*2180 Where an individual acquires an interest in a partnership business and pays an amount for such interest in excess of the value of the tangibles, which amount is received by the seller for his own use and benefit and which is not used as a partnership asset, the individual making payment is not entitled to deduct from gross income in annual tax returns an aliquot part of such bonus.
*1193 These are proceedings for the redetermination of deficiencies in income tax for 1922 of $631.85 in the case of each petitioner. The question involved is whether the petitioners making returns on a community property basis are entitled to deduct from their gross incomes a pro rata part of a bonus of $37,500 paid to one Hugo V. Neuhaus for an interest in a partnership business conducted under the name of Neuhaus & Co. The facts have been stipulated.
FINDINGS OF FACT.
The petitioners, husband and wife, residents of Houston, Tex., filed separate returns under the community property laws of Texas. On January 1, 1920, George V. Rotan, and Hugo V. Neuhaus formed a partnership*2181 for a term of five years to conduct a general brokerage business under the firm name of Neuhaus & Co., this being a continuation of the business being conducted by Hugo V. Neuhaus, personally, for many years under the same name.
This partnership was provided for in agreements executed December 31, 1919, and June 30, 1920, which are as follows:
STATE OF TEXAS
COUNTY OF HARRIS.
KNOW ALL MEN BY THESE PRESENTS:
That this memorandum of agreement this day made and entered into by and between Hugo V. Neuhaus, of Harris County, Texas, and George V. Rotan, of McLenuan County, Texas.
WITNESSETH: The parties hereto, for and in consideration of the mutual obligations herein contained, have agreed to form a business partnership for the purpose of conducting a general brokerage business in the City of Houston, Harris County, Texas, to be a continuation of the present business of Neuhaus & Company and to be conducted in the name of Neuhaus & Company, upon and subject to the following terms, conditions and obligations herein contained of each respectively to the other: -
(a) The duration of this partnership shall be for a term of five (5) years and shall begin on the first day of*2182 January, 1920, and end on the 31st. day of December 1924.
(b) Each of the parties hereto shall give his entire time, attention and his best efforts to said business, - that is, to the business of said partnership, - with the view and purpose of bringing to said partnership the greatest success possible.
(c) Hugo V. Neuhaus shall put into the partnership One Hundred Thousand Dollars ($100,000.00), consisting of the present business equipment of Neuhaus & Company, accepted at its fair value, which has been agreed upon, and the additional amount to be paid in actual cash.
(d) The said George V. Rotan shall pay into said business Forty Thousand Dollars (40,000.00) in actual cash at the same time and shall pay to Hugo V. Neuhaus individually the sum of Thirty Thousand Dollars (30,000.00) for a *1194 two-sevenths (2/7) interest in the good will of said business of Neuhaus & Company, and upon such payments being made the said Hugo V. Neuhaus shall own and hold a five-sevenths (5/7) interest in said business and the said George V. Rotan shall own and hold a two-sevenths (2/7) interest in said business. All payments by each partner shall be made to the partnership on or before*2183 the first day of January 1920, and the payment of Rotan to Neuhaus shall also be made on or before said date.
(e) All profits and losses of said business, as between the partners, shall be distributed or divided and shared as between them, on the basis above stated: - that is, five-sevenths (5/7) to Hugo V. Neuhaus and two-sevenths (2/7) to George V. Rotan.
(f) Said partnership business shall pay to the said Hugo V. Neuhaus the sum of Nine Thousand Dollars ($9,000.00) per annum, the first year, and to George V. Rotan, the sum of Six Thousand Dollars ($6,000.00) per annum; these salaries, however, shall continue until changed by mutual consent; said payments to be made monthly to each partner, and the salary of neither partner shall be changed, except by mutual consent.
(g) Neither partner shall withdraw any cash from the business, except his monthly salary and expense account, if any allowed, except such distribution of profits as may be made by mutual agreement between the two partners. No distribution of profits shall be made until after such profits shall actually have been earned by the partnership. It is understood and agreed, however, that a distribution of profits*2184 so earned will be made at the request of either partner at least once in every period of six months.
