*1164OPINION.
James:The sole issue in this appeal is whether the taxpayer was in receipt of income in the years in question as a result of its compliance with the terms of the contract, fully set forth in the foregoing findings of fact, which it entered into with the South Haven Board of Trad'e.
In our opinion the taxpayer, under that contract, acquired $10,000 of capital assets, which were paid for by allocating 5 per cent of the taxpayer’s pay roll over the years in question to the agreed value thereof until such amounts totaled $10,000. In fact, the South Haven Board of Trade discharged 5 per cent of the taxpayer’s payroll cost by relieving the taxpayer of the necessity of paying an equivalent amount on account of capital assets theretofore transferred to it upon condition either that such pay roll expenditures would be made or that the taxpayer would pay for the assets direct. Under these circumstances, 5 per cent of the taxpayer’s pay-roll payments constitute capital expenditures and may not be deducted in determining net income.
Littleton, Smith, and Trussell dissenting.