*2098 1. For failure on the part of the petitioner to prove that salaries, for which it claims a deduction in the computation of its net loss for 1921, were "incurred" within the meaning of the Act, the respondent's determination of the said net loss is approved.
2. The respondent erred in disallowing the amount of salary claimed as a deduction for 1922.
*210 This proceeding is for the redetermination of a deficiency in income tax of $2,188.79 for the calendar year 1922.
The petitioner alleges error on the part of the respondent in that he failed to allow a deduction of $10,000 in 1921, in arriving at the net loss deductible in 1922, and to allow a like amount as a deduction in 1922, representing officers' salaries for said years.
FINDINGS OF FACT.
The petitioner is a Georgia corporation with its principal place of business in Augusta, Ga., whose officers during the year in controversy were Weems A. Smith, president, C. E. Smith, vice president, Julian M. Smith, treasurer, and W. P. Egbert, secretary.
At a meeting of*2099 the stockholders on June 3, 1920, a number of matters were considered and resolutions adopted or rejected. The salaries of officers for the years 1914 to 1919, inclusive, as set forth in the minutes of that meeting by the following recitals were approved:
*211 WHEREAS, it appears from the Minutes and records of the Company that Weems A. Smith, as President, and W. B. Brigham, as Treasurer, actively served said Company in their respective official capacities during the years 1914, 1915 and 1916, and each charged the Company for said services during said three years the sum of $5,000.00, which said salaries were paid the said two officers by issuing to them the common stock of the Company at par, to-wit: 200 shares to each of them for said three years; and
WHEREAS, for the years 1917, 1918 and 1919 the salaries of each of said officers for their actual services to said company was fixed at $5,000.00 to each of them, and said Weems A. Smith as President was paid $5,000.00 per annum for 1917, 1918 and 1919 by issuing to him the common stock of said company at par, to-wit: 200 shares of said common stock for each of said years, and said W. B. Brigham was paid said salary of*2100 $5,000.00 for the years 1917 and 1918, and the proportionate part thereof up to the date of his death in the year 1919 by issuing to him the common stock of said Company at par to the amount of $5,000.00; and
WHEREAS, the entries on the books of said Company show that said stock was issued in payment of salaries for services of said officers as stated above; and
WHEREAS, it appears that said salaries were paid to said officers in the stock of said company at par, for the reason that the company held said stock originally authorized and unissued and did not have the cash assets available to pay said salaries which were due to said officers for actual services rendered to said company; and
WHEREAS, on December 31, 1919 said company in pursuance of previous agreement paid to W. Robinson and W. P. Egbert employees of said company for extra services each the sum of $2,500.00 which was paid in the common stock of said company at par - 100 shares of said stock being issued to each of said parties;
* * *
As the meeting of stockholders aforesaid was about to adjourn, Judge E. H. Callaway, attorney for the petitioner in 1920, who was in attendance at that meeting, directed attention*2101 to the fact that a resolution fixing the salaries of officers should be offered, whereupon Julian M. Smith moved that the salaries for 1920 and subsequent years be fixed at $5,000 each for the president and vice president, and $2,000 for the treasurer. The said motion as made was unanimously adopted at that meeting, but, due to an oversight on the part of the secretary of the company, was not incorporated in the written minutes of the meeting.
The minutes of the board of directors' meeting held on February 11, 1921, contain the following statement:
Under the head of new businss the salary of the President and Treasurer who had not received any remuneration for the year 1920 was discussed by the Board and it was the sense of the Board that the fixing of their salaries be considered at a later meeting.
The minutes of the board of directors' meeting of January 20, 1922, contain the following statement with respect to salaries:
Under the head of new business, upon motion of Mr. Brigham, duly seconded and carried, the salary of the President was fixed at $8,000 and Treasurer at *212 $2,000 per annum, reverting back to and including salary due for the years 1920 and 1921.
