*3022 Held, on the evidence, that so-called interest payments on individual profits were in fact distributions of profits.
*158 This is a proceeding for the redetermination of deficiencies in income and profits taxes for 1920 and 1921 in the amounts of $1,418.48 and $114.18, respectively.
The error assigned for each of the years is that the respondent erroneously disallowed deductions claimed on account of amounts paid to stockholders as interest on undivided profits which the petitioner claimed were additional compensation to officers for the years involved.
FINDINGS OF FACT.
The petitioner corporation had undivided profits on hand in the amount of $28,275.70 on January 1, 1917. On the 26th of May, 1917, at a directors' meeting the following resolution was adopted:
Present:
L. C. Wiswell, Pres. H. B. Hopkins, Treas. G. B. Wiswell, Sec.Regularly moved and seconded that reading of the minutes of last meeting be dispensed with.
New business.
Hopkins presented the following resolution and moved its adoption. Seconded by G. B. Wiswell. *3023 Carried.
WHEREAS, on Jan. 1st, 1917 there was in undivided profits $28,275.70, and
WHEREAS, is being used in the promotion of the business in lieu of borrowing like amount for such purposes, and
WHEREAS, it is right and proper business procedure to charge interest (Legal Rate) on undivided profits used in the necessary promotion and enlargement of the business, the same as it is necessary to pay if like amount of money was borrowed to promote the business,
THEREFORE BE IT RESOLVED, That we make a charge for interest (rate 6%) on the undivided profits used in the business, amount as shown in books as of Jan. 1st, 1917 viz. $28,275.70, and further,
BE IT RESOLVED, That interest be due and payable triannually (every four months) namely April 30th, August 31st, and Dec. 31st, and further,
BE IT RESOLVED, That the same rate of interest be charged on undivided profits amounts as shown by the Auditor's report each year.
Hopkins moved a dividend of 10% be declared on paid in capital stock as of May 1st, 1917, seconded by L. G. Wiswell. Carried.
There being no further business said meeting duly adjourned.
*159 For the year 1920 the respondent disallowed as a deduction*3024 an item of $3,186.41 designated as "interest on undivided profits," and for the year 1921 the respondent disallowed as a deduction $1,630 as "interest on undivided profits," both deductions having been upon the ground that "interest on undivided profits paid to stockholders is in the nature of dividends and is not a permissible deduction from gross income."
The salaries paid for 1917 were in the sum of $7,080.33, for the year 1920, $14,820, for the year 1921, $15,690. The gross sales for 1920 were $148,942.40. The gross profits for that year were $54,637.07. The net profits per books were $11,310.28. The net profits before the deduction of officers' salaries were $26,130.28
For the year 1921, the gross sales were $118,617.04. The gross profits were $43,322.61. The net profit per books was $11,002.98. The net profits before the deduction of officers' salaries were $16,792.98.
For 1921 the amount of $16,792.98 represents the amount of net profit with the so-called item of interest added, that is, without giving credit for a deduction of that amount.
The amounts paid as interest on the undivided profits constituted a distribution of profits.
OPINION.
TRAMMELL: It*3025 was contended by the petitioner that the amounts paid as interest on the undivided profits were in fact compensation paid for services rendered and was reasonable in amount. The respondent determined that the amounts were in fact distributions of profits.
The testimony before us is very meagre. There was testimony offered to the effect that the directors intended the amounts designated as interest to be in fact compensation for services. This theory is entirely inconsistent with the action of the corporation as shown by the minutes of the directors' meeting and is inconsistent with the action of the corporation as shown by its books. There is no evidence to show who the officers were who received the so-called compensation, how many officers the corporation had, the nature of the services performed, what portion of the time of the officers was devoted to the business, or other pertinent facts from which we could determine whether the amounts were compensation for services. The mere book figures alone as to gross sales, gross profits and net income are not sufficient on this question. They do not, in the first place, indicate whether the amounts involved compensation at all*3026 or, if so, whether they were reasonable. The evidence is insufficient to overcome the presumption of the correctness of the action of *160 the respondent in disallowing the deductions claimed as being distributions of profits.
If, however, as contended by the petitioner in his brief, the amounts were actually paid as interest, they would be allowable as interest deductions. However, from the facts we can not reach the conclusion that the amounts were actually interest. There was no obligation on the part of the corporation to pay interest to stockholders upon undivided profits. Undivided profits do not belong to the stockholders until they are actually distributed in the form of dividends and we can reach no other conclusion but that the amounts were distributions of profits as determined by the respondent.
Judgment will be entered for the respondent.