*2349 1. Petitioner subleased certain property for a term of years and in addition to annual and other rentals received a bonus in the taxable year. Held that, as the petitioner was on the cash receipts and disbursements basis, such bonus was income in the year in which it was received.
2. Commission paid to secure a long-term lease is not an ordinary expense but is a capital expenditure ratably deductible from income over the term of the lease.
*696 The respondent has asserted a deficiency in income tax for the year 1925 in the amount of $1,950. For its causes of action the petitioner alleges:
(a) The failure of the Commissioner to exclude from gross income of the petitioner for the year 1925 a payment of $60,000 received as a deposit on a sublease beginning May 5, 1931; and
(b) The failure of the Commissioner to allow as a deduction from gross income for the year 1925 a commission in the amount of $15,000, paid out by the petitioner in that year.
The proceeding here involves a claim for refund in the event that the petitioner prevails and*2350 tax in the amount of $8,160.54 is in controversy. The parties filed a stipulation of facts which the Board accepted and from which is made the following findings of fact.
FINDINGS OF FACT.
The petitioner is a Missouri corporation. It was organized in 1908. Its principal office is in Kansas City, Mo. It is the owner of *697 a 99-year leasehold on a certain parcel of real estate located at 12th and Walnut Streets, Kansas City, Mo. In the taxable year it kept its accounts and made its Federal income-tax return on the cash receipts and disbursements basis.
On or about October 1, 1925, the petitioner subleased the above described property for a period of 64 years and 55 days, beginning May 5, 1931. Consideration for such sublease consisted of certain annual payments to the fee owner of the property, the payment of taxes, insurance and repairs, and the payment annually of certain amounts to the petitioner herein, concerning all of which there is no dispute.
Article VI of the sublease provides for additional consideration in the following terms:
In addition to the rent above provided for, the lessee agrees to pay to the Lessor herein a bonus of one Hundred Thousand*2351 Dollars ($100,000.00), payable as follows: Sixty Thousand Dollars ($60,000) concurrently with the execution hereof, receipt of which is acknowledged by the Lessor; Twenty Thousand Dollars ($20,000.00) March 1, 1928, and Twenty Thousand Dollars ($20,000.00) September 1, 1930. A failure to pay any installment of said bonus money within the time limit prescribed herein for the payment thereof shall be and constitute a breach hereof by the Lessee and subject this lease to forfeiture in the same manner and to the same extent as a breach for nonpayment of rent hereunder.
The parties agree that the bonus of $100,000 shall be regarded as additional rental for the period from May 5, 1931, to June 29, 1995, and that $60,000 thereof was received by the petitioner within the taxable year.
In the taxable year the petitioner paid the amount of $15,000 to the real estate agent who negotiated the sublease as a commission for services rendered in connection therewith.
In the determination of the deficiency here involved the Commissioner included the amount of $60,000 in the petitioner's gross income and disallowed the amount of $15,000 as an ordinary and necessary expense and held that such*2352 amount was a capital expenditure.
OPINION.
LANSDON: The petitioner contends as to its first allegation of error (1) that the amount of $60,000, received as set forth in our findings of fact above and which the parties agree was an advance payment of rental, should be prorated over the period from May 5, 1931, to June 29, 1995, and (2) that even if the whole amount is income at one time it is not taxable when received in 1925, but in 1931, when the term of the lease begins. As the petitioner keeps its books and returns its income on the cash receipts and disbursements *698 basis, it is clear that the amount here in controversy, if income within the meaning of the Constitution and taxing statutes, must be reported in the year in which it was received. In this proceeding there is no evidence that the $60,000 did not come into the undisputed possession and enjoyment of the petitioner in 1925. In , a similar situation was involved. In deciding that proceeding against the petitioner we said:
We know of no theory, or authority, by which petitioner's claim can be allowed. It is immaterial whether we call the $20,000 payment*2353 a bonus, additional rent payable in advance, or by any other term, it is a profit arising out of the transaction, to wit, the leasing of the property, and is taxable when received, as the petitioner was on the cash receipts and disbursements basis.
On the authority cited above, we hold that the $60,000 here involved was income taxable in 1925, the year in which it was received. See also ; ; ; ; and .
In conformity with out decision in , in which the principle in , was overruled, the second issue must be decided adversely to the petitioner. In , the court said:
The purpose of Sections 12(a) and 13(b) [Revenue Act of 1916] was to enable taxpayers to keep their books and make their returns according to scientific accounting principles, by charging against income earned during the taxable*2354 period, the expenses incurred in and properly attributable to the process of earning income during that period; * * *
It would appear from the above that expenses of the nature here in question may be deducted from income as it is earned. In this proceeding a reasonable deduction from gross income on such account in the taxable year should be in proportion to the stated payments due in that year, increased by the amount of $60,000, which we have held above was income received and taxable in the same year. See also ; and .
The Division report promulgated February 11, 1930, was thereafter, by direction of the Chairman, reviewed by the Board and is superseded by the present report.
Reviewed by the Board.
Decision will be entered under Rule 50.