*1336 Organization expenses of a corporation, including the amount paid by it for the sale of its capital stock, may not be deducted in computing its net income nor amortized and recovered by pro rata exhaustion deductions over the years of its corporate life.
*616 The respondent determined deficiencies in income tax for the years 1926 and 1927 in the amounts of $755.20 and $387, respectively, of which amounts there is in dispute approximately $296.84 for the year 1926 and $254.83 for the year 1927. The only errors assigned are the refusal of the respondent to allow as a deduction against income for the year 1926 the sum of $2,198.80 or any part thereof, claimed as an allowance for exhaustion and obsolescence of capital expenditures for the purchase and installation of certain copyrighted plans, specifications and methods for the establishment and conduct of a security loan business, and a refusal to allow as a deduction against income for the year 1927 the sum of $1,954.27 or any part thereof, claimed as a deductible allowance*1337 similar to that asserted in 1926.
The issue is simply whether or not the expenses of organization and installation of a company's system of doing business, including *617 cost of sale of its capital stock, may be amortized. The case is submitted on the pleadings and a stipulation of facts.
FINDINGS OF FACT.
The petitioner was incorporated under the laws of the State of Washington in March, 1923, and began business in 1924, its principal place of business being in Tacoma, Washington.
The authorized capital of petitioner as fixed by its articles of incorporation was and at all times has been and now is $200,000, divided into 2,000 shares of the par value of $100 each and its chartered term of existence was and is the period of 50 years from and after the date of the filing of such articles.
The organization of petitioner was promoted by the agents and representatives of a corporation known as the Surety Finance Corporation, hereinafter referred to as the California Company. Said California Company had originated and developed a system for the organization and development of businesses intended and designed to operate primarily in the loaning of money to wage earners*1338 and small borrowers upon personal endorsement, such businesses being organized to function somewhat after the manner of the well known Morris Plan Banks operating in the East, but said California Company claimed that its system had certain features different from and superior to those of any other companies. No organizations of such character were then operating or in existence in the State of Washington. The California Company had organized a large number of such institutions in other localities, which were represented to be of a very substantial and profitable character by reason of the system of operation provided by the California Company, and it was, at the time of the organization of the petitioner, engaged in organizing and installing substantially a dozen or more similar companies in other points in the State of Washington.
It was the policy and practice of the California Company in the organization of such institutions to have the same incorporated by local individuals, upon certain understandings and agreements, which in the instant case were embodied in the following proposition made by the California Company to petitioner:
The Surety Finance Corporation owns and*1339 controls certain plans, designs, forms, working sheets and other data especially adapted to the conduct and operation of business such as you will undertake. These plans, etc., are generally known as the "Universal Plan," and we make the following proposition.
(1) We will give you the full and exclusive use, for Pierce County, Washington, during your charter existence, of all these said plans, designs, forms, etc., and all other data under our control, necessary for the proper conduct of your business.
*618 (2) We will furnish competent instructors, to teach your employees how to properly handle the loan business of your character in all the details; such instructors to be furnished at our expense and to remain without cost to your company until your employees are competent to carry on the work.
(3) We will give you the supervision and advice, when requested and as hereinafter provided, of our executive and business departments, without expense to you, as follows: we will furnish you with bi-monthly audits, through our Auditing Department, for six months from the date you begin business, without expense to you, and thereafter, at your request, at the cost to us for*1340 such service.
Further, you shall furnish to us, for our Auditing Department, regular monthly reports, on our usual forms, of your business, and such reports will be carefully compared with other reports of your own and other companies under our organization and supervision, in order that we may be able to detect and remedy any lack of progress, by pointing out any errors or possible improvements in your operation of the system and working plans, also we will give you the benefit of any new ideas of betterment, which may come to us from time to time and offer increase of profit to companies under our plan.
(4) We will secure from the Secretary of State of the State of Washington, a charter for your company, at no expense to you.
(5) We will pay all attorney fees incurred in organization of your company; all advertising expense necessary for the stimulation of the loan demand, during a period of not to exceed six months following organization; such advertising to be both of direct and display character; we will pay all expense incident to the sale of your stock and, in fact, all the expense necessary for organizing and putting your company in proper running order, except the*1341 expense for supplies and tangible assets.
(6) In full remuneration for the above mentioned services and concessions, you shall constitute our president, F. C. Epperson as the fiscal agent for the sale of all the capital stock of your company and pay us, through him, 20% of the selling price of the stock, payable as and when stock is sold. We reserve the right to purchase and hold 10% of the capital stock in your company, and request your approval of our purpose in this regard.
