Hazlett & Moss, Inc. v. Commissioner

*155OBINION.

The corporation seeks to deduct as salaries for the taxable period the amounts paid Pye prior to the incorporation, the amounts paid him subsequent to the incorporation and prior to January 1, 1920, and the profits for the period subsequently distributed to Pye and Moss.

The arrangement between Pye and Moss as to Pye’s compensation was made prior to the organization of the corporation and between individuals who were not, at the time the arrangement was made, stockholders of the corporation. It was merely an agreement to continue the arrangement which Pye had with the predecessor *156company. It was to become effective when the new company was organized. Such agreements are not binding upon a corporation until they are confirmed by the corporation. This corporation, so far as the corporate record discloses, never confirmed this arrangement. It did, however, pay Pye his drawing account in 1919 and distributed the net profits to Pye and Moss in February, 1920. This does not constitute an accrual, and the corporation may deduct only the amounts actually paid. Payments made under the arrangement above referred to and prior to the organization of the corporation on September 11, 1919, are not salaries or compensation paid by the taxpayer corporation, and we therefore hold that, of the $400 paid Pye for his services in the month of September, 1919, the corporation may deduct so much as represents the services rendered after September 11, and may deduct any amount actually paid him prior to January 1, 1920, and subsequent to September 31, 1919. We can find no justification for allowing the remainder of the amounts claimed as deductions for this taxable period.

The taxpayer was not a personal service corporation during the taxable period. The principal stockholder, owning over 99 per cent of the stock, produced only 20 per cent of the business and was not regularly engaged in the active conduct of its affairs.