*2925 Upon the evidence no amount of deductions for salaries, greater than that claimed in the returns and allowed, is determinable.
*58 These proceedings result from the determinations of deficiencies in income taxes amounting as follows: for the year 1922, $699.74; for the year 1923, $1,060.72. Upon motion duly made and granted the proceedings were consolidated for purposes of hearing and decision.
The petitioner alleges error in the failure of the respondent to allow as deduction from income reasonable allowances for accrued salaries of the president and the treasurer of the petitioner. The issue is common to both years.
FINDINGS OF FACT.
The petitioner is a corporation with its principal place of business at Brookline, Mass. On November 29, 1921, shortly after incorporating and immediately prior to deginning operations, William Norris Connor, Charles Noll and Joseph E. Perry, all of the board of directors of the petitioner, held a meeting at which the following action was taken: The salary of the president of petitioner, William Norris*2926 Connor, was authorized in an amount of $5,000 per annum; the salary of the treasurer of petitioner, Charles Noll, was authorized in an amount of $5,000 per annum; the employment was authorized of Charles Noll as general manager at a salary $4,000 per annum. After a discussion, the understanding was arrived at orally by the directors that the salaries authorized would not be paid unless the petitioner was financially able to supply the necessary cash, and unless the income from operations was sufficient to meet the payments
During the taxable years the petitioner was engaged in the garage business at 525 Harvard Street, Brookline, Mass., operating a garage which had a capacity of 225 cars, or nearly 30,000 square feet of floor space. One repairman was employed. Motor cars were stored and cared for, including greasing, washing and oiling. Supplies, accessories, gasoline and motor oils were offered for sale. Automobiles were not dealt in or offered for sale.
Noll's duties included the general supervision of the garage and of the employees; the collection of unpaid accounts; the checking and paying of the accounts payable; the handling of promissory notes. He acted as treasurer*2927 as well as manager. During most of the time he was engaged about 16 hours a day in devotion to his duties and he had no other occupation. He drew his salary as manager in cash or by bank check in an amount of $75 per week. Immediately prior to entering the employment of the petitioner Noll had been engaged as business manager at Plymouth, Mass., of a pageant for the Massachusetts Tercentennial Committee, at a salary at a rate of $4,000 per annum; prior to that he was in the employ of the United Drug Co. for about two years as a sales manager and investigator.
*59 Connor's duties as president of the petitioner were supervisory; he visited the garage at least three or four times a week for conference with Noll, and would go over the accounts receivable and accounts payable; sometimes when particularly busy he would spend half a day on Sundays, at the garage. He kept his car at the petitioner's garage and in consequence visited the garage practically every day; it was usually in the evenings, when he brought his car in to the garage, that he would go over affairs with Noll. At this time Connor was in the contracting business with the Aborcaw Co. In the fall of 1922 he*2928 went with the Federal Mutual Liability Insurance Co., of which company he is now vice president.
Connor never drew his salary of $5,000 per annum as president, and Noll did not draw his salary of $5,000 per annum as treasurer of the petitioner. These salaries were never accrued upon the books of the petitioner or exhibited as expenses or liabilities in published financial statements of the petitioner. Connor and Noll disposed of@ their stockholdings in the petitioner in March, 1927, and they then gave releases of all demands and made no claims for the back salaries.
The system of accounting followed by the petitioner included an accounts receivable ledger wherein customers were debited for items of sales or service, either daily or monthly, according to their nature. Payments received from the customers were posted to the credit side of these accounts. Invoices for accounts payable were retained in an unpaid bills file until paid. An accounts payable ledger was not maintained.
The income-tax returns filed by the petitioner for the taxable years were on the accrual basis. The returns showed the following gross sales: for 1922, $91,867.68, for 1923, $97,927.70. Deductions*2929 reported on the returns included the following: for 1922, compensation of officers, "none," wages, $17,572.26; for 1923, compensation of officers, (blank), wages, $21,831.95. The net incomes reported in the returns were adjusted as follows by the respondent in determining the deficiencies: for 1922, an increase of $7,200 attributed to excessive deductions for depreciation disallowed; for 1923, an increase of $7,203.05 attributed to excessive depreciation $7,200, and an unexplained discrepancy, $3.05. Deductions were not taken in the returns for the taxable years for the salary of the president, authorized at $5,000 per annum, or for the salary of Noll as treasurer, authorized at $5,000 per annum.
The petitioner realized no net profits from 1923 to the date in March, 1927, when Conner and Noll disposed of their stock.
OPINION.
TRUSSELL: The sole issue in this case is whether the petitioner is entitled to deduct from income additional allowances for salaries of *60 its president and its treasurer-general manager. The respondent has allowed the deduction of the salary actually paid to the treasurer-general manager. The additional deductions now contended for were not*2930 claimed in the returns filed by the petitioner.
Shortly after the petitioner was incorporated the directors authorized salaries as follows: for Connor, the president, $5,000 per annum; for Noll, the treasurer and general manager, $5,000 per annum as treasurer and $4,000 per annum as general manager. An understanding was arrived at orally at this meeting, however, to the effect that the salaries would not be paid if the income derived from operations was insufficient or if the cash capital necessary for the payment was not available. Noll regularly drew a salary of $75 per week, but he has never drawn any additional salary nor has Connor ever drawn any salary whatever. The undrawn salaries were not accrued upon the books of the petitioner. After several years of operation Connor and Noll disposed of their stockholdings in the petitioner and without claiming any part of the back salaries, they gave releases of all demands upon the petitioner.
Deductions from income for salaries are authorized in section 234(a)(1) of the Revenue Act of 1921, with the provisos that the amount of the allowance shall be reasonable, the services shall have been actually rendered, and the expense*2931 shall have been paid or incurred during the taxable year.
In a situation such as this, where the petitioner comes forward to claim a deduction for expense which it did not claim when it filed the return and which is lacking of any support whatever from the books of account, due to the failure to accrue the salaries as liabilities, the first question which naturally arises is whether the expense was actually incurred during the taxable year. If it was not so incurred it is not deductible and it would be unnecessary to go into the question of the amount of a reasonable allowance.
It is in evidence that prior to the beginning of operations the board of directors of the petitioner duly authorized salaries in the amounts set out in the findings, but the directors also reached the understanding at this same meeting that the salaries would not be paid if cash was lacking or if, furthermore, the income from operations was insufficient. The petitioner was a close corporation. Conner and Noll, the intended recipients of the salaries, were two of the three individuals forming the board of directors. They were constantly in touch with the affairs of the petitioner and in daily contact*2932 with each other. They were the executive officers of the petitioner as well as directors. A salary was paid to Noll regularly, but the additional salaries now claimed have never been entered upon the books or claimed by the officers. In consideration of all of these facts the conclusion is unescapable that the original authorization was no *61 more than tentative and the interested parties by mutual understanding determined the amount of salaries actually incurred by the petitioner to be no more than the amount actually paid. Such a readjustment is no novelty in corporation procedure. The amounts finally agreed upon are governing. . Certainly there is afforded no support to the petitioner's contention by any fine-spun theory of constructive receipt by the officers followed by a gift to the corporation through forgiveness of indebtedness. Cf. . In our opinion there is no sufficient basis for an allowance of a deduction greater than that already allowed by the respondent. Cf. *2933 ; ; .
Judgment will be entered for the respondent.