Bray & Kates Co. v. Commissioner

dissenting: I dissent on the second point on the basis of

the reasoning of the court in United States v. Semple do Go., decided by the United States Circuit Court of Appeals, Third Circuit, on February 27, 1926, 10 Fed. (2d) 1023.

*1317OPINION.

Upon consideration of the evidence relating to the deduction of additional compensation of officers for the taxable year, the Board is of the opinion that the evidence is insufficient to warrant the allowance of this deduction. The taxpayer bases its claim therefor upon an informal conference claimed to have been held at the home of one of its officers in February, 1917. The testimony as to what was. said on that occasion does not warrant the conclusion *1318that the directors definitely determined at that time to increase the salaries of the officers to $10,000 for the taxable year, or that their informal discussion of the matter of salaries was such as to create a liability of the corporation to pay the same. It appears that, on that occasion, when the business of the corporation was being informally discussed, one of the officers mentioned the matter of salaries and of their being warranted in increasing the same to $10,000 a year. It was also indicated by the others that no objection would be interposed to such action. No portion of-this additional salary was paid 'during the taxable year and no entry was made upon the books, or memorandum made thereof, by either of the officers. Nothing was said to the bookkeeper relative thereto. It was explained by one of the officers testifying that it was their custom never to inform the bookkeeper of the amount of their compensation lest he should disclose such information to persons outside of the organization. It appears that it had been the custom of the officers for several years to withdraw from time to time amounts of money which were charged to their account, and that at the end of the year entries were made crediting to their account any undrawn portion of their salaries. During the fiscal year ending July 31, 1911, the two officers did not, up to that time, withdraw any amount, in excess of their regular salary. Upon the adoption of the resolution on August 15, 1917, an entry was made as of July 31, 1917, crediting the officers with the additional compensation of $7,500 each, and this amount was at that time, or subsequently, paid to them.

Under these circumstances, the Board is of the opinion that the Commissioner correctly disallowed the additional compensation as a deduction for the taxable year.

The taxpayer contends that, under the provisions of the Revenue Act of 1917, the amount of excess-profits tax should be applied only against that portion of the taxable net income for the fiscal year ending July 31, 1917, as was earned during the first seven months thereof, and that the normal tax for that portion of the calendar year 1917 falling within the fiscal year ending July 31, 1917, should be computed upon the amount of income applicable to the first seven months of 1917, less the excess-profits tax for the same period. In other words, that the Commissioner should have computed the profits tax for seven months of 1917 upon seven-twelfths of the entire net income for the full fiscal year and, after deducting the profits tax so computed, that he should have computed the tax of 4 per cent upon seven-twelfths of the difference between the profits tax and seven-twelfths of the entire net income.

The Board has already decided this point adversely to the contention of the taxpayer. Appeal of F. J. Thompson, Inc., 1 B. T. A. *1319535; Appeal of Mesa Milling Go., 2 B. T. A. 770; Appeal of Phoenix Seed & Feed Co., 2 B. T. A. 909.

The deficiency for the fiscal yecw ending July SI, 1917, is $¡¡.,181.50. Order will he entered accordingly.