Appeal of Northwood

*702OPINION.

The taxpayer alleges errors by the Commissioner in the determination of deficiencies in income and profits tax for 1918 and 1919.

1. It is alleged that the Commissioner erred in disallowing the deduction from gross income of the year 1919 of $42',523, representing the amount which the District Court for the Northern District of West Virginia directed a jury to return against the taxpayer in a suit brought against it by the Macbeth-Evans Glass Co. The taxpayer contends that it erroneously deducted from gross income in its income-tax returns for 1916 and 1917 royalties accrued upon its books of account in and for those years, and that the amount of the verdict of the jury returned on November 26, 1919, was an accrued liability of 1919 and a proper deduction from gross income of that year. Under its theory of the case there was no accrual of royalties against it for the years 1916 and 1917, but there was an accrual of a liability against it in 1919 of $42,523, the amount of the verdict of a jury in a suit brought against it by the Macbeth-Evans Glass Co., which verdict matured in a judgment against it in 1920 for the amount of $42,523, and that when this judgment was settled by the payment by it to the Macbeth-Evans Glass Co. of $25,000 in 1921, it realized taxable income in 1921 of $17,523, being the difference between the judgment of the court and the compromise. The Commissioner’s position is that the royalties were properly accrued by the taxpayer in 1916 and 1917 and that deductions therefor were properly taken by the taxpayer in its income-tax returns for those years; that adjustment on account of the settlement should be made in 1921, when the liability was compromised for less than the reserve set up to meet the liability; that in no event was there an accrual of a liability constituting a legal deduction from gross income in 1919.

The taxpayer kept its books of account upon the accrual basis. In 1916 and 1917 it accrued the amount of the royalties which it was obligated to pay to the Macbeth-Evans Glass Co. in accordance with the terms of its contract with that company dated December 31, 1925. If it had paid the royalties to the licensor monthly as it had agreed to make payment there could be no question but that the amounts paid were legal deductions from gross income, Under its contract with the licensor, the taxpayer had no means of recovering back from the licensor the royalties which it had paid upon glass manufactured under the Letters Patent Reissue No. 13,766. The contract with the Macbeth-Evans Glass Co. became void on November 6, 1917, the date when the Circuit Court of Appeals for the Sixth Circuit affirmed the decision of the lower court in Macbeth-Evans *703Glass Co. v. General Electric Co., 246 Fed. 695; the royalties which the taxpayer accrued upon its books of account in 1916 and 1917 were legal deductions from the gross income of those years and of no other years. It is true that the facts in the instant case are materially different from those before the Supreme Court in United States v. Anderson, 269 U. S. 422. In that litigation it was not denied by the taxpayer that its method of keeping its accounts and setting up a reserve for munitions taxes reflected its true income for 1916, the year for which the reserve was set up, or that its amended return on that basis actually reflected its income and profits for that year. In the instant case the taxpayer contends that the reserve set up for royalties for the years 1916 and 1917 were not true accrued expenses of those years. This, however, is based upon hindsight and not upon foresight. The District Court for the Northern District of West Virginia, in the suit brought against the taxpayer by the Macbeth-Evans Glass Co., directed the jury to find for the plaintiff under the terms of the contract which the taxpayer had with the plaintiff, and which was dated December 15. So far as the litigation shows, the royalties were properly accrued upon the taxpayer’s books of account. The mere fact that the liability for the royalties and the liability under the judgment of the court was settled in 1921 for less than the amount of the royalties accrued affords no basis for the contention that the royalties did not accrue during the years 1916 and 1917. The fact that the jury returned a verdict against the taxpayer in 1919 for breach of its contract' did not constitute the amount of the verdict an accrued liability of that year. The taxpayer did not acquiesce in the verdict and indeed it did not become the decision of the court until 1921. The taxpayer appealed from such decision of the court and the litigation was finally settled in 1921 for an amount less than the basic judgment. In our opinion there was no accrual of a liability of any part of the amount of the verdict during the year 1919.

2. The taxpayer alleges that it erred in including in its gross income for the year 1919, $25,222.36, which represented the proceeds of a life insurance policy on the life of Harry Northwóod, its president, who died in 1919. This point must be decided in favor of the taxpayer upon the basis of United States v. Supplee-Biddle Hardware Co., 265 U. S. 189.

3. Although the taxpayer was organized in 1906, it never charged off any amount for depreciation of depreciable assets prior to 1918. By reason of this fact the Commissioner, in computing the taxpayer’s invested capital for 1918 and 1919, reduced the invested capital shown upon the return in the amount of $33,182.74 to cover alleged depreciation of plant for years prior to 1918. The taxpayer alleges *704error in this regard. The original records of the taxpayer for the years prior to 1918 have through accident, as indicated in the findings of fact, been destroyed. It appears, however, that it had been the practice of the taxpayer to charge most of the cost of improvements, renewals, replacements, and repairs to expense prior to 1918; that the taxpayer’s plant had been well maintained and extended, and it also appears that, for the four years prior to 1918, improvements costing $68,100.36 had been charged to expense. The cost of such improvements was in no wise reflected by the taxpayer’s capital account on its books. It is true that certain additions to the plant in the past had been capitalized, but it is equally true that the charging to capital of the cost of improvements was the exception rather than the rule. We conclude from the evidence before us that actual depreciation sustained during the years prior to 1918 had been more than offset by the cost of improvements, renewals, and replacements charged to expense. We are, therefore, of the opinion that the true earned surplus of the taxpayer at December 31, 1917, was not less than that shown by the taxpayer’s books of account so far as relates to depreciation of depreciable assets, and that the reduction of invested capital made by the Commissioner in the amount of $33,182.74 to care for depreciation not shown to have been charged off on the taxpayer’s books of account was in error.

4. With respect to the invested capital, the taxpayer also alleges that the Commissioner should include in invested capital for 1918 and 1919 $38,884.12 reserve for royalties shown upon its books of account at December 31, 1917, — this on the ground that the reserve was not a true liability and was simply a part of the taxpayer’s surplus. We have indicated above, however, that in our opinion the royalties were properly accrued for the years 1916 and 1917. We think, therefore, that the taxpayer is not entitled to the inclusion in its invested capital for 1918 and 1919 of the $38,884.12 in question.

5. The taxpayer alleges error on the part of the Commissioner in the computation of its invested capital for 1918 and 1919 by reason of the fact that he reduced the surplus at the beginning of each year by prorating the 1917 and 1918 income and profits tax amounting to $11,024.27 and $23,391.12, the prorated amounts being $6,040.70 and $9,885.08, respectively. This claim is based upon the decision of the Board in Appeal of Guarantee Construction Co., 2 B. T. A. 1145. This question has, however, been settled adversely to the taxpayer by section 1207 of the Revenue Act of 1926. Appeal of Russel Wheel & Foundry Co., 3 B. T. A. 1168.

Order of redetermination wül be entered on 15 days’ notice, under Rule 50.