNumber： Docket No. 94869.
Citation Numbers： 42 B.T.A. 255, 1940 BTA LEXIS 1016
Judges： Opper
Filed Date： 6/28/1940
Status： Precedential
Modified Date： 11/21/2020
*1016 Payments received in the tax year by petitioner in liquidation of amounts due under a prior contract which in turn settled a dispute under an earlier employment agreement,
*255 This proceeding was brought for a redetermination of a deficiency in petitioner's income tax for the year 1933 in the sum of $7,915.33. The only questions for consideration are whether a sum received by petitioner in the taxable year constituted ordinary income or was the result of a "sale or exchange of a capital asset"; or, in the alternative, whether petitioner is justified in contending that disputed compensation under a contract entered into in 1928 constituted income at that time.
*256 Substantially all of the facts are stipulated. They are hereby found accordingly.
The stipulation shows that petitioner on July 30, 1914, entered into a contract for five years for management of the business of the Century Co., a publishing concern. This contract was extended in 1919 and in 1923. On October 2, 1925, the contract*1017 was further extended through 1937 and an agreement made fixing petitioner's compensation for his services at 20 percent of the annual net profits of the company.
Petitioner performed the services called for under the above contracts.
Petitioner was president of the company from 1916 to 1933, when the company consolidated with D. Appleton & Co. All of the common stock of the company was held in a voting trust, and from at least 1916 petitioner was a member of the company's board of trustees.
Prior to January 11, 1928, a dispute arose between petitioner and the company as to the method of computing the profits of the company in determining petitioner's compensation under the October 2, 1925, agreement. On June 11, 1928, petitioner and the company signed an agreement settling this dispute and clarifying various matters arising from the relationship of the parties. The contract provided,
Nothing herein contained shall in any manner affect the validity of the contract of October 2, 1925 between The Century Co. and W. Morgan Shuster.
* * *
The Company hereby agrees to pay to Shuster, in full settlement of any and all claims of any nature against it up to*1018 December 31, 1926 and/or any future claims based upon increases in values of copyrights, publishing rights, or other intangible assets, as determined by appraisal or otherwise, and in consideration of his relinquishment and waiver thereof as hereinbefore set forth, the sum of fifty thousand dollars ($50,000) at its convenience, within two years after the date of this agreement, with interest at six per centum from January 1, 1627, until paid and the further sum of ten thousand dollars ($10,000) per annum beginning with and including the calendar year 1927 until the termination of the contract dated October 2, 1925 between the Company and Shuster, payments of twenty-five hundred dollars ($2500) to be due quarterly on March 31, June 30, September 30, and December 31 in each year and to be charged and paid only out of the net earnings of the then current year after computing Shuster's compensation under his existing contract. Interest at the rate of 6% per annum shall be paid from the dates upon which these $2500 installments are due to the dates of actual payment.
* * *
* * * From January 1, 1927 the rights and obligations of the parties shall be governed by the agreement of October 2, 1925 as*1019 clarified and modified hereby.
*257 Up to 1933 payments aggregating the sum of $100,000 were made by the company to petitioner pursuant to the June 11, 1928, agreement, including the initial $50,000 payment and five annual payments of $10,000 each, which, despite the above quoted provisions of the agreement commenced in 1928.
While no provision was made in the June 11, 1928, agreement as to the effect of an insufficient amount of net earnings in any current year to make the annual $10,000 payment, the parties to the agreement intended the payments to be cumulative; that is, if the net earnings in any year were insufficient for the $10,000 payment to be made, the difference would be made up by the company out of the net earnings of later years.
Petitioner did not report as income in any one year the $150,000 provided for in the agreement, but reported the $50,000 payment and each of the annual $10,000 payments in his return for the year in which he received the respective payments.
Pursuant to the agreement of October 2, 1925, petitioner maintained a drawing account with the company, carried on its books as "W. Morgan Shuster, Compensation Account," and the charges*1020 to this account consisted of petitioner's drawings from the company; the credits being the percentages of profits to which petitioner was entitled under the agreement of October 2, 1925, as compensation for his services. After the agreement of June 11, 1928, the credits consisted of the percentage of profits, plus the amounts payable under the above quoted provisions of the June 11, 1928, contract. If, at the close of the year, the credits exceeded the charges, the company paid the excess to petitioner, or, if the charges exceeded the credits, the excess was treated as a loan and carried on the books of the company as "W. Morgan Shuster, Loan Account," on which interest was charged by the company until such time as petitioner repaid those amounts. During the years 1931 and 1932 petitioner overdrew his drawing account in the aggregate sum of $39,405.59, which was the total amount of the debits in that account as of January 1, 1933. Petitioner was not in a position to repay this amount to the company, and he voluntarily assigned to it the remaining amounts under the agreement of June 11, 1928, so that the company would have security for the overdrafts. He deposited the June 11, 1928, agreement*1021 with the company for that purpose.