(h) In the event of the death of George V. Rotan before the expiration of the partnership, it is agreed and understood that the estate of the said George V. Rotan, shall sell, and the said Hugo V. Neuhaus agrees to buy from said estate, and the right is hereby expressly granted to the said Hugo V. Neuhaus to take over said interest then held by the said estate of the said George V. Rotan in said partnership, for which interest the said Hugo V. Neuhaus hereby agrees, binds and obligates himself to pay to the estate of said George V. Rotan the book value of the two-sevenths (2/7) interest in said partnership owned by said George V. Rotan at the time of his death, and in addition to such payment of the book value for said two-sevenths (2/7) interest in said partnership, if the death of the said Rotan should occur during the year 1920 the said Neuhaus will pay the sum of Thirty Thousand Dollars (30,000.00) as a bonus or consideration for the interest of the said George V. Rotan in the good will of said partnership, and if the death of the said Rotan shall occur during the year 1921, *2185 the amount to be paid by said Neuhaus in addition to the book value of said two-sevenths (2/7) interest of said George V. Rotan shall be Twenty four Thousand Dollars ($24,000.00) and if such death should occur during 1922, said amount should be Eighteen Thousand Dollars ($18,000.00) and if during 1923, said amount should be Twelve Thousand Dollars ($12,000.00) and if during 1924, said amount should be Six Thousand Dollars ($6,000.00); in each case to be in addition to the book value of said two-sevenths (2/7) interest.
If the said George V. Rotan shall, during the term of the partnership, become disabled and thereby incapacitated from giving his active personal attention and all of his time to said business of said partnership, the said Hugo V. Neuhaus shall have, and is hereby given and granted the right, to purchase the two-sevenths (2/7) interest of said George V. Rotan in said business *1195 upon the same terms as hereinabove prescribed in case of the death of said George V. Rotan, and said Hugo V. Neuhaus hereby agrees, binds and obligates himself to so purchase and pay for such interest of the said George V. Rotan.
(i) Neitherparty hereto shall, during the continuance*2186 of this partnership, sell, assign, transfer, convey or in any manner pledge or encumber his interest in the partnership without the consent of the other party, and any such sale, assignment, transfer, pledge or encumbrance shall be utterly void as between the partners and may be wholly disregarded by the partner not assenting thereto and the non-assenting partner shall in no sense be bound thereby.
In case of disagreement between the partners during the period of the partnership and a demand by either for dissolution of the partnership, and in the event that the respective interests of the partners cannot be adjusted and separated by purchase or otherwise by agreement between them, the entire matter shall be submitted to arbitration, and the award of the arbitrators shall be binding on both parties, and shall be promptly performed by each. In the event dissolution is desired, disagreement had and arbitration demanded, the parties hereto shall agree upon an arbitrator, or arbitrators, to adjust their differences, and failing to agree, each party shall select one arbitrator, of which notice shall be promptly given to the other, and the two arbitrators so selected shall agree upon*2187 a third person, and the three so selected shall have full power to hear, determine and decide all matters submitted to them. They shall set a time and place for hearing, shall give reasonable notice to each side, and each side shall be given full opportunity to be heard, and thereupon the arbitrators shall make their award, any two concurring, and such award so made shall be final and binding upon both parties and shall be immediately performed by the parties hereto, each discharging whatever obligation such award may cast upon him.
It is especially agreed by and between the parties hereto that the right to buy the interest of the said George V. Rotan, in the event of his death or disability, on the terms and conditions hereinabove set forth, on the one hand, and the obligation of the said Hugo V. Neuhaus to purchase said interest in said partnership, in the event of the death or disability of said George V. Rotan, on the other hand, is a material and important consideration moving the parties hereto in making this agreement, and but for which right running to the said Neuhaus and but for such obligation on the part of said Neuhaus to the said Rotan, this contract would not be*2188 entered into.
