*1711 1. Payment to a cooperative advertising agency allowed as a business expense.
2. Pro rata payment by taxpayer on account of attorney fees and court costs, incurred in connection with a lawsuit in which taxpayer and others were defendants, allowed as a deduction.
*14 Redetermination is asked of a deficiency of $3,069.01 for the year 1925. Petitioner also claims an additional amount of $2,488.49 alleged by it to be refundable. Two errors are specified:
(1) Disallowance of a deduction of $2,500 paid by petitioner to Californians, Inc., and claimed as an ordinary and necessary business expense.
*15 (2) Disallowance of a deduction of $40,250 paid to American Factors, Ltd., as petitioner's pro rata share of certain legal fees incurred in connection with a lawsuit.
FINDINGS OF FACT.
Petitioner is a California corporation engaged principally in the operation of ocean-going ships between Pacific ports of the United States and Hawaii and the Orient, but also having other large*1712 business activities and investments. In 1925 its ships carried approximately 15,000 out of a total of 18,000 passengers between San Francisco and Hawaii. These passengers came from all parts of the United States and 33 per cent came from States other than California.
During the year 1925 petitioner made a payment of $2,500 to Californians, Inc., a corporation not formed for profit. In order to obtain petitioner's subscription Californians, Inc., represented to petitioner that it had a cooperative advertising program especially directed to the interests of northern California, with the primary purpose of promoting the business of its contributors. Its purposes are announced in its articles of incorporation to be:
* * * to publish authentic information regarding the resources, opportunities and attractions of California; to provide a service of advice and direction and assistance to persons desiring to visit or settle within the boundaries of California; to participate in activities for the development of California; to cooperate with other communities by initiating or assisting similar activities in the interests of the Pacific Coast; to do all acts and things necessary or*1713 convenient in furthering the purposes hereinabove set forth.
The corporation pursued these purposes during the taxable year by the collection and dissemination of data as to the resources, climate, business opportunities and other advantages of the State of California. It furnished a large amount of copy to various publications of national circulation; sent appropriate literature to prospective tourists; and made personal inquiry of thousands of tourists to determine the effectiveness of the advertising. By an extensive survey it learned that one person out of every ten who visited California as a tourist returned to make it a permanent home.
In the course of its advertising Californians, Inc., published many pictures of petitioner's ships in harbors, referring to them by name and giving the name of the owner. In such publicity it urged the convenience and desirability of ocean trips from San Francisco to Hawaii and the Orient and pointed to the vast undeveloped business opportunities in those sections. Californians, Inc., made checks of tourist trade through the records of steamship companies, railroad companies, the State Department of Agriculture, and the Bureau of Motor*1714 Vehicles, as well as on highways entering California, and furnished many data and inquiries from prospective tourists to petitioner. Had petitioner not made a contribution, Californians, *16 Inc., would not have featured petitioner's activities and facilities. Inquiries from prospective tourists were not referred to other noncontributing steamship companies.
During 1925 the total expenses of Californians, Inc., were $313,333.11. It never paid any dividends and depended entirely on subscriptions of the business interests for funds with which to carry on its advertising program. It spent substantially all of each year's contributions during the then current year.
During 1925 petitioner paid $40,250 to American Factors, Ltd., as its pro rata share in a group of stockholders in American Factors, Ltd., on account of counsel fees and expenses incurred in defense of certain litigation brought against said group of stockholders. The payment of the fees and expenses was made by American Factors, Ltd., and reimbursement was made by the several stockholders.
