Roach v. Commissioner

*920 These proceedings were consolidated for hearing and decision and are for a redetermination*2001 of deficiencies in income taxes for the years 1922, 1923, 1924, 1925, and 1926 in the sums of $16,332.10, $17,487.23, $13,567.51, $7,312.34, and $7,669.26, respectively.

Petitioner alleges in effect as to all the years referred to in his several petitions that the respondent erred: (1) In refusing to allow the deduction from gross income of money alleged to have been expended by him for entertainment and travel expenses necessary in his business, and (2) in adding to petitioner's gross income for the said years respectively the amount of the maintenance and upkeep of a yacht which was owned and operated by the Hal E. Roach Studios.

Petitioner has withdrawn all the other grounds of error alleged in his petitions.

FINDINGS OF FACT.

During the years 1922, 1923, 1924, 1925, and 1926 Hal E. Roach was the president of Hal E. Roach Studios. In 1922 he owned all of the stock of the Hal E. Roach Studios. In the subsequent years 50 per cent of the stock was recorded in the company's books in his name and 50 per cent in that of his wife.

Hal E. Roach Studios was incorporated under the laws of California and in all the years involved in these proceedings was engaged in the production*2002 of motion pictures and photoplays. Part of the pictures it produced were marine pictures. These and its other productions were distributed by the Pathe Co. Late in the year 1921 and early in the year 1922 the corporation was producing a series of marine pictures called "The Vanity Fair Pictures." Previous to 1922 the corporation had owned a yacht called the Par, which it used for marine picture purposes. In the motion picture industry a boat used for marine picture production is used as a location point, as a means of transportation of actors, actresses and necessary properties, and for any convenient purpose in the industry connected with making marine pictures. The Par was a 65-foot cruising yacht and was operated by one man. In the latter part of 1921 or early part of 1922 the Par was burned and no part of it remained except *921 the engine. At that time it was difficult to obtain boats for picture purposes. Thereupon the corporation ordered a new yacht to be built which was called the Gypsy. The engine which had been in the Par was installed in the Gypsy, but was soon discovered to be too small and a new engine was acquired. The Gypsy*2003 was much larger than the Par. Its operation, maintenance and upkeep required a crew consisting of a captain, who also acted as engineer, and three other men. The Gypsy had living quarters for passengers. It was completed and put into commission in the early spring of 1922. Shortly after its completion the Pathe Co. refused to accept any more of the "Vanity Fair" series of marine pictures. Thereafter, during the year 1922 the Gyspy was used very little for marine picture purposes. The yacht's log records two days use for picture purposes during 1922, but during that year the yacht was always available for picture purposes. It was offered for sale within four months after its delivery to the Hal E. Roach Studios, but was not sold until 1926.

The Gypsy was kept in commission all the year. Its home port was Wilmington, Los Angeles Harbor. It was necessary to keep a full crew on it for the purposes of maintenance and upkeep. It did practically no cruising, but did run between its moorings in Los Angeles Harbor and its moorings in Avalon Harbor, Catalina Island, often staying at the latter place for several days. It cost little more to run the boat between Los*2004 Angeles Harbor and Avalon Harbor than to keep it at its moorings in Los Angeles Harbor. Much of the time during 1922 the Gypsy remained at its moorings and was not in immediate use for any purpose. It was, however, used much more for pleasure trips than for the purpose of picture making. Hal E. Roach and members of his family - especially his father and mother - made trips on the Gypsy from Los Angeles Harbor to Avalon Harbor, staying at the latter place often over week-ends and for days at a time, and occupying the yacht's living quarters. The directors, actors, and actresses and other persons connected with the producing company made much more personal use of the boat than did petitioner. At such times necessary supplies, such as food, were paid for personally and not by the corporation. The cost of maintenance and upkeep of the yacht was charged to and paid by the Hal E. Roach Studios.

In 1922 and also in the subsequent years in question Hal E. Roach personally owned a boat called the Maybe. This boat was 32 feet long, was operated by one man, and was of the speed-boat type. Hal E. Roach frequently made trips in it and fished from it.