*2102 Under date of December 30, 1922, there was credited to the account of W. A. Smith $7,100.09, and later, on December 31, 1922, $899.91, making a total of $8,000, which represented his salary for 1922. There was credited to said Smith's account, by journal entry under date of December 31, 1922, the sum of $8,000, representing his salary for 1921 as provided for at the directors' meeting of January, 1922, hereinbefore referred to. The $7,100.09 credited to Smith's account represents a balance of $2,267.23 brought over from 1921, plus the amount of his withdrawals for 1922, and the other amount of $899.91 was the amount undrawn and still due him for that year. No salaries had been credited to the said Smith until December, 1922.
The salary of the treasurer was paid to him in 1922. In connection with the protest filed by the petitioner with respondent, W. A. Smith, now deceased, executed an affidavit on September 17, 1926, containing the following:
* * *
This company was organized in 1911, and its officers gave their services without compensation until 1917. At this time, the company was not in financial position to pay cash salaries, but salaries were credited up to them*2103 for 1917, 1918 and 1919, as will be shown in the resolution, copy of which is attached. The directors at that time recognized that the officers could not give their services to the company, and voted them their salaries in stock of the company. This established a precedent of a minimum salary for them, and no further mention was made of salaries until February 1921, when the question was brought up, but deferred to another date as to fixing the amount, but still recognizing the value of the services rendered. In 1922 the exact amount of the salaries was fixed for the years 1921 and 1920, which was, for the president, $3,000.00 in excess of the previously allowed salary, but since that time the salary of the president has remained at $5,000.00, without a direct resolution of the directors, but with their sanction and knowledge, and the amount credited to him each year, has been indirectly approved. The reason why no salaries were credited in 1920 and 1921 was because of the disastrous depression in these years, which almost bankrupted a great many rubber concerns, and they were unable to pay the salary if it had been credited, and were not able to pay it in 1922; in fact, $9,395.09*2104 of the salary credited in 1922 still remains unpaid, therefore the officers and directors felt that i would be suicide for the company to pay salaries in those years, and waited for an opportune time when they could recompense the officers for past services. In fact the president has from time to time placed to his credit with the company several thousand dollars of his own money from other sources so that the company would not be placed in financial straits. On this money he has never received one penny of interest.
Therefore, in view of the precedent established in 1917, 1918 and 1919 of paying the president a salary of $5,000.00 per annum, and other officers in proportion, we feel that at least, the income for the company's return for 1921 should be allowed as amended, by adding a salary of $8,000.00 for the president and $2,000.00 for the treasurer, thereby increasing the loss to bring forward *213 to 1922, and if any of this salary is to be disallowed, it should be only the excess over the $5,000.00 or $3,000.00 of the president's salary, which had been established by a precedent of nine years, and the net income of 1922 be reduced accordingly.
The petitioner's*2105 books and records were kept on the accrual basis and its returns for 1921 and 1922 were filed on that basis.
The amount of the salaries proposed at the meeting of June 3, 1920 was reasonable.
OPINION.
MORRIS: The respondent contends that since the petitioner had paid no cash salaries prior to 1921, and the board of directors at its meeting on February 11, 1921, did not fix salaries, but postponed consideration thereof to a later date, and the minutes of the board of directors of January 20, 1922, fixed salaries for 1920 and 1921 only, no liability existed in 1922, for the salaries of $10,000, and, furthermore, since the resolution fixing salaries for 1920 and 1921 was not passed until 1922, there was no liability existing in 1921 for the payment of the $10,000 in quesion for that year and consequently the petitioner was entitled to no deduction therefor.
The petitioner is entitled to deduct "all the ordinary and necessary expenses paid or incurred during the taxable year * * * including a reasonable allowance for salaries or other compensation for personal services actually rendered * * *."
Therefore, in order to determine the deductibility of the amounts here in controversy, *2106 we must find from the record that they were "incurred," that is, that there was a liability during and for the years in controversy. . In other words, there must have been a legally enforceable obligation in those years. .
The record shows to our satisfaction that at the stockholders' meeting of June 3, 1920, Julian M. Smith offered an oral motion that the salaries of Weems A. Smith and C. E. Smith be fixed at $5,000 each per annum, and $2,000 per annum for Julian M. Smith, and that said motion was unanimously adopted, although it was not made a part of the written minutes of that meeting; that thereafter, on February 11, 1921, the directors held a meeting, at which the question of salaries of the said Weems A., C.E., and Julian M. Smith for 1920 was discussed and, as the minutes disclose, "it was the sense of the board that the fixing of their salaries be considered at a later meeting."
