*4255 1. Certain distributions made by a corporation, held to have been distributions of both profits and salaries.
2. Reasonable compensation of the general manager of a corporation determined.
*1260 This proceeding involves a redetermination of deficiencies in income and profits taxes for the years 1920 and 1921, in the respective amounts of $45,986.32 and $384.36. Petitioner assigns the following errors: (a) Refusal of respondent to allow as a deduction the compensation of its officers as fixed by its board of directors; (b) error in computing the net income of an affiliated corporation for the year 1920; (c) error in computing the consolidated net income of the affiliated corporations for the year 1920; (d) error in deducting from invested capital unpaid taxes of prior years; (e) refusal to allow the value of good will as claimed; and (f) error in determining the net income of the affiliated corporations for the year 1921. Petitioner has abandoned contentions (b), (c), (e), and (f), except in so far as these contentions are affected by*4256 contentions (a) and (d).
FINDINGS OF FACT.
Petitioner is a corporation, organized under the laws of New York, with its principal office at 767 Tenth Avenue, New York, N.Y. It was organized in 1902 with a capital stock of $25,000, divided into *1261 250 shares of the par value of $100 each. The corporation took over the business of Jacob H. Becker, who was a manufacturer of pianos. The stock was originally issued as follows: Jacob H. Becker, 240 shares; Phillipena Becker, wife of Jacob, 5 shares, and 5 shares were issued in the name of John McCormick. These persons constituted the first board of directors. Jacob H. Becker was elected president and general manager and John McCormick was elected secretary. In 1911, Rudolph C. Becker, a son of Jacob, was elected secretary. At the first meeting of the board the following resolutions were adopted:
Resolution made and carried at the meeting of the board of directors of Becker Bros., held at the office of Becker Bros., 527 Tenth Avenue, New York City, November, 1902. The president was authorized to act as general manager of the corporation in the management of its business; to make any and all contracts necessary in*4257 the management thereof; to discount any and all of the negotiable paper of said corporation; and given discretion to fix the price of sale and terms of sale of all pianos, and to make any and all contracts which he deems necessary, and which contracts shall stand as contracts of the corporation, unless expressly rescinded by the board of directors.
On the motion of John McCormick, it was ordered that the salary of Jacob H. Becker, as manager of the business, be fixed at 85 per cent of the net profits arising from the conduct of the business, as declared on December 31st of each year.
Carried; Jacob H. Becker not voting.
On the motion of Jacob H. Becker it was ordered that the salary of the secretary be fixed at 5 per cent of the net profits arising from the conduct of the business as declared on December 31st of each year.
Carried; John McCormick not voting.
These resolutions remained in full force from the date of their adopting in 1902, to and including the years involved in this proceeding. In 1920 Jacob H. Becker owned 94 per cent of the stock and the remainder of the stock was owned by his wife, children, and perhaps McCormick.
In 1902 the net profits of the*4258 corporation amounted to about $2,500, of which the general manager was entitled, under the above resolution, to about $2,000; in 1903 the surplus fund was $4,957; in 1904 it was $9,450; in 1905 it was $18,983; in 1906 it was $22,543; in 1907 it was $28,684; in 1908 it was $16,930; and in 1909 it was $33,258.
In 1920 the gross sales were $439,301.91; purchases $250,722.36; the opening inventory was $127,830.57; the closing inventory was $143,905.20; the cost of labor was $75,128.35; and the gross profit from sales was $129,525.83. During the year petitioner earned the following additional income: discounts, $4,449.54, and interest, $7,763.89. The gross profit for the year was $141,739.26. From this amount was deducted $47,914.33 representing bad debts, general expenses, insurance, rent, garage, office expenses, advertising and taxes. The net profit for the year was $93,824.93. Of this amount, *1262 85 per cent or $79,751.19 was credited as the salary of Jacob H. Becker as general manager, to an account entitled "Loan, J.H.B.," which represented the salaries of the general manager and of the secretary, and 5 per cent or $4,691.25 was credited to the same account as salary*4259 of Rudolph C. Becker as secretary. The remaining 10 per cent or $9,382.49 was carried as net earnings to profit and loss. The amounts so set apart to the general manager and to the secretary were never entirely drawn out but a large part thereof was allowed to remain and was used in the business. There was credited to this account on January 1, 1920, the sum of $333,037.64, and on December 31, 1920, the sum of $362,365.19. Of the withdrawals made during the year 1920 from this account, only $105.66 was withdrawn by or on account of Rudolph C. Becker.
Petitioner has never declared or paid a dividend. The capital stock and surplus for the year 1920, as shown by petitioner's books, were respectively $25,000 and $27,299.66.