During the years 1923, *2005 1924, 1925, and 1926 the yacht Gypsy was maintained and operated by the Hal E. Roach Studios in substantially *922 the same manner as during 1922. During these years also it was used more for pleasure purposes than for moving picture purposes. The yacht's log showed that in the first part of 1923, up to May 5, the Gypsy was undergoing repairs; that during 1923 it was used two days for making pictures and 54 days for purposes other than picture making; that it lay in the harbor at other locations than its moorings in Los Angeles Harbor 42 days; and that it was not used 129 days. The log does not show that the Gypsy was used during 1924 for picture making. For the year 1925 the log shows that the yacht was used 12 days for picture making purposes, 76 days for purposes other than picture making, and was not in use 259 days. Eighteen days of the year 1925 are unaccounted for on the log of the Gypsy. The yacht was sold in 1926. Its log went with it to the purchaser and was not available for evidence as to the yacht's use in 1926.

During the years 1923, 1924, and 1925 the Gypsy was occasionally used in Los Angeles Harbor for picture making purposes. Such*2006 use is not disclosed by the yacht's log. It was testified at the hearing that the log would not show such usage except when the yacht had left the harbor.

During 1922 the cost of maintenance and upkeep of the yacht amounted to the sum of $17,543.35. In this snm is included the maintenance and upkeep of a houseboat for the Gypsy, a barge, and four side boats, all of which were owned by the Hal E. Roach Studios for use in making marine pictures. In 1923 the cost of maintenance and upkeep of the Gypsy, together with its houseboat, barge and side boats was $27,398.63. In 1924 the cost was $26,314.99; in 1925, $21,333.62; and in 1926, in which year the yacht was sold, $16,370.61.

In its income-tax return for the year 1922 the Hal E. Roach Studios deducted from gross income the sum of $17,543.35, the cost of maintenance and upkeep of the Gypsy during said year, but the respondent disallowed such deduction, on the ground that the maintenance and upkeep was a personal expense of Hal E. Roach, the president of the corporation. The respondent increased petitioner's personal income for the year 1922 by the said amount of $17,543.35, on the ground that this amount was paid*2007 for his benefit by the Hal E. Roach Studios.

The respondent increased petitioner's personal income for 1923 by the sum of $26,839.48, on the ground that this amount, which was expended in the maintenance and upkeep of the yacht Gypsy, was expended by the Hal E. Roach Studios for the benefit of its president, petitioner herein. The amount of this increase was calculated by deducting from the sum of $27,398.63, the total expense of maintenance *923 and upkeep of the Gypsy during 1923, the sum of $559.15, which was the prorated cost of maintenance and upkeep for the number of days the Gypsy was used for picture making purposes as shown by its log.

The respondent added to the income reported by petitioner for 1924 the sum of $26,314.99, on the ground that this amount, which was the sum paid by the Hal E. Roach Studios for the maintenance and upkeep of the yacht Gypsy during that year, was expended by the corporation on behalf of and for the benefit of its president, Hal E. Roach.

The respondent added to the income reported by petitioner for the year 1925 the sum of $18,424.49, on the ground that this amount, which was expended by the Hal E. Roach Studios*2008 for the maintenance and upkeep of the yacht Gypsy during that year, was expended by the corporation on behalf of and for the benefit of its president, the petitioner. This amount was calculated by deducting from the sum of $21,333.62, the total expense of the yacht's maintenance and upkeep for the year, the prorated cost of maintenance and upkeep for the number of days the yacht was shown to have been used for picture purposes.

The respondent increased the income reported by petitioner for the year 1926 by the sum of $15,751.35, on the ground that this amount was expended by the Hal E. Roach Studios on behalf of and for the benefit of its president in the maintenance and upkeep of the yacht Gypsy. The amount was arrived at by deducting from the total cost of maintenance and upkeep during 1926 an estimated prorated allowance for the use of the yacht Gypsy for picture making purposes.

Petitioner was a member of a large number of clubs in Los Angeles and its vicinity and was also a member of clubs in other parts of the United States. These clubs included social clubs, country clubs, athletic clubs, yacht clubs, and clubs at which the petitioner played polo.