On January 20, 1922, the board of directors passed a resolution fixing the salaries of Weems A. and Julian M. Smith at $8,000 and $2,000 per annum, respectively, "reverting back to and*2107 including salary due for the years 1920 and 1921."
*214 The by-laws of the petitioner undoubtedly provide for the fixing of officers' salaries and would settle the question of whether that power was vested in the stockholders on in the board of directors, but unfortunately the by-laws are not before us, nor are we told what they contain with respect to that question. Several witnesses ventured their own opinions, in the form of conclusions, that the stockholders were so empowered, but, since that becomes an important question for us to determine, we deem it necessary to examine the question ourselves and draw our own conclusions based upon the facts we have of record.
It is well settled law, and we believe it requires no citation of authority, that stockholders, as such, have no power to bind a corporation by contract either individually or as a body. In such matters the directors have supreme power and authority. The directors are the managers and, as long as they conduct the affairs of the corporation lawfully and for the best interest of all concerned, their activities can not be questioned nor successfully attacked. Stockholders have, of course, the power to elect*2108 directors, make by-laws, increase or decrease the capital stock, authorize amendments to the charter, declare dividends, and dissolve the corporation, but beyond there their functions are exceedingly limited. See Cook on Corporations, 8th ed., vol. IV, secs. 704, 727. If stockholders can not contract for the corporation and bind it by their acts, it follows that they have no power to fix the salaries of officers.
The testimony of witnesses is fairly conclusive that an oral resolution was in fact offered and adopted by the stockholders at the meeting held on June 3, 1920, and we have so found as a fact, but it does not appear that the corporation ever acted in accordance therewith. It appears that the directors totally ignored their action.
Had the board of directors made no mention of salaries, it may reasonably be argued that they had overlooked the former action of the stockholders, but such was not the case. At its meeting of February 11, 1921, the salaries of the president and treasurer of the company were discussed and "it was the sense of the board that the fixing of their salaries be considered at a later meeting." At its meeting of January 20, 1922, the salaries of*2109 the president and treasurer were actually fixed for the years 1920 and 1921 at $8,000 and $2,000 per annum, respectively. If salaries had already been fixed for those years, as the petitioner seems to believe and contends, there would have been no necessity for a further fixing thereof in 1922 by the board of directors. It is also well to observe that the sum of $8,000 representing the president's salary for 1921 was not recorded in the books of account until December 31, 1922, and, furthermore, that said entry was made in pursuance of the board's action at its meeting of January, 1922.
*215 We can not assume that, because these men were employed by the corporation and gave their time and services thereto, they were entitled to compensation therefor in the form of salaries. It would not be entirely illogical to assume on the contrary that they, as stockholders of the company, were content to receive their compensation in the form of dividends; consequently under the circumstances no salaries would be provided for. We do not say, of course, that any such arrangement existed here, but offer the suggestion simply to show why we can not assume that there was legal obligation*2110 to pay a salary in 1921 and, therefore, since we have found the amount to be reasonable, allow the deduction.
Had a showing been made by the petitioner that the stockholders and board of directors were the same or that the entire directorate was present at the stockholders' meeting of June 3, 1920, the issue urged may have presented other questions for consideration, but in view of the facts of record the respondent should be sustained in his disallowance of salaries of $10,000 for 1921.
With respect to the deduction for 1922, however, we entertain a different view. There may be some doubt due to the rather ambiguous wording of the resolution of the board of direcors of January 20, 1922, that it specifically fixed the salaries for 1922, but other factors are present evidencing the petitioner's salary policy for that year. The record shows that the entire treasurer's salary, amounting to $2,000, was paid to him in 1922, and, furthermore, that $7,100.09 of the total salary credited to the president in December, 1922, had already been paid to him when the said credit was placed upon the books of account. We, therefore, are of the opinion that the respondent erred in disallowing*2111 the salary deduction of $10,000 for 1922.
Judgment will be entered under Rule 50.