At the time of the entrance of the United States into the World War certain German interests, known as H. Hackfeld*1715 & Company, owned and operated extensive sugar plantations in Hawaii. This property was seized by the Alien Property Custodian. In 1918 a corporation known as American Factors, Ltd., was organized to buy the property of H. Hackfeld & Company. Twenty-four of the large sugar houses and corporations subscribed for one-half of the stock, petitioner purchasing 2,300 shares, or approximately 5 per cent of the whole of the corporate issue, at $150 per share. The remaining 50 per cent of the stock was offered to and purchased by the public generally, being taken by some 600 subscribers. The new corporation operated the properties without difficulty until 1924, when one J. C. Isenberg and others, as plaintiffs, brought suit against George Sherman and 23 others, including petitioner, as defendants, alleging a conspiracy among the defendants as a result of which the assets of H. Hackfeld & Company had been sold for a grossly inadequate price, $7,500,000, it being alleged they were worth $17,500,000. Wherefore, plaintiffs prayed judgment for $10,000,000 against the defendants. The suit was an action in tort for damages directed solely against the 24 subscribers to the original one-helf of*1716 the stock. The 600 general subscribers were not named. The sale was affirmed and damages asked.
The suit was tried in San Francisco and resulted in a judgment for the defendants, the court finding there was no fraud, actual or constructive, and that the price was adequate. This decision was sustained by the Supreme Court of California in a decision rendered April 30, 1931. The trial of the action consumed approximately eighteen months of actual participation in court proceedings.
After the suit was commenced the 24 defendants met and agreed to make one unified defense, to employ counsel and to prorate the expenses of such defense among them in proportion to their holdings. *17 The stockholders who were not named defendants did not join in the defense.
Petitioner received and paid statements of its proportionate share of the expenses incurred, such payments in 1925 amounting to $40,250. The actual checks were drawn payable to American Factors, Ltd., which corporation in turn paid the accounts rendered to it on account of the counsel fees and litigation expenses. American Factors, Ltd., as a corporation, paid no part of the expenses. No items of any kind except*1717 those growing out of the litigation were paid from the funds so paid by petitioner and the other defendants. The total so paid by the 24 defendants amounted to $405,058.16 on December 11, 1925.
Petitioner has not been reimbursed in any way or in any amount on account of the $40,250 so expended.
OPINION.
VAN FOSSAN: Early in the experience of the Board, in , the fundamental proposition was announced that "to be deductible as a business expense, a contribution, charitable or otherwise, must have in a direct sense some reasonable relation to the business of the taxpayer." This test of the law has been uniformly applied throughout all succeeding cases and should be followed here in passing on the allowability of the contribution to Californians, Inc.
The evidence shows that Californians, Inc., was a nonprofit corporation pursuing the primary purpose of cooperatively advertising the advantages of California. It requires no demonstration other than the statement of the fact that the growth of a State or community is not an abstract thing. It is but the collective growth of the people and industries resident in the State. As the*1718 individuals and industries of the State expand, so the State grows. It is also easily demonstrable by experience that an individual activity is more likely to succeed if located in an aggressive and successful community. Thus it might with considerable weight be argued that petitioner would be fully justified as a business proposition in contributing to a cooperative advertising program such as that of Californians, Inc., even though it was unable to point to concrete monetary results. Here petitioner can go much further. The program here in question included direct presentation of petitioner's facilities by pictures and written articles urging travel to Hawaii. Californians, Inc., collected various valuable data and received many inquiries in response to its publicity in reference to ocean travel which were handed to petitioner. These inquiries resulted directly in increased business for petitioner. Petitioner's business was peculiarly adapted to provide effective travel advertising of the kind featured. Had petitioner *18 not been a contributor it would not have received the direct advertising, nor would it have been furnished with the travel inquiries and other data. *1719 We are convinced that petitioner's contribution was motivated primarily by business consideration; that it received definite tangible advantages therefrom; and that it was by every test a proper business expense. .
The second item in controversy is the payment made to American Factors, Ltd., as petitioner's share of attorney fees and court costs incurred in defending a suit in tort charging fraud and asking damages in the sum of $10,000,000 in connection with the purchase of certain German-owned sugar interests in Hawaii. The defense was entirely successful and defendants' judgment was affirmed by the Supreme Court of California. We believe the facts bring this item clearly within the scope of ordinary and necessary business expenses. See ; ; ; .
Judgment will be entered under Rule 50.