dissenting: I respectfully dissent from the majority opinion.
Paragraph 1 of the agreement which was entered into by the parties on May 23, 1945, explains that the $22,500 was paid to Bonder for his retirement from the partnership. Paragraph 1 of the agreement reads as follows :
1. The Party of the First Part agrees to retire from the partnership withdrawing his capital in the business which has been ascertained and computed to be ¡816,000.00 and which amount all parties hereto warrant and agree is the correct capital balance as of May 23, 1945. The partnership shall nevertheless continue in existence until June 30, 1945. The Parties of the Second Part agree to pay to the Party of the First Part the sum of $6,500.00 to induce the Party of the First Part to retire from the said partnership. This additional compensation is to be paid as follows: $5,200.00 by ETHEL SPERLING, $650.00 by PHILIP KRIEGER and $650.00 by RUBIN LUBARSKY out of the personal funds of each.
Of course, the $16,000 which was paid to Bonder under the foregoing provisions of the agreement was not deductible. It was clearly a payment for capital assets and must necessarily be capitalized. Petitioner does not contend otherwise. But the $6,500 payment which was made to Bonder, it seems to me, falls into a different category. The agreement states: “The Parties of the Second Part agree to pay to the Party of the First Part the sum of $6,500.00 to induce the Party of the First Part to retire from the said partnership.” Under the doctrine of A. King Aitkin et al., 12 B. T. A. 692, this $6,500 payment was not a capital expenditure but was deductible as a business expense. The Aitkin case contains the following finding of fact:
Dippy’s capital investment at the time of organization of Dippy and Aitkin was $200. Dippy had $1,515.97 to his credit on the books of the partnership on September 1, 1920. One-third of the undivided profits of the partnership from January 1, 1920, to September 1, 1920, amounted to $14,154.56. These three amounts were paid to Dippy. In addition to them, he was paid $5,000 by Aitkin and Kynett. This additional payment was not made for any assets, tangible or intangible, but was the amount demanded by Dippy before he would consent to an immediate dissolution of the partnership and was paid by the petitioners to protect themselves against the injury which they anticipated would result from a continuance of the partnership.
Upon these facts, the Board held that the $5,000 which was paid Dippy to get him out of the firm and which was not paid him as a part of the price for his capital interest in the partnership was deductible as a business expense by the two partners who paid it, namely, Aitkin and Kynett. In so holding, we said:
The payment which these petitioners made to protect themselves against the future actions of Dippy was directly connected with and proximately resulted from their business. No capital asset was acquired. The situation is not unlike that presented to the Supreme Court in Kornhauser v. United States, 276 U. S. 145; 48 S. C. 219; 6 Am. Fed. Tax. Rep. 7358, where expenses of defending an action for an accounting, instituted by a former partner, were allowed as a deduction from income as ordinary and necessary business expenses. We are of the opinion that the Commissioner erred in refusing to allow the deductions claimed.
In the instant case petitioner paid her proportionate part of the $6,500 which was paid to Bonder to induce him to retire from the firm. It seems to me that the amount which the petitioner thus paid is deductible as a business expense under the doctrine of the Aitkin case, supra. The majority opinion undertakes to distinguish the facts in the instant case from those which were present in the Aitkin case. However, I am unable to see where there is any substantial distinction in the facts of the two cases. I, therefore, dissent.
Tietjens and Withey, JJ., agree with this dissent.