*2029 1. In the absence of evidence of facts, inferences will not be drawn to support petitioner's contention when contrary inferences are equally consistent with the evidence.
2. No deduction under section 234(a)(5), Revenue Act of 1918, may be allowed where petitioner voluntarily releases a solvent debtor from its liability.
*504 This is a proceeding for the redetermination of deficiencies in income and profits taxes for 1919 of $105,093.12 and for 1920 of $70,246.48.
The petitioner contends that it is entitled to deduct $426,789.07 as a debt ascertained to be worthless and charged off in 1919 and that this amount was not a deduction of 1918, as held by the respondent. It seeks also the adjustment of invested capital for 1919 and 1920 resulting from the foregoing deduction.
FINDINGS OF FACT.
The petitioner, hereinafter referred to as the Felt Co., is a corporation organized in 1911 under the laws of the Commonwealth of Massachusetts for the purpose of manufacturing and dealing*2030 in felt and felt and woolen goods, and its principal office is in Boston.
Willett, Sears & Co., hereinafter referred to as the Partnership, was a partnership which in some undisclosed manner controlled the Felt Co. from some time prior to 1917 until July 31, 1918, when it disposed of its interest therein. Willett was the chief executive officer of the Felt Co. and Sears was vice president until early in 1918 and thereafter was treasurer until July of that year.
Prior to April, 1917, Frank W. Knowlton and William A. Gaston, as representatives of the owners of 80 per cent of the stock of the Roxbury Carpet Co. and the Saxonville Mills, had been engaged in negotiations looking toward the sale of the entire stock of those companies to the Partnership. The total outstanding stock of both companies consisted of 1,290 shares, of which approximately one-third were shares of the Roxbury Co. and two-thirds were shares of the Saxonville Mills. Both corporations were operated as one *505 business organization. These negotiations were embodied in a written offer by Knowlton and Gaston on April 18, 1917, to sell the stock, which was accepted by the Partnership in a letter of April 23, 1917.
*2031 Knowlton and Gaston, in their written offer, proposed to sell 80 per cent of the stock which was owned by their principals, and to procure for the Partnership the remainder in so far as it was possible to obtain it from the other stockholders. The purchase price was fixed at $1,250 per share, 25 per cent of which was payable in cash upon the transfer of the stock certificates and the remainder was payable in notes of the Partnership, secured by deposit, as collateral, of all the stock transferred. The notes were to be issued in groups of three, as follows: A note due 10 months after the date of transfer for 25 per cent of the purchase price; a note due 14 months after the date of the transfer for 25 per cent of the purchase price; and a note due 18 months after the date of transfer for 25 per cent of the purchase price. The notes were to bear interest at 5 per cent per annum, payable semiannually, and the Partnership was given the right to anticipate payments thereon, and, so far as there might be any substantial liquidation of the capital assets other than in the ordinary course of business, the proceeds of the liquidation could be applied in payment of the notes. Upon payment*2032 of any of the notes, the Partnership was entitled to a release of collateral in the proportion of $50 in value of collateral for each $100 of payment.
The Partnership made the initial cash payment by issuing its own checks to the several stockholders on April 25, 1917, in the aggregate amount of approximately $400,000, or a little more. The checks were drawn on the National Shawmut Bank, hereinafter referred to as the Bank. At the same time, the Partnership executed 33 promissory notes in three groups, payable to the individual stockholders in 10, 14 and 18 months. The notes were payable at the Bank, and were deposited with the Bank for collection. The notes contained a statement that the makers had deposited with the Bank a certain number of shares of the stock as general collateral security, and a provision authorizing the Bank, upon nonperformance by the makers, to sell the stock and apply the proceeds toward payment of the notes. Pursuant to the terms of the notes, the stock was deposited with the Bank as security, except that, in the case of three holders of a small part of the stock, the stock was at their insistence deposited with them.