On May 31, 1933, the Century Co. and "D. Appleton & Company, Inc." were consolidated into "D. Appleton & Century Co., Inc.," with petitioner president of the consolidated company. Prior to this consolidation and with a view to it, the Century Co.'s board of trustees at the meeting on May 8, 1933, took action with reference to the situation existing between petitioner and the Century Co. *258 whereby, by reason of his contract with them, he was to have management of the concern until 1937, and, under the agreement of June 11, 1928, was to receive $10,000 during each year from 1933 to 1937, inclusive.
The next succeeding paragraph contains our findings from the testimony the parties agreed petitioner would make if called as a witness.
Petitioner stated at this meeting that he wanted nothing for the October 2, 1925, agreement and that it should be canceled. With respect to the agreement of June 11, 1928, he stated that the company should pay him the remaining balance after offsetting the amount of $39,405.59, being the debit balance in his loan account, plus the amount of petitioner's drawings from the company from January 1, 1933, to*1022 the date of consolidation, against the $50,000, being the remaining installments under the June 11, 1928, agreement, plus the amount of compensation payable to him for the period January 1 to May 31, 1933.
The minutes of the special meeting of the board of trustees referred to "the desirability of settling, and evidencing the settlement of, Mr. Shuster's contracts and drawing account", and stated that the arrangement above recited was "to constitute a complete and final statement and settlement of all accounts between Mr. Shuster and the Company * * * and to be in full settlement of, and in lieu of all sums due him under his service contract of October 2, 1925, and of his settlement contract of June 11, 1928, and in full compensation for abrogating his said service contract."
Pursuant to the arrangement set out at the meeting of the board of trustees, the charges aggregating $39,405.59, representing petitioner's overdrafts for the years 1931 and 1932, together with the charge of $17,000, representing petitioner's drawings from the company from January 1, 1933, to the date of consolidation, or a total of $56,405.59, were offset against the credits of $50,000, being the balance*1023 as of January 1, 1933, under the agreement of June 11, 1928, and the credit of $10,416.67, being the compensation payable petitioner from January 1 to May 31, 1933, the date of consolidation, or a total of $60,416.67. The resulting credit balance of $4,011.08 was paid to petitioner by the company in 1933.
The entries made on the books of the company in 1933 to reflect the foregoing were entitled "Certificate of settlement of accounts of W. Morgan Shuster with the Century Company as of May 31, 1933."
Petitioner was on the cash receipts and disbursements basis.
In his income tax return for 1933, petitioner reported the sum of $10,416.67, being his compensation for the period January 1, 1933, to the date of consolidation, as ordinary income, and reported the *259 $50,000, being the balance due as of January 1, 1933, under the June 11, 1928, agreement, as capital gain. In his notice of deficiency respondent determined that the $50,000 constituted ordinary income and not capital gain.
OPINION.
OPPER: It will greatly simplify consideration of the contested issue if it is emphasized at the outset that the transaction whereby petitioner received the sums in controversy*1024 was one between himself, the original and continuing obligee, and his employer, the original and continuing obligor. Thus, cases which consider arrangements whereby income has been assigned to third persons and received by them are not controlling. Cf. ; ; ; . These payments came directly into the hands of petitioner, were never assigned by him to any one else, and were in payment of obligations incurred in his favor because of services rendered by him. Such vexed questions as the effect of assignments to others of future or past earnings, or of property rights based thereon, need, therefore, not concern us.
Similarly, the payments in question constituted a settlement by petitioner directly with his obligor. It follows that cases holding that the disposition of obligations to third persons are sales or exchanges thereof and the gains resulting are capital gains, are equally inapplicable. Cf. *1025 ; ; ; ; ; . Settlement with an obligor and payment by him of all or a part of the amount due under the obligation is not a sale or exchange thereof. ; .
The result is that whether or not petitioner's original claim for services rendered was converted into a capital asset by the 1928 contract, a point we need not decide, the payments received thereunder by petitioner from the obligor in 1933 were not the result of a sale or exchange and the capital gains provisions are inapplicable. Revenue Act of 1932, sec. 101(c)(1). The payments resulted in the receipt of ordinary income and, since petitioner was on a cash basis and the contract cost him nothing, the entire amount was income in the year of receipt.
This factor disposes also of petitioner's alternative contention that the*1026 payments were income in the year when they were contracted for. If petitioner had been on an accrual basis it may be that the determination in 1928 of the amount of his previously disputed *260 earnings and the creation of a definite obligation therefor might have constituted income in that year, even though payment was still dependent on the receipt of sufficient earnings by the corporation. But to conclude that the settlement of the dispute in 1928 with no accompanying cash payment made the petitioner taxable in that year on the cash receipts theory is to eliminate all distinction between that method and the accrual basis. (C.C.A., 2d Cir.). That petitioner himself recognized this is demonstrated by his failure to return as income any amount not received by him in cash. If more were needed, that alone would be sufficient to defeat his claim. ; certiorari denied, .