1930 BTA LEXIS 2179">*2179 Upon the evidence held that petitioner has failed to prove that the amount of notes given by him is deductible as an ordinary and necessary business expense in the year in question.
20 B.T.A. 220">*220 This is a proceeding for the redetermination of a deficiency in income tax for the fiscal year ended March 31, 1925, in the amount of $3,720.03, resulting from the disallowance by the respondent of an amount of $26,250, claimed as a business expense or bonus, and $1,450 claimed as "payment of debts." Petitioner, in the petition, admits that he is not entitled to the deduction of $1,450, leaving as the only allegation of error the disallowance of the $26,250.
FINDINGS OF FACT.
The petitioner is an individual resident of Palm Beach, Fla.
In 1916 he was desirous of erecting a building in Palm Beach. In order to finance such building he, on September 16, 1916, entered into a contract with George W. Potter and B. A. Maxfield. The contract, after reciting that petitioner had a contract for the purchase of certain property and had procured numerous leases1930 BTA LEXIS 2179">*2180 for stores in a building, and that he wished to borrow $20,000 from Potter and Maxfield, provided that the petitioner should construct the Fashion Beaux Art Building on the property at a cost of $45,000; that Potter and Maxfield should lend him $20,000 to be used in constructing the building; and that petitioner should execute promissory notes in the amount payable to Potter and Maxfield, bearing interest at the 20 B.T.A. 220">*221 rate of 8 per cent. During the construction of the building the petitioner was to assign all leases and contracts to a trustee. After the erection of the building and after payment of all bills the leases were to be reassigned to the petitioner, who was to have charge and control of the operation of the building thereafter. It was further provided that after the reassignment of the leases to the petitioner, Potter and Maxfield should each own a one-eighth interest in the profits accruing from the business and the same should be paid to them on April 1 of each year. They were not, however, to be responsible for any losses in its operation.
These provisions were carried out and the building was operated up to 1924 very profitably, with the exception of the1930 BTA LEXIS 2179">*2181 year 1917. About September, 1924, the petitioner agreed to pay $25,000 to Potter and Maxfield in consideration of the cancellation of the contract. In order to make this payment he gave them five promissory notes totaling $26,250, which included $1,250 for attorneys' fees. These notes were in amounts of $5,000 each and were payable in one, two, three, four, and five years, respectively. At the time of the hearing before the Board at least $15,000 had been paid.
At the time of the cancellation of the contract the accrued profits of the business amounted to about $72,000, of which amount Potter and Maxfield were entitled to about $18,000 between them.
The petitioner deducted the $26,250 in his return for the year ending March 31, 1925, as an ordinary and necessary business expense.
OPINION.
MCMAHON: The petitioner contends that he is entitled to a deduction from his gross income of the fiscal year ended March 31, 1925, of the amount of $26,250, the full face value of promissory notes which he executed to Potter and Maxfield in order to induce them to cancel the contract whereby they were entitled to a part of the yearly profits from the Fashion Beaux Art Building. These1930 BTA LEXIS 2179">*2182 notes were executed about September, 1924, and were payable at intervals of one year after that date. There is no evidence to show what amount, if any, was paid by petitioner on these notes in the year in controversy. Nor is there any evidence to show whether petitioner operated upon the cash receipts and disbursements basis or upon the accrual basis. We must, therefore, assume that he operated upon the former basis.
We have heretofore held that the mere giving of notes by a person operating upon the cash receipts and disbursements basis does not constitute disbursements, and that the amount of the notes is not deductible as a business expense. , and 20 B.T.A. 220">*222 . Clearly, petitioner has failed to prove his right to the deduction claimed or any part thereof. See also , affirmed, .
Judgment will be entered for the respondent.