Bardwell v. Commissioner

*1062opinion;

It is the contention of the petitioner that on and after the day of the accident in September, 1921, the insurer owed him a debt in an unascertained amount, that the amount of this debt was, on the day a compromise was agreed upon, ascertained to be $3,207.50, and that, having ascertained that a portion of this debt w.as worth*1063less, he charged off $1,307.50 of it on April 25,1923, when he accepted $1,900 from the insurer in full payment of the debt. We note that the petitioner alleged that the policy of insurance was to indemnify him against loss, but the stipulation is silent as to the terms of the policy. Before we could decide this case in favor of the petitioner on the reasoning advanced by him, it might be necessary to inquire more fully into this question of loss in relation to the facts in the case. In addition we are unable to find from the evidence that the amount here sought to be deducted was ever “ charged on ” by the petitioner in his accounts, and therefore we must decide against him under the authority of our decision in the Appeal of Charles A. Collin, 1 B. T. A. 305.

However, admitting for the moment the soundness of the petitioner’s contention, he has failed’ to prove that in the taxable year he ascertained this alleged debt to be worthless. The receiver for the insurer was appointed in March, 1922. We do not know when the compromise was first agreed upon, nor when the petitioner’s attorney advised the acceptance of $1,900. This failure of proof is fatal to the petitioner’s claim. Appeal of Murchison National Bank, 1 B. T. A. 617; Appeal of Joseph E. Reid Estate, 2 B. T. A. 1198; Appeal of Anderson & Lind Mfg. Co., 2 B. T. A. 1297; Appeal of Masajiro Furuya, 4 B. T. A. 357; R. C. Middleton v. Commissioner, 5 B. T. A. 205. See also the Appeal of Alemite Die Casting & Manufacturing Co., 1 B. T. A. 548, in connection with charging off a debt upon the advice of an attorney.

It is agreed by all parties to this appeal that this loss is not deductible under section 214(a) (6) of the Revenue Act of 1921. Charles N. Burch v. Commissioner, 4 B. T. A. 604.

Judgment will'be entered for the Commissioner.