1928 BTA LEXIS 3359">*3359 Commissioner sustained in the disallowance of a claimed deduction.
12 B.T.A. 1374">*1374 The respondent determined deficiencies in the income tax of petitioners' decedent for the years 1920, 1921, and 1923, aggregating $17,813.06. The greater part of the deficiency has been found for the year 1920 and it is only for that year that petitioners seek a redetermination. The error assigned is that respondent disallowed a claimed bad debt deduction.
FINDINGS OF FACT.
James Shevlin died a resident of the Borough of Brooklyn, City and State of New York, on November 24, 1924.
12 B.T.A. 1374">*1375 About 1899 one Patrick H. Flynn obtained from the mayor and aldermen of Jersey City, N.J., a contract for the construction of waterworks in that municipality. Flynn obtained a number of associates in the performance of the contract, and the project became known as the Jersey City Water Enterprise. The decedent Shevlin loaned to or invested in this enterprise a large amount of money. About 1904 an action was instituted in the Supreme Court of1928 BTA LEXIS 3359">*3360 New York County by one P. Frank Keenan against Flynn and others, including the decedent, concerning the Jersey City Water Enterprise. This action continued until finally settled by an order entered in the Supreme Court of New York County on November 11, 1919. While this action was pending various other actions were instituted in the courts of New York, to which Flynn and his associates, including decedent, were made parties, concerning various matters in which they were interested.
In 1919 negotiations were conducted for the purpose of settling all of the litigations then pending. As a result of these negotiations a settlement was reached, and releases signed, whereby each party was to bear his own loss and proportionate share of expenses and counsel fees.
The decedent ascertained in 1919 that the amount of his loss, not including counsel fees, was $340,000. In 1920 he paid his counsel a fee of $10,000, and in his income-tax return for that year claimed a deduction of $350,000.
For the year 1919 decedent paid an original income tax of $635.79.
OPINION.
ARUNDELL: Neither any documentary or oral evidence was offered at the hearing, and our findings of fact are taken1928 BTA LEXIS 3359">*3361 from the allegations of the petition which are admitted by the respondent and from stipulations read into the record. The facts we have to work on are decidedly meagre. We do not know whether the money that decedent put into the Jersey City Enterprise was an investment or whether it was a loan. In the petition the item of $350,000 is sought to be deducted as a bad debt, while at the hearing counsel for the petitioners claimed it as a "loss of investment," stating that, "It was a contribution to a joint enterprise." Furthermore, it appears that the litigation which was compromised in 1919 involved other enterprises in which decedent was interested and we are not informed as to whether the amount he lost in those was a loss on an investment or a bad debt.
The theory back of the claim for a deduction from 1920 income, as stated by counsel for petitioners, is that the full amount was not ascertained until the counsel fee was agreed upon and paid in 1920. 12 B.T.A. 1374">*1376 The counsel fee paid was no part of the amount of the loss or bad debt ascertained in 1919. We know of no basis for carrying over from one year to the next a loss sustained or a bad debt ascertained to be worthless1928 BTA LEXIS 3359">*3362 in the earlier year, merely because expenses of litigation were not paid until later. The respondent's disallowance of the claimed bad debt deduction for 1920 is sustained.
Counsel for respondent conceded at the hearing that the $10,000 counsel fee paid in 1920 constitutes a proper deduction in determining 1920 income. Accordingly, it should be allowed.
Judgment will be entered under Rule 50.