The name of the Felt Co. did*2033 not appear on any of the notes, and, throughout the entire negotiations leading up to the sale, the name of the Felt Co. was not mentioned to Knowlton, nor was it stated that the stock was purchased for the account of anyone other than the Partnership.
*506 In June, 1917, the Partnership was indebted to the Felt Co. for stock transferred to it by the Felt Co., for cash advances and rent, and for service charges in an amount in excess of $400,000, which was reflected by a debit balance in its account on the books of the Felt Co. On June 30, 1917, at the direction of Sears, the bookkeeper of the Felt Co. opened a new account entitled "Roxbury Carpet, Saxonville Mills Purchase," and debited that account in the amount of $400,000 and credited the account of the Partnership with a similar amount. The entries were made as of April 25, 1917.
On February 25, 1918, the Felt Co. drew a check against its funds in the Bank, payable to the order of the Bank, in the amount of $408,890.63. This check was drawn at the direction of Sears to the bookkeeper, and was signed by the properly authorized officers. The first group of notes given by the Partnership had matured at that time, *2034 and the note holders received payments in that month aggregating about $408,000.
On June 25, 1918, the Felt Co. drew three checks, payable to the Bank, in the aggregate amount of $26,789.07. One was drawn on the First National Bank of Boston for $12,000; one was drawn on the Oid Colony Trust Co. of Boston for $10,062.51; and one was drawn on the Webster & Atlas National Bank of Boston for $4,726.56. These checks were prepared by the bookkeeper of the Felt Co. pursuant to instructions, and were signed by its properly authorized officers. The only reason for drawing the four checks hereinbefore mentioned on the four separate banks was to maintain, so far as possible, an even distribution of funds in each bank. The second group of notes given by the Partnership had matured at the time these checks were issued, and the noteholders received payments in June, 1918, of a comparatively small part of the amount due on the notes, which represented payments made to reduce the notes to even figures and to settle in full with a few of the small minority noteholders.
In December, 1918, there was an unpaid balance due on the second and third group of notes of over $800,000, and the stock*2035 which was deposited as security was sold at public auction and purchased by a representative of a syndicate composed of all of the noteholders for an amount in excess of $600,000, leaving an unpaid balance due from the Partnership of about $170,000. In March, 1919, the Partnership entered into a voluntary composition agreement with its creditors, and, by virtue of the distribution made, the noteholders received 15 per cent of the unsatisfied portion remaining due on their notes. The Saxonville Mills stock was in 1918 exchanged for an equal amount of stock of the Roxbury Carpet Co., and the Saxonville Mills was dissolved so that the stock actually sold at public auction consisted of 1,290 shares of the stock of the Roxbury Carpet Co.
*507 On or about July 31, 1918, the Partnership disposed of its interest in the Felt Co. and relinquished control. At the end of 1918 the "Roxbury Carpet, Saxonville Mills Purchase" account showed debits of somewhat more than $826,000, consisting of the debit entry of $400,000 made as of April 25, 1917, and additional debits of $426,000 made in 1918.
At the end of 1918 the treasurer of the Felt Co. sought advice of counsel on the question*2036 of its right to charge off certain items, among them the item of $826,000, and was advised that the item of $400,000 could properly be charged off as worthless at that time, but that the item of $426,000 should be retained on the books. The bookkeeper was thereupon directed to charge off the item of $400,000 and to retain on the books the item of $426,000, and this he did.
The Felt Co. at the time of the settlement in 1919 delivered to the Partnership a general release of all liabilities for an undisclosed consideration. In 1919 the Felt Co. was dependent for credit upon certain banks in Boston, including the National Shawmut Bank, and was vitally interested in retaining their good will. It had theretofore acquired a special loan of $3,000,000, which was renewed in February, 1919, and it was heavily indebted to the Bank at the end of that year. Counsel for the Felt Co. caused to be prepared, for the purpose of retaining the good will of the Bank, a general release to the Bank, which was executed by its treasurer and delivered to the Bank in 1919. This release was ratified by the Felt Co. on January 2, 1920. The charge-off of the item of $426,000 was made at the end of 1919. *2037 The Felt Co. claimed the amount of $400,000 as a loss in its return for 1918 and claimed the amount of $426,789.07 as a loss in its return for 1919. The respondent held that both amounts constituted a loss sustained during the year 1918 and recognized a deduction for that year in the amount of $826,789.07.