When this proposition has been accepted by vote of your trustees, we will at once proceed to place the Surety Finance Company of Tacoma in operation, to sell the remainder of your stock and to carry out every agreement hereinbefore mentioned; and your acceptance of this proposition will authorize the treasurer of the company to proceed in accordance with the agreements outlined in this letter.
The petitioner duly accepted the foregoing proposal and it and the California Company thereupon proceeded to carry out the provisions relative to the organization of petitioner and the setting up of its business and installation of the system of handling such business controlled by the California Company. Such*1342 proceedings were in all respects as outlined in said proposal, except that the entire authorized issue of capital stock was not sold, and the petitioner thereafter settled its liability by payment to the California Company of the sum of $36,646.73, which settlement was arrived at between the *619 parties during the year 1925, and full payment of said sum of $36,646.73 was completed by the petitioner on or prior to March 23, 1926.
Of such sum of $36,646.73, paid by the petitioner to cover the cost of its organization and sale of its capital stock, 40 per cent thereof, or $14,658.69, fairly and reasonably represented the cost of selling petitioner's capital stock, and the balance, or 60 per cent, amounting to $21,988.04, covered the other cost of organization referred to, including the profits accruing to the California Company upon such transaction. The entire sum of $36,646.73 was paid by petitioner to the California Company in cash, and no part thereof represented current expense, nor was any part thereof claimed or deducted by petitioner as such current expense.
The petitioner is on the accrual basis.
In the determination of the deficiency herein appealed from, the*1343 respondent did not allow any portion of said organization expense of $36,646.73 as a deduction for either 1926 or 1927.
OPINION.
SEAWELL: The record shows, as is fully set forth in our findings of fact, that the petitioner expended prior to March 23, 1926, in the matter of its organization and the sale of its capital stock, the sum of $36,646.73. It is stipulated that $14,658.69 of said amount fairly and reasonably represents the cost of selling petitioner's capital stock and the balance, amounting to $21,988.04, covers the other cost of organization, including the profits accruing to the California Company upon such transaction. It is also shown by the record that the entire sum of $36,646.73 was paid by the petitioner to the California Company in cash, and no part thereof represents current expense nor was any part thereof claimed or deducted by petitioner as such current expense. It is further shown that in the determination of the deficiency herein the respondent did not allow any portion of said expense of $36,646.73 as a deduction from gross income for either 1926 or 1927.
The questions for our determination are whether either the cost ($14,658.69) of selling petitioner's*1344 capital stock or the other expense ($21,988.04) incurred in the matter of organizing and putting in operation the petitioner corporation or both such costs may be amortized.
Counsel for the petitioner in their brief state they can see no logical basis for a distinction in the method of treatment between the cost or expense of sale of capital stock and the other expense of organization of the petitioner, nor do we.
*620 The argument in behalf of the petitioner assumes that the decision of the court in (which reversed this Board on the disallowance by it of a deduction for exhaustion in the matter of organization expense), is correct and will be followed by us and that as there is no logical basis for treating differently the two items above set out, aggregating an organization expense of $36,646.73, both items or the full amount should be amortized over the life of the charter and recovered by pro rata exhaustion deductions over the 50-year period of petitioner's corporate life.
In *1345 , we held that the Revenue Act of 1918 does not authorize any deduction of the amounts paid by a corporation as commissions for the sale of its capital stock. In so holding, the Board adhered to its previous rulings in the appeal of , and . See also ; affirmed in part and reversed in part in ; certiorari denied, ; .
The Simmons Co. case, supra, was appealed and the decision of the Board therein affirmed, , and certiorari denied, .
We have carefully considered the opinion in the Hershey Mfg. Co. case, supra, and have the highest regard for the able court rendering the same, but, in view of the decisions and the reasons assigned therefor in the other cases cited herein, we are of the opinion that the principles applied therein are also applicable in the instant case and that the organization expenses, including*1346 the cost of sale of stock, are not, within the meaning of the Revenue law, either "ordinary and necessary expenses incurred in carrying on the business" of the petitioner nor a capital investment and we, therefore, hold that in computing petitioner's taxable net income for either of the years 1926 or 1927 it is not entitled to deduct from gross income aforesaid expenses nor amortize same.
Reviewed by the Board.
Judgment will be entered for the respondent.