1929 BTA LEXIS 2136">*2136 1. Alva Adams, deceased, in his return for 1920 reported income as dividends, while on the books of a partnership that paid that amount of money, it was designated as rent. The Commissioner, having concluded that such amount had not been included in said return, added the same, together with other items to gross income, and determined a deficiency. Held that said amount having been once included the Commissioner erred in adding it again.
2. Held, further, that under the circumstances of this case, the amount in controversy was correctly returned as a dividend from a corporation, although in the bookkeeping it never got on the books of the corporation, and no formal declaration of dividend was made.
17 B.T.A. 1324">*1325 This proceeding is for the redetermination of a deficiency in income tax for the year 1920 in the amount of $736.38.
It was alleged in the petition that the deficiency was based on an error made by the Commissioner in adding to gross income of Alva Adams, deceased, for the year 1920, $2,118.40 received by him as a dividend from the Holmes Hardware Co.1929 BTA LEXIS 2136">*2137 , and not included in his return for that year.
The answer of respondent admitted the said allegations; that is, that the deficiency arose as stated. At the hearing counsel for the respondent called attention to the status of the pleadings and asked to amend his answer so that in effect the admission would be that the deficiency asserted arose only in part as stated in the petition. That amendment was received. Petitioner also was allowed an amendment to the effect that in fact the item of $2,118.40 under the designation of dividend, presumably from the Holmes Realty Co., had been included in the return for 1920; and that the computation of the Commissioner had again included the same item as dividend from the Holmes Hardware Co.; and, further, that said item should never have been included in the return at all, as it never was income to the decedent, and prayed that the Board so decide and hold that an overpayment of tax had been made for the year 1920.
The only question at issue in this proceeding is in respect to the one item mentioned, first, to determine as a fact, whether or not that item was included in gross income by the decedent in his return for 1920, and hence should1929 BTA LEXIS 2136">*2138 not be again included, though perhaps erroneously designated as rent instead of dividend; and second, whether or not the decedent erred in putting it into gross income at all if in fact he did include it, regardless of its designation, and if so, whether there was an overpayment of tax.
FINDINGS OF FACT.
The petitioner is the duly qualified and acting executor of the estate of Alva Adams, deceased, and resides in Pueblo, Colo.
The Holmes Hardware Co. is, and was in 1920, a partnership composed of George Holmes and Alva Adams, and engaged in the hardware business in Pueblo. The Holmes Realty Co. was a corporation having an outstanding capital stock of 40,000 shares, of the par value of one dollar each. George Holmes and Alva Adams each held 15,000 shares of said stock, and John Holmes and A. B. Adams each held 5,000 shares.
17 B.T.A. 1324">*1326 The assets of the corporation consisted of the building in which the partnership operated its hardware business, which premises the partnership rented from the corporation for an annual rental of $7,200.
The office force of the partnership kept its own books as well as the books of the corporation. Sometime during the year 1920 there1929 BTA LEXIS 2136">*2139 was set up a credit item on the partnership books by which the corporation was credited with $7,200 as rent for that year. Also, during the year the partnership paid taxes, insurance and other expense items on behalf of the corporation, and charged as against the credit item mentioned heretofore, an aggregate amount of $2,963.20, heaving a credit balance of $4,236.80. That credit balance was not paid to the corporation. At the close of the year the bookkeeper, in order to adjust his books, made an entry by which he divided the credit balance into two equal parts and charged $2,118.40 to Alva Adams, and the same amount to George Holmes. Corresponding credit entires were made on the same books by which Adams and Holmes were each credited with $2,118.40. There is no evidence in the record indicating that those entires, or any of them, were carried to the books of the corporation. No money was paid to the corporation.
One Edward McCabe made up for Alva Adams his tax return for 1920. Alva Adams furnished to McCabe data from which such return was made. As a part of such data there was listed the item under the title of rents "Holmes Realty Co., $2,168.40." (A discrepancy of $501929 BTA LEXIS 2136">*2140 will be noted here, which discrepancy is not clearly explained, but it is admitted that the correct amount is $2,118.40.)
In making up the return and knowing the source of the item in question, McCabe decided that it was not, technically, rent, but was dividend from the corporation and listed the same under "dividends." The Commissioner had the books of the partnership audited and, finding the rent credit in those books with no corresponding list on the return, added that amount, with some other adjustments, to Alva Adams' gross income, and determined a deficiency.
OPINION.
LOVE: In this proceeding there are two questions:
(1) Does the inclusion of the item of $2,118.40 as unlisted income in Alva Adams' return for 1920 result in a double listing of the same item.
(2) Under the circumstances, as set out in the findings of fact, was that item income at all to Alva Adams?
17 B.T.A. 1324">*1327 The evidence clearly shows that, although the manner of handling that item (as well as others) was confusing, that item was included in the return, and that the Commissioner erred in again including same in gross income.
With reference to the second question, it may be stated that the1929 BTA LEXIS 2136">*2141 evidence is positive and clear that no money was paid by the partnership to the corporation, and as the premises leased constituted all the assets of the corporation and were its sole source of income, it had no funds for distribution as dividends, and no dividends were declared.
However, Alva Adams and George Holmes constituted the partnership, and on the partnership books the credit balance due the corporation was charged off, one-half to Holmes and one-half to Adams, and each of those partners credited with said one-half.
Had checks, or actual money passed, as it was supposed to be handled, that moeny would have gone into the treasury of the corporation and presumably, at least, would have been distributed to Holmes and Adams in equal parts, provided of course they had ignored the two small stockholders, as seems to have been done. At least it is apparent that the two partners, instead of paying out that money from the partnership treasury into the corporation treasury and then dividing it between themselves as dividends, simply took the short cut and divided it while it was in their own treasury. As partners, each received credit for one-half of the full amount of the item. 1929 BTA LEXIS 2136">*2142 It seems that the two small stockholders were not considered, are registering no protest, and have acquiesced in the matter. It is contended that by reason of the fact that no money passed from the partnership, that no income was realized, that the procedure was merely a bookkeeping entry.
Alva Adams and his partner, instead of paying the money out of the partnership treasury into the corporation treasury, and then taking it as dividends, simply took the short cut and took it from the partnership treasury and had themselves charged with its receipt. Alva Adams so treated those transactions and furnished memorandum of such of McCabe, from which his income-tax return was to be made.
A recomputation of the deficiency should be made, with the amount of $2,118.40 eliminated from gross income as used by the Commissioner in determining the deficiency, for the reason that said amount was correctly included once before by the decedent in his return.
Judgment will be entered under Rule 50.