1929 BTA LEXIS 2183">*2183 On the facts here presented, held that attorney's fees constituted an investment of capital and therefore are not allowable as a deduction in determining taxable income.
17 B.T.A. 1112">*1112 This is a proceeding for the redetermination of a deficiency in income tax of $624.13 for 1922. The deficiency results from the action of the respondent in disallowing a deduction of $6,050 representing attorney's fees incurred in connection with a controversy concerning the management of a corporation of which the petitioner was the president and majority holder of the voting stock.
FINDINGS OF FACT.
The petitioner and O. E. Williamson, his brother, traded as a partnership under the firm name of Williamson Veneer Co. for a number of years prior to and up to the date of the death of O. E. Williamson on February 18, 1914. Immediately thereafter and in 1914 a corporation was formed with the same name as the former partnership. During 1914 a settlement was effected with the heirs of O. E. Williamson, whereby they turned in to the corporation certain property of the1929 BTA LEXIS 2183">*2184 former partnership received by them from the estate of the decedent and received part payment in cash and the balance in preferred stock and common stock of the corporation. Certain real estate, including a building, was not turned in to the corporation, but was held equally between petitioner and the heirs of the decedent as joint owners and rented to the corporation. The part that the sons of O. E. Williamson, hereinafter referred to as the sons, would have in the management of the corporation had been the subject of some discussion prior to the formation of the corporation and through the persuasion of the petitioner the above mentioned settlement was effected.
The sons were all employed by the corporation until about 1921 or 1922, when they started an investigation to determine whether "they were getting all they ought to get out of" the corporation. At that time the corporation was under the management of the petitioner, who controlled it through his ownership of approximately 80 per cent of the common stock, which was the only stock having voting rights. The trouble between the petitioner and the sons began because they "were not given as much show in the business 17 B.T.A. 1112">*1113 1929 BTA LEXIS 2183">*2185 as they thought they ought to have." The sons thought they should be given precedence over a son of the petitioner, but as the petitioner had the management of the corporation he could not see that this should be done. The sons of O. E. Williamson wanted to take over the management of the corporation, which the petitioner would not consent for them to do. Counsel and accountants represented the sons in making the investigation. Conditions ultimately reached the stage where the petitioner felt that in order to protect himself and the corporation he should take some action. He thereupon employed an attorney for the purpose of reaching some satisfactory settlement of the differences between them.
After the attorney had acted as adjudicator or adjuster of the differences between the petitioner and the other parties through long negotiations, a settlement was effected whereby the petitioner in 1922 purchased at book value the common stock of the heirs, amounting to approximately 200 shares, and also purchased the real estate that he and they held as joint owners. In order to acquire the one-half interest in the real estate it was necessary for the petitioner to mortgage the whole1929 BTA LEXIS 2183">*2186 of it. The widow and heirs of O. E. Williamson ceased to be the holders of common stock in the corporation after the settlement was effected, but retained their preferred stock. The sons remained in the employment of the corporation for some time after the settlement and salaries were paid them, as the petitioner did not desire to have any breaks in the family relationship.
The corporation has continued in operation, but has never paid any dividends. The petitioner was president of the corporation in 1922 and has been so continuously since then.
In 1922 the petitioner paid attorney's fees of $6,050 for services rendered in connection with the settlement effected in that year as the result of which he acquired the stock and real property mentioned above.
In his income-tax return for that year the petitioner took the amount as a deduction. In determining the deficiency here involved, the respondent refused to allow the deduction.
Income reported by the petitioner for the taxable year consisted of his salary of $25,000 received from the Williamson Veneer Co. as president and $2,590.15 received as rents and royalties. The deductions taken were $1,272.28 for interest paid, 1929 BTA LEXIS 2183">*2187 $783.55 for taxes paid, and the amount of $6,050 above mentioned for attorney's fees.
OPINION.
TRAMMELL: The question here involved is whether the attorney's fees are deductible as a business expense. While the evidence before us is somewhat uncertain and conflicting, we think that it fairly supports 17 B.T.A. 1112">*1114 the conclusion that the attorney was employed by the petitioner for the purpose of reaching a satisfactory settlement of the differences between him and the sons of his deceased brother respecting the management of the corporation. In view of our conclusion as to the facts, we think the case comes within the principle set out in the case of , wherein it was held that attorney's fees incurred in acquiring practically the ownership or control of a corporation and the consequent management thereof constitute a capital investment. In our opinion, therefore, they are not deductible as ordinary and necessary expenses.
Reviewed by the Board.
Judgment will be entered for the respondent.