*4018 1. An amount set up out of earnings as a reserve for bonus, to be paid to employees who continued as such at the time when payment should be made in the succeeding year, the amount of the reserve being based on the pay roll of the year when set up, and the amount of payment to be made being based upon the pay roll of the succeeding year, held to be a reserve to meet a liability not yet incurred.
2. The amount of such a reserve held not deductible in computing taxable income of the year when set up.
*857 This proceeding is for the redetermination of deficiencies in income and profits taxes for the calendar year 1919 amounting to $2,345.65 and for the calendar year 1920 amounting to $3,173.73.
FINDINGS OF FACT.
Petitioner is a Wisconsin corporation organized in 1908, with its principal office at 257 South Water Street, Milwaukee. It is engaged in the business of manufacturing envelopes of all kinds. In 1919 and in 1920 petitioner had less than 100 employees. In May, 1919, George F. Moss, who at that time was petitioner's president, *4019 treasurer and manager, called a meeting of the employees and told them that they would be paid a bonus whenever the petitioner's business warranted such payment. In 1917 and in 1918 it had paid bonuses to its employees. At another meeting of the employees, held on December 23, or 24, 1919, the employees were told that the company had set aside as a bonus for its employees an amount equal to 15 per cent of its pay roll. On December 24, 1920, bonuses amounting to $2,861.41, representing 5 per cent of petitioner's pay roll for 1919, were paid by checks to all of the employees, with the exception of three employees, who did not call for their bonus checks in the amounts of $1.15, $.98, and $17.50. These three employees had quit working for petitioner. Their checks were saved for them until July 28, 1920, when they were canceled.
On December 26, 1919, petitioner's directors met, at which time the following action, as recorded on the minutes of the corporation, was taken:
Mr. John B. Moss called attention to the agreement made with our employees in May, 1919, that we would reserve for an employee's bonus all that the earnings of the company would warrant. The earnings for the*4020 year warranting employees' bonus of the factory pay-roll of 15%. The employees were given a bonus of 5% on December 24, 1919, and Mr. John B. Moss moved that the additional 10% bonus be paid to the employees on the basis of their salary at such time or times as the Board of Directors may deem best, carried.
Petitioner's books were kept on the accrual basis. On December 31, 1919, a reserve for bonuses amounting to $5,722.82, was set up on the books. During 1920, bonuses of $7,652.19 were paid to the employees in two payments on June 16, 1920, and December 24, 1920. The additional amount of $1,929.37, was charged to expense in 1920. Those that came into petitioner's employ in 1920 were treated in the same way, with respect to bonus payments in June and December, 1920, as those who had been in petitioner's employ in 1919. The bonuses which the new employees received in June and December, *858 1920, were determined upon the basis of the salaries they had received in 1920 up to those dates. The bonuses paid in 1920 to employees who had been employees in 1919 were based on their 1920 salaries.
On December 4, 1920, petitioner's directors met and voted to set aside a reserve*4021 equal to 15 per cent of the factory pay roll for the year 1920, to be paid to the employees during 1921. At a meeting of the employees held in December, 1920, the employees were told by petitioner's president that salaries would have to be cut 15 per cent and that a bonus in proportion to 15 per cent of the 1920 salaries had been set aside to be paid during 1921. On December 31, 1920, $12,818.10, representing 15 per cent of the 1920 pay roll, was set up as a reserve for bonus on petitioner's books.
During 1921 each employee who had been employed in 1920 was paid the reduced weekly salary plus 15 per cent as a bonus. Those who were not employees of petitioner in 1920 did not receive any bonus. They received only salaries. Twenty-six of the employees who worked for petitioner in 1920 and who left petitioner's employment before the end of 1921, received only 15 per cent of their 1921 salary. During 1921 bonuses of $12,580.83 were paid.
Petitioner deducted on its return for the year 1919 the total of the bonus paid on December 24, 1919, $2,861.41, and the amount set up on the books as a reserve for bonuses, $5,722.82. The Commissioner in computing petitioner's taxes for 1919, *4022 allowed the amount paid in 1919, or $2,861.41, as a deduction from gross income for that year, and disallowed the amount of the reserve, or $5,722.82, as a deduction from gross income for that year. The Commissioner, in computing petitioner's taxes for 1920, allowed as a deduction in 1920 bonuses paid to employees during 1920 and disallowed the amount of the reserve set up in that year, or $12,818.10.
The Commissioner reduced petitioner's invested capital for 1919 by $5,140.11 and for 1920 by $1,887.45, on account of Federal income and profits taxes for the years 1918 and 1919, respectively, prorated from the dates the installment payments became due.
OPINION.
PHILLIPS: The petitioner has abandoned its appeal from the Commissioner's determination in regard to reduction of invested capital.
Petitioner's sole contention is that it should be allowed to deduct from its gross income for the years 1919 and 1920 the amounts set up on its books in those years as a reserve for bonuses to be paid to its employees. The respondent takes the position that no liability for any bonus in excess of that paid was incurred during the taxable years and that only the amount paid may be deducted. *4023 The Revenue *859 Act in section 214(a)(1) provides for the deduction of the amounts paid or incurred.
Upon the hearing the petitioner's president and manager testified that the bonus set aside was payable to the employees for the year in which the reserve was set up, whether or not they remained in the employ of petitioner at the time payment was made. On the other hand petitioner's bookkeeper testified that the understanding with the employees was that they would receive a part of the bonus set aside only if they remained with the company in the succeeding year. The testimony of the bookkeeper is supported by the treatment made of the bonus. Employees shared in the bonus only if they were in the employ of petitioner when payment was made. Furthermore, while the amount of the reserve set up was based on the payroll of the year when so set up, payments in the succeeding year were not based thereon but upon the salary of the employee in the year of payment.
The reserve set up bore no definite relationship to the amounts which were to be paid, either to the individual employees or as an aggregate. An employee for a portion of 1919 was paid a full ten per cent of his*4024 1920 salary, while one who was employed during all of the year 1919 but left before June, 1920, received none. The 1920 pay roll was greater than that of 1919, consequently the reserve set up at the end of 1919 was insufficient by approximately 25 per cent. On the other hand the reserve set up in 1920 was excessive and was not all paid in 1921. In such circumstances it is our opinion that the amounts paid related as much to the year of payment as they did to the year when the reserve was set up. Conceding that the company looked to the profits of the year when the reserve was set up to determine whether any bonus would be paid in the succeeding year, and the percentage that could be paid, it is still difficult to conceive how it can be said that a liability was incurred for the amount set up as a reserve, for such amount was not payable in any event but only upon the basis of services still to be performed. The employees had not yet performed all of the services required of them before this bonus was due to them. The amount set aside was in truth a reserve to meet a future liability and did not represent a present liability.
*4025 The instant case is to be distinguished from other decisions of the Board, relied upon by petitioner, where additional compensation became payable by reason of services performed before the close of the taxable year, with no requirement for future services. ; ; . The situation here in that respect is similar to that *860 presented in . We are of the opinion that the liability for these bonuses was incurred in the years when paid and that they constitute an expense of the business of such years.
Decision will be entered for the respondent.