The provisions of this contract and all of its privileges, rights, franchises and all of its obligations shall extend and inure to, or be imposed upon, as the case may be, the heirs, assigns and legal representatives of the respective parties hereto.
This agreement is executed in duplicate, each of which shall be considered an original for all purposes.
In testimony of all of which, witness our hands this 31st. day of December, A.D. 1919.
(Signed) HUGO V. NEUHAUS
(Signed) GEORGE V. ROTAN.
I. Hugo V. Neuhaus, acknowledge that specified payment has this day been duly received from George V. Rotan.JANUARY 2, 1920.
*1196 SUPPLEMENTARY AGREEMENT.
STATE OF TEXAS,
COUNTY OF HARRIS:
KNOW ALL MEN BY THESE PRESENTS: That this memorandum of agreement this day made and entered into by and between Hugo V. Neuhaus and George V. Rotan, both of Harris County, Texas:
WITNESSETH: 1. This agreement is supplemental to the original partnership agreement made and entered into by the respective parties hereto, under date of December 31st, 1919.
2. In consideration of the sum of $17,500.00 cash in hand paid by George V. Rotan to Hugo V. Neuhaus, receipt*2189 of which is hereby admitted, said Hugo V. Neuhaus has sold to said George V. Rotan an additional interest of one-fourteenth (1/14th) in the firm of Neuhaus & Co., making the respective interests of the partners now as follows: Hugo V. Neuhaus - nine fourteenths (9/14ths), George V. Rotan - five-fourteenths) (5/14ths). All profits and losses of said business shall hereafter be distributed or divided and shared between said partners on the basis above stated; that is, 9/14ths to Hugo V. Neuhaus and 5/14ths to George V. Rotan.
3. The terms of said original agreement of December 31st, 1919, shall not be changed or affected in any way by this supplementary agreement except as to the amount of the interests of the respective partners in the firm of Neuhaus & Co., but all the terms and conditions of said original agreement shall remain in full force and effect, and it is further expressly understood and agreed that all of said terms and conditions of said original agreement shall apply with respect to the additional one-fourteenth (1/14th) interest presently being acquired by said George V. Rotan, in the same manner and to the same effect as if said additional interest had been acquired*2190 on December 31st, 1919.
4. The sum of $17,500.00 so paid comprises $10,000.00 for the book value of 1/14th interest in said business, and $7,500.00 as a bonus or consideration paid by said George V. Rotan to said Hugo V. Neuhaus for said 1/14th interest in the good will of said partnership.
5. It is expressly understood and agreed between the parties hereto, in the event it be determined at some future date to admit a third partner, that each of the undersigned will sell to such third partner an equal interest in the firm, not exceeding 1/14th of the whole by each unless then otherwise agreed, and at such price as may at that time be mutually agreed upon as reasonable.
WITNESS OUR SIGNATURES AT HOUSTON, TEXAS, THIS JUNE 30TH, 1920.
(Signed) GEO V. ROTAN
(Signed) HUGO V. NEUHAUS.
In their income-tax returns for 1922, the petitioners each deducted from gross income $3,750 for the exhaustion of the bonus of $37,500 paid by the petitioners and received by Hugo V. Neuhaus. The respondent disallowed these deductions in the determination of the deficiencies.
OPINION.
SMITH: The only issue involved in these proceedings is whether the petitioners are each entitled*2191 to deduct $3,750 for the year 1920 which the petitioners claim as a return of capital from their share in the profits of the firm of Neuhaus & Co. for the year 1922, which deductions *1197 have been disallowed by the respondent in the determination of the deficiencies complained of.
The petitioners contend that they must rocover this capital payment of $37,500 from the receipt of their shares of partnership profits during the five-year period during which the partnership was to exist; that otherwise they will be taxed upon an amount in excess of their true incomes.