During*2009 the years 1922, 1923, 1924, 1925, and 1926 petitioner entertained at these clubs various persons connected with the photoplay industry and other persons, paying very considerable amounts of money for such entertainment. During the said years he also made several trips to the so-called key cities in the industry, among others New York. These trips varied in length of time from a few days to more than a month. On these trips petitioner also did a large amount of entertaining of persons associated with the motion picture industry, including persons connected with the Pathe Co., which distributed the pictures produced by the Hal E. Roach Studios. He kept no exact or detailed account of his expenditures on such trips.

*924 In his income-tax return for 1922 petitioner deducted the sum of $5,116.93 for club entertainment expenses. The deduction was disallowed by the respondent.

In his income-tax report for 1923 petitioner deducted from gross income the sum of $2,123.46 for club dues and entertainment expenses, the sum of $5,200 for general entertainment, and the sum of $3,000 which was an estimated expense of two trips to New York City. These deductions were disallowed*2010 by the respondent on the ground that club charges are personal expenses; that the expense of the trips to New York had not been substantiated, and that since his income was derived from the salary and dividends paid by a corporation, the amount spent for general entertainment did not represent ordinary and necessary expense incurred in the operation of his business.

In his income-tax report for 1924 petitioner claimed deductions of the sum of $3,163.42 for club entertainment expense and the sum of $7,800 for entertaining and traveling expenses. These deductions were disallowed by the respondent on the ground that it had not been shown that such expenses were business expenses and on the further ground that the expenses of entertainment were estimated and no records were available in substantiation of such estimate.

In his personal income-tax report for 1925 petitioner claimed deductions in the sum of $4,548.75 for entertainment expense and the sum of $7,800 for traveling and entertainment expenses. These deductions were disallowed by the respondent for the same reasons the similar deductions claimed in the taxpayer's report for 1924 were disallowed.

In his income-tax report*2011 for 1926 petitioner claimed deductions in the sum of $4,285.47 for entertaining expenses and in the sum of $9,000 for traveling and entertainment expenses. These deductions were disallowed by the respondent for the same reasons similar deductions in petitioner's income-tax report for 1924 were disallowed.

OPINION.

VAN FOSSAN: Respondent has disallowed as deductions from the income of Hal E. Roach Studios, a corporation, part of the expense paid by that company for operating and maintaining the yacht Gypsy, and has added such sums to the personal income of Hal E. Roach, the president of the corporation. The theory apparently underlying this action is that the expenditures were made by the corporation for the benefit of petitioner individually. In other words, respondent holds that petitioner constructively received income in the several years in the amounts elsewhere stated. We have taken occasion to say in other cases that the doctrine of constructive *925 receipt is one to be applied sparingly. It is only in unique circumstances and a clear case that the invoking of this doctrine will be approved. Here we do not find such a case.

The evidence is that the*2012 yacht was purchased by the corporation solely for business purposes and was so used when needed. It was also used by various persons for pleasure, among these being Roach's father, the treasurer of the company, the directors, actors, and actresses, and others in the company. It was used by these persons much more than by Roach. The pleasure afforded such persons was personal to them. In no sense can it be said to have been for the benefit of petitioner. Roach owned another boat in his personal capacity, one more suitable to his tastes, and used it much more frequently. If respondent's theory is correct, the additions to income should have been apportioned to all of the various persons who used the boat for pleasure. We do not believe the evidence justifies respondent's determination or the application of the doctrine of constructive receipt.

The second issue deals with deductions claimed by petitioner for expenditures alleged to have been made on behalf of the corporation of which he was president, but not reimbursed to him by the corporation.

It is conceivable that Congress might have imposed a tax on gross income, inequitable though it would be. It chose, however, to*2013 place the tax on net income and indicated how the same was to be determined. The successive statutes define "net income" as gross income less certain specified deductions. Obviously, there must be a direct relationship between gross income and the several allowable deductions. The deductions are personal to the taxpayer, and one taxpayer may not take deductions properly belonging to another. A similar rule should apply, we believe, where one spends money for the benefit of another and is not reimbursed.

