dissenting: The purpose for which Anaheim was formed was to furnish water to shareholders. That purpose still persists although a substantial portion of Anaheim’s revenues is now obtained from oil. It is amply clear that the expenses which are here in issue were incurred in carrying out Anaheim’s business of furnishing water — they were actual expenses of the business and in our opinion they were ordinary and necessary expenses. To deny that they were ordinary and necessary, as the majority opinion does to the extent that they exceeded the amount charged to shareholders, seems to say that it is the source of the funds used to pay the expenses, rather than the character of the expenses themselves, which determines whether or not they are deductible. I think this is wrong.
This case is not the same as International Trading Co. v. Commissioner, 275 F. 2d 578, cited in the majority opinion. The Court there denied deduction for corporate expenditures on a residential property which “was not economically integrated with any other commercial property of the taxpayer” and was held “for the personal benefit of the stockholders and at the expense of the corporation.” In other words, the expenditures sought to be deducted were incurred in connection with property not used in the trade or business of the taxpayer or held for the production of income. That is not the case here, for here the claimed expenses were made for no other purpose than to carry on the taxpayer’s business of furnishing water.
This case is also different from Glendinning, McLeish & Co., 24 B.T.A. 518, affd. 61 F. 2d 950. In that case the taxpayer had a clear right to be reimbursed for the claimed expenditures. I can find no such right here.
And in Horace E. Podems, 24 T.C. 21, the taxpayer was an employee who claimed deductions for automobile expenses incurred in the business of his employer for which he was entitled to reimbursement, but which reimbursement he failed to claim. The expenditures were not incurred in the employee’s business, but were properly those of the employer and were disallowed. Coplon v. Commissioner, 277 F. 2d 534, affirming a Memorandum Opinion of this Court.
As pointed out in the majority opinion, Pomeroy Cooperative Grain Co., 31 T.C. 674, dealt with a problem of what constitutes gross income and not with what is an ordinary and necessary business expense. I do not think it is applicable here since respondent has specifically abandoned his contentions based on increased income.
In conclusion I point out that the only question urged by the parties is the deductibility or nondeductibility of the claimed expenses. Accordingly, that is the only question which should here be decided. We need not pass upon or evaluate theories not advanced by the parties or abandoned on brief, such as increasing the petitioner’s gross receipts by the amount of the water costs not charged to shareholders or the possibility that constructive dividends were paid.
I find no warrant in the internal revenue laws for disallowing the claimed expenses and respectfully dissent.
BRUCE, ForRester, and Drennen, A/., agree with this dissent.