The charter of the Felt Co. shows that it was organized for the purpose of "manufacturing, producing, adapting, preparing, buying, selling and dealing in felt and felt and woolen goods and piano and organ supplies and other articles made in whole or in part of felt, woolen or other substances, and all machinery, materials, apparatus, appliances or articles required or used for, in connection with or incidental to the manufacture, use, purchase, sale, preparation, working or adaption of said goods, supplies or other articles." The balance sheet filed with the return for 1919 indicates that the Felt Co. owned a substantial amount of stock in domestic corporations.
OPINION.
STERNHAGEN: The petitioner rests its claim to a deduction for 1919 upon the ground that at the beginning of that year a debt of *508 $426,789.07 was owing to it from the National Shawmut Bank and*2038 that this debt was during that year ascertained to be worthless and charged off. Revenue Act of 1918, section 234(a)(5). The theory argued is that the Roxbury stock was bought by Willett, Sears & Co., the Partnership; that the petitioner was under no obligation in respect thereof; that the payments by petitioner were wrongful payments related to the stock purchase; that the Partnership was worthless as a source of recovery; that the Bank was liable to petitioner for having improperly recognized the checks and paid on them; and that the release of the Bank in 1919 by petitioner through either the release of the Partnership or the specific release of the Bank established the worthlessness of the debt; hence, that the debt was properly charged off and the deduction is established.
The premises for this argument are to a large extent inferences which in our opinion are no more justifiable than contrary inferences, and which are not to be accepted. Where the detailed facts are available to petitioner, he has no right to rely on an inference. Here the facts are beclouded and it is not possible to say that the legal situations postulated by petitioner are necessarily true. Did Willett, *2039 Sears & Co. buy the Roxbury stock for itself or for the Felt Co.? Knowlton thought he was selling to the Partnership, but this is not controlling here. What did the Partnership and the petitioner arrange and understand between themselves? Certainly, as manifested by their own conduct, the transaction was one inuring to the petitioner. In the absence of direct evidence on this, there is justification for the belief that the petitioner had rights in the stock and an obligation to pay for it. If so, its check to the Bank was not open to challenge and the Bank was never indebted.
Was the Partnership liable to petitioner, and, if so, was it ever unable to pay? The evidence shows that the original account with the Partnership was in excess of the $400,000 item and that to this extent the account was reduced by the bookkeeper and the Roxbury account substituted. We are asked to assume that the Partnership's composition with creditors was predicated on insolvency and that the terms of the composition agreement were a conclusive demonstration of worthlessness. This latter could be inferred only from the 15 per cent settlement and the release. The release, however, was based on a*2040 consideration which is undisclosed. This may possibly be due to the fact that the Partnership received some of the pledged stock when the first payment was made and this in turn may have been turned over to petitioner, who actually made the payment, as a consideration for the release.
But if the Bank really was liable at any time to the petitioner, and the release of the Partnership was a release of the Bank, this was a voluntary relinquishment of the Bank's liability and not an *509 ascertainment of worthlessness. This is likewise true of the specific direct release of the Bank's liability given later. The Bank was solvent and if petitioner was a creditor, it can not say it ascertained the debt to be worthless by voluntarily releasing the Bank from its liability.
From the evidence, it must be held that the respondent correctly refused the deduction of $426,789.07 in 1919. This disposes of any issue the petitioner might otherwise have had as to its invested capital.
Judgment will be entered for the respondent.