From the year the corporation was organized, down to and through the years involved, Jacob H. Becker managed and controlled the business in the same manner as though he had personally owned it. He gave it all of his time and it was through his efforts that the business was brought up from its small beginning in 1902 to the condition in 1920 above set forth. The success of the business was attributable to him. He made all purchases, sales and contracts*4260 and personally supervised the factory which employed about 40 men.
The reasonable value of the services rendered by Jacob H. Becker, as general manager of petitioner, during the year 1920, and a reasonable allowance for salary to him that year, was $25,000. Respondent has allowed $10,000 for this item.
In computing the invested capital of petitioner and an affiliated corporation, for the year 1920, respondent reduced surplus by the amount of $10,266.33, representing unpaid additional taxes for the years 1917 and 1918, and by the further sum of $1,423.88, representing petitioner's tax liability for the year 1919, prorated quarterly.
OPINION.
STERNHAGEN: The only questions presented for decision are (1) whether the sum of $79,751.19 credited on petitioner's books to its general manager as salary for the year 1920, is a proper deduction as a reasonable allowance for his services, and if not, what is a proper allowance; and (2) whether certain unpaid additional taxes for prior years were property deductible from surplus in computing invested capital.
On the first question the parties, by stipulation, introduced in evidence the report of the case of *4261 . *1263 In that case the United States sued petitioner for certain excise taxes alleged to have been due under the Corporation Excise Tax Law of August 5, 1909. One of the questions involved was whether petitioner was entitled to deduct in each of the years from 1909 to 1914, inclusive, 85 per cent of its net income as salaries due its general manager under the resolution of its board of directors set forth in the findings of fact. The opinion contains the following, with reference to the proceedings in the District Court:
At the conclusion of the evidence, and upon consent of both sides, two questions were submitted to the jury, who rendered special verdicts with respect thereto. The questions submitted by the court were:
(1) "Q. Whether the resolution and subsequent conduct of the corporation were the means of distributing both salaries and profits?"
(2) "Q. What was the reasonable value of such service as Becker rendered to the company from 1909 to 1914, inclusive, and by that I mean, what would the company have to pay for a man of his (Becker's) general capacity to do what he did in the running*4262 of the business?"
The jury answered the first question in the affirmative, holding that the resolution relied upon by defendant was a means of distributing both salary and profits. In answer to the second question the jury found the reasonable value of the services of Becker to the corporation to be as follows: for 1909, $12,000; for 1910, $13,000; for 1911, $14,000; and for 1912, 1913, and 1914, $15,000 for each of said years.
A general verdict was thereupon directed by the court and judgment entered upon such general verdict. This judgment, except as to matters not material in this proceeding, was affirmed by the Circuit Court of Appeals of the Second Circuit. That decision construed and applied the resolution of petitioner's board of directors taken in connection with its subsequent course of conduct, and held that the amounts set apart to petitioner's general manager were distributions of both profits and income. We are of the same opinion.
From the very beginning Jacob H. Becker owned from 94 to 96 per cent of petitioner's capital stock and he and his wife and children at all times owned outright 245 shares, or 98 per cent thereof. The owner of the other 5 shares*4263 testified that he was "a nominal stockholder." The real stockholders were, therefore, Jacob Becker, his wife and children. In the 24 years elapsing between the organization of the corporation and the date of the hearing of this proceeding, the stockholders received only the amounts called salaries paid or credited under the resolution of the board of directors adopted in 1902. The corporation never declared or paid a dividend. These facts, with the further fact that 90 per cent of the net earnings were distributed to the stockholders in the guise of salaries, clearly indicate, and we so hold, that the distributions made under the resolution were both distributions of profits and salaries. We have before us no *1264 corporate action indicating what the board of directors deemed to be an adequate compensation for the services of the general manager. We must determine from the evidence what is reasonable compensation.
That the amounts set apart under the resolution were not reasonable allowance for the compensation of petitioner's officers is made evident from the following testimony of its bookkeeper and office manager:
Q. Do you know whether this fund was used as a*4264 fund for carrying on the business, do you know?
A. I know we needed that money in the business. We could not have run the business without it.
Although petitioner had before it for its guidance the opinion of the Circuit Court of Appeals, it introduced no evidence indicating "what the company would have to pay for a man of his (Becker's) general capacity, to do what he did in the running of the business." However, it appears from the report of the decision in Becker Brothers v.United States, that the jury found that a reasonable compensation for Becker's services as general manager was from $12,000 to $15,000 a year during the period from 1902 to 1914. We are of the opinion that the reasonable value of the services of Becker as general manager during the year 1920 was $25,000. This amount should be deducted in the determination of net income. The evidence is not sufficient to support any determination as to reasonable salary for 1921.
With respect to the petitioner's contention that its surplus should not be reduced by the amount of unpaid taxes for preceding years, respondent's action is sustained. Section 1207, Revenue Act of 1926. *4265 ; .
Judgment will be entered on 15 days' notice, under Rule 50.