It is the contention of the petitioners that, under the laws of Texas, George V. Rotan did not acquire a property right in the good will of Neuhaus & Co. They base this contention upon Rice v. Angell,73 Tex. 350">73 Tex. 350; 11 S.W. 338">11 S.W. 338. The facts in that case are that one Rice, in 1884, paid $2,650 for a one-half interest in the general insurance agency of one Angell, which had theretofore been conducted under the name of C. E. Angell & Co.; that the insurance business was thereafter conducted under the firm name of Angell & Rice; that in December, 1886, a disagreement having arisen*2192 between the partners, Rice offered to sell his interest in the business to Angell for $5,000 or to pay Angell for his interest in the business $5,000; that Angell refused to pay any amount for Rice's interest and likewise refused to sell his interest but "took possession of all of the business of said partnership, and of its connections and good will, and entirely excluded plaintiff therefrom." Rice brought suit against Angell for the recovery of $5,000. The Supreme Court of Texas held, however, that he was not entitled to recover any amount from Angell. It was held that upon the dissolution of a partnership carrying on the business of an insurance agency in a firm name composed of the names of the partners, there is nothing left to which good will as a property right of the business can attach, as neither partner has the exclusive right to carry on the old business, but in the absence of stipulation each is left free to procure for himself alone the agency of the companies formerly represented by the firm.
The facts in the above entitled case are materially different from those which obtain in the proceedings at bar. There, a partnership business was conducted under a firm name*2193 in which the names of the partners appeared. In the instant proceeding the business was carried on under the name of "Neuhaus & Company" prior to the organization of the partnership and was continued under that name after the partnership was organized. Rotan paid a total of $87,500 for a 5/14 interest in the partnership. We can not doubt that the total investment by Rotan represented a capital investment. If the partnership had been dissolved prior to the expiration of the five-year period for which it was organized, Rotan would under the partnership agreement have been required to sell his interest to Neuhaus at a loss and such loss would clearly have been deductible from gross income in *1198 the year of sale. But the record does not disclose that Rotan sold his interest to Neuhaus during the five-year period and certainly there was no evidence of a sale during 1922. The good will of Neuhaus & Co. was inseparable from the business of Neuhaus & Co.Betts v. United States,62 Ct. Cls. 1; certiorari denied March 21, 1927. Throughout the year 1922, Rotan's share of the partnership profits was attributable in part to the good will of Neuhaus & Co., *2194 assuming that the good will had a value. Under the Revenue Act of 1921, in accordance with the provisions of which the petitioners made income-tax returns for 1922, the petitioners were required by section 218 to include in gross income their pro rata shares of the distributable profits of the partnership.
The petitioners have not in their brief pointed to any provision of the Revenue Act of 1921 which entitles them to any deduction for obsolescence of the amount of the bonus paid to Neuhaus from the value of their pro rata share of the tangibles. Section 214(a)(8) of the Revenue Act of 1921 permits an individual to deduct from gross income "a reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence." If the claim of the petitioner be predicated upon this provision of the statute, we think that it must be denied upon the authority of Red Wing Malting Co. v. Willcuts, 15 Fed.(2d) 626; certiorari denied, 273 U.S. 763">273 U.S. 763; *2195 Landsberger v. McLaughlin, 26 Fed.(2d) 77; Renziehausen v. Commissioner of Internal Revenue, 31 Fed.(2d) 675.
By the contracts of December 31, 1919, and June 30, 1920, Rotan acquired a 5/14 interest in the partnership of Neuhaus & Co. The contracts do not provide that upon the expiration of the five-year term Neuhaus shall be permitted to acquire Rotan's interest in the partnership assets for an amount equalling Rotan's interest in the tangibles. We can not assume that he had that right. Rotan had an ownership of a 5/14 interest in the good will of the partnership, which apparently would not be lost by the expiration of the term of the partnership.
The respondent has held that the entire payment of $37,500 by Rotan for an interest in the business constitutes a capital investment and that no loss in respect thereof is deductible from gross income until a loss has actually been sustained upon a sale or other disposition by Rotan of the interest in the partnership. I.T. 1892, C.B. III-I, p. 167. The action of the respondent in disallowing the deductions claimed by the petitioners in their income-tax returns for 1922 is sustained.
*2196 Judgment will be entered for the respondent.