Roach testified in effect that all of the money spent by him was in his capacity of president of Hal E. Roach Studios, a corporation. The parties thereafter occupied the position of debtor and creditor. The money should have been reimbursed to Roach by the corporation. The corporation would then have been in a position to claim the deduction as ordinary and necessary expenses. In this manner its net income might more correctly have been determined. This was not done, however. Though petitioner claims that he spent the money as president and for the benefit of the corporation, he was not reimbursed. The reason does not appear. He thereupon claimed the deductions on his*2014 individual return. In our opinion this he had no right to do. For his services as president, petitioner was paid a large salary. These were not, however, ordinary and *926 necessary expenses of earning his salary as president. They were, if at all, ordinary and necessary expenses of the corporation which he served. The fact that he and his wife owned all of the stock of the corporation is immaterial. The corporation was a separate taxable entity, chargeable with its own income and entitled to its own deductions. Nor is it important that the corporation, if it now reimbursed Roach, might be barred from claiming the deductions. This is a hardship of its own making.

We are of the opinion that petitioner is not entitled to the deductions claimed.

There is a further reason why, if otherwise allowable, we would be compelled to disallow the deductions claimed. Petitioner's claims are couched in terms of bare estimates and are supported by little satisfactory evidence.

Though the moving picture industry bears a reputation for lavish expenditures and has its own standards of necessity, this fact does not permit us to vary the tests of evidence applicable to the cases*2015 before us.

Roach testified that he was the sole entertainment committee of the Hal E. Roach Studios; that it was necessary in his business as president of the studios to be known as "a good fellow" and to secure publicity by joining clubs, by playing polo and by giving expensive entertainments. At the hearing there were received in evidence a large number of checks drawn to the order of the various clubs to which petitioner belonged. They were drawn during the several years in question. The total of these checks for the respective years was in no case the same as the total claimed by the petitioner as a deduction for club and entertainment expenses during said year. The clubs to the order of which the checks were drawn included polo clubs, golf clubs and other clubs of a varying character. The petitioner kept no account of his so-called business entertainment expenses, but all the amounts claimed were estimated. The checks included amounts paid for club initiation fees, the cost of lunches, dinners, and the entertainment of friends and persons connected with the moving picture industry, and at least one was for a contribution for taking a string of polo ponies to Philadelphia. *2016 The petitioner claims that, although personal pleasure was involved in the purposes for which he made these expenditures, yet they were at the same time made for the purposes of his business. He was unable to specify what amount was for business, and merely stated that a "large part" was "for business." He was asked if he could make any segregation of these expenditures as between business and personal pleasure and said that such a segregation would be only a "wild guess." See , as to evidence of this character.

*927 Petitioner's claim for deduction of alleged travel and entertainment expense while on trips to various "key" cities are founded in similar evidence. When he traveled the Hal E. Roach Studios furnished him with a round-trip ticket, but the cash he spent was, according to his testimony, drawn from his personal bank account. He claims that he spent for necessary expenses while traveling, including entertainment, $5,200 or more during each of the years in question. The sum of $9,000 was claimed as expenses of three trips to New York, aggregating a total of 66 days. These amounts were estimated by him and he*2017 testified that the estimates were based on the checks he had drawn while on said trips. He testified that the trips were taken for business but in no case did he state the specific nature of the business or its necessity. The money spent by him included the cost of entertainment of his friends and business associates, rides in aeroplanes, taking a group of friends from New York to Chicago to the Dempsey-Tunney prize fight, including the cost of a portion of a private car, trips to race tracks, theatre tickets and similar expenses. No evidence whatever was offered to show what part of these expenditures was personal and what part for necessary business. Any attempt on our part to segregate these estimated expenditures and to determine what, if any, part thereof was necessary expense of business would be sheerest speculation. The evidence is not sufficient for us to compute any amount or make even a "jury verdict" in petitioner's favor.

For the foregoing reasons we hold that the petitioner in these proceedings has failed to prove that the respondent erred in respect to this issue.

Judgment will be entered under Rule 50.