dissenting: I am obliged.to dissent from the ruling of the majority. . The facts of the case show clearly that the payment were not made under the provisions of the original contract, *371but arose solely from the subsequent agreement. The record, also proves beyond any doubt tbat the motivating cause which resulted in this contract — the cause, except for which the contract of December 8, 1928, would never have come into existence — was the threat of a lawsuit with possibly damaging consequences to the business' of petitioner.
The fallacy in the reasoning of the majority opinion is the assumption, for which I can find no foundation in fact, that the payments made under the second contract were in part payment for the stock. Petitioner’s subsidiary received nothing in the way of a capital asset as a result of the payments. It already had the stock. President Harding was dead and his services as an associate editor were not available. The only thing received, .and it .was the thing purchased, was the assurance- that- petitioner’s subsidiary would not be injured in its business by a lawsuit. ' -
Had President Harding lived and the supplemental contract originally contemplated been executed, can it be doubted these annual payments would have constituted income to him, or, to state it conversely, in that event, could it successfully have been contended that such payments were in part, payment for the stock? A reading of the contract entirely negatives such a suggestion. The original contract contemplated two things — the purchase of the stock and the acquisition of the services of President Harding as an associate editor, the latter to be the subject of a supplemental agreement. President Harding died and the supplemental contract for services became impossible of execution. Thus, the original contract became a contract for the purchase of the stock only. The majority opinion says this contract was indivisible. It was nevertheless complete, although by subsequent events it became impossible of fulfillment in part. It seems to me to- be pure fiction to say that the' payments in question were part of the original purchase price of the stock.
The record, when read in its entirety, effectively refutes and explains the implications of the clause added at the insistence of-the attorney for the estate. The reason for such insistence on his part is obvious. By characterizing the payments as part of the purchase price of the stock, his client might avoid the income tax that would otherwise attach to the receipt of the payments.
Tax liability should be determined by considering the entire record, not on the basis of the single fact just alluded to and thus readily explained.
On the facts before us it is clear that the circumstance which compelled the petitioner’s subsidiary and officers to agree to the terms imposed by the settlement of December 8 was the threat of an attack on its standing and reputation in the community .of Marion. The *372majority opinion rightly suggests that the successful operation of a newspaper is singularly dependent upon the good will and favor of its readers and of the community. Particularly is this true when it is owned by nonresidents. We may well conclude that a suit brought by the widow of a President in his own home town, and the controversial issues raised thereby and exposed to public view for discussion and possible condemnation, might have injured severely the petitioner’s reputation and might have had a disastrous effect on its business. Petitioner was fully justified in considering the execution of the settlement agreement compulsory and the payments made thereunder to be necessary.
In Welch v. Helvering, 290 U. S. 111, Justice Cardozo said:
* * * Ordinary in this context does not mean that the payments must be habitual or normal in the sense that the same taxpayer will have to make them often. A lawsuit affecting the safety of a business may happen once in a lifetime. The counsel fees may be so heavy that repetition is unlikely. None the less, the expense is an ordinary one because we know from experience that payments for such a purpose, whether the amount is large or small, are the common and accepted means of defense against attack. Cf. Kornhauser v. United States, 276 U. S. 145, 72 L. ed. 505, 48 S. Ct. 219. * * *
In Helvering v. Community Bond & Mortgage Corporation, 74 Fed. (2d) 272, affirming 27 B. T. A. 480, the situation was quite similar to that in the case at bar. There, an expenditure was made to cancel an agreement with an agent whose activities were causing damage to the taxpayer’s reputation. In allowing the deduction the court said:
* * * It is not an unusual occurrence of business for a business enterprise, burdened with an unprofitable contract, to secure its cancellation by payment of money, and it is difficult to see why an expense thus incurred is not an “ ordinary and necessary expense according to the ways of conduct and forms of speech prevailing in the business world.” Welch v. Helvering [supra].
* * * The money paid in the instant case was to save the reputation of the respondent, to make possible its future earnings. * * * In the instant case, the taxpayer’s reputation was being injured by the conduct of its agent, and its primary motive in seeking the cancellation of the contract was to prevent the loss of earnings. Its contract with the agency proved to be unprofitable. This we think was an expenditure ordinary and necessary in carrying on the business, and deductible from the respondent’s gross income.
I am of the opinion that the money expended to prevent an event which would impair, or might even destroy, the petitioner’s most valuable asset, its reputation and standing in the community, is deductible as an ordinary and necessary expense. The Board has so held in numerous cases. See North American Investment Co., 24 B. T. A. 419; W. R. Hervey, 25 B. T. A. 1282, and cases therein cited, See also Louisiana Jockey Club, Inc., 13 B. T. A. 752.
Trammell agrees with this dissent.