*1952 The amount of additional salaries for services performed in 1918 is not allowable as a deduction from income for 1918 where the liability to pay the salary was not incurred until after 1918.
*1201 The Commissioner determined a deficiency in the petitioner's income and excess-profits taxes for the calendar year 1918 in the amount of $7,944.57. The Commissioner has admitted error in determining a portion of the deficiency, and only the amount of $6,058.53 is in controversy. The petitioner alleges that the Commissioner erred in disallowing the deduction of $12,500 additional salaries of officers for 1918.
FINDINGS OF FACT.
The petitioner was incorporated on or about October 1, 1890, under the laws of Indiana, and has its principal office at Jonesboro, Ind. During the year under consideration A. F. Seiberling was president and superintendent, and R. W. Seiberling was secretary and general manager of the petitioner. The board of directors of the petitioner during the year 1918 was composed of seven individuals, including*1953 the two Seiberlings. The board met regularly four times each year, *1202 in January, April, July, and October. The salaries of officers were usually fixed at the annual meeting in January, and the salaries of the two Seiberlings were fixed at $3,750 each for the year 1918 at the annual meeting in January, 1918.
Five of the directors were active in the petitioner's business and four of these were located at Jonesboro or nearby. The directors frequently discussed the affairs of the corporation informally and sometimes took needed action upon the agreement of several directors, subsequently obtaining the approval of the other directors. The petitioner did an abnormally large volume of business for the year 1918, and had larger profits during that year than in other years. Sometime in September, 1918, some of the directors informally discussed the salaries of the two Seiberlings and decided that the salaries of these officers should be increased to $10,000 in January, 1919.
A regular meeting of the board of directors of the petitioner was held on October 29, 1918, at which no action was taken regarding increased salaries of officers. At the annual meeting of the board*1954 of directors on January 28, 1919, $10,000 was fixed as salary for each of the two Seiberlings for the year 1919, and the following resolution was adopted:
Whereas, it is now apparent that the salaries of Mr. A. F. Seiberling, President and Superintendent, and Mr. R. W. Seiberling, Secretary and General Manager of this Company, as fixed at $3750.00 each at a meeting of the Directors held on January 22, 1918, are inadequate for the services rendered, and
Whereas, on January 22, 1918, it was impossible for the Directors to take into consideration the greatly increased responsibilities and duties which came to the said officers during the year 1918 because of the enlargement of the business and the fact that the plant was run practically double time during said year, and
Whereas, each of said officers named in reality did the active service of two positions, and
Whereas, it would probably cause a great loss in efficiency of this organization were either or both of said officers to accept similar position elsewhere.
Be it Resolved, that additional salaries be paid said officers from the 1918 earnings for such additional duties performed, up to an amount commensurate with salaries*1955 paid for similar services and responsibilities by other manufacturing institutions having somewhat similar condition and volume of business. To this end be it further
Resolved, that Mr. A. F. Seiberling be and he is hereby granted and the Treasurer is authorized to pay to him the sum of $6250.00, as additional compensation for services rendered in 1918, to be paid from 1918 earnings of the company, and charged as an expense for said year, 1918, and
Resolved, that Mr. R. W. Seiberling be and he is hereby granted and the Treasurer is authorized to pay to him the sum of $6250.00 as additional compensation for services rendered in 1918 to be paid from 1918 earnings of the company and charged as an expense for said year 1918.
*1203 The petitioner's books and accounts were kept on an accrual basis and for the calendar year. No entry covering any additional salaries for 1918 was made in the petitioner's books until February or March, 1919. The amount of additional salaries for 1918 was neither credited to the drawing accounts of the two Seiberlings nor received by them during the year 1918.
The Commissioner disallowed the deduction for 1918 of the increased salaries amounting*1956 to $12,500, and made the following explanation in the deficiency notice:
Inasmuch as the salaries were not authorized until the books had been closed, it is held that the amount claimed as a deduction is not an allowable deduction from gross income.
OPINION.
MURDOCK: The petitioner has proceeded in this case as if the respondent conceded that the salaries in question were reasonable compensation for personal services actually rendered, and only challenged the deduction on the ground that no liability for the additional salary was incurred during the year 1918. The record does not show that the respondent ever conceded the first point, and any such concession in this case depends entirely upon whether or not such an inference is to be drawn from the explanation which he made in the deficiency notice. We think not, but our decision is based upon another point.
If the petitioner did not incur during the year 1918 a liability for the payment of the additional salaries in question, the determination of the Commissioner is correct. *1957 . In the above case a statement was made which applies equally well in the present case:
We have repeatedly held that a corporation may be bound by the informal action of its board of directors, but in order for the corporation to be so bound, it must affirmatively appear that definite action was in fact taken.
The petitioner contends that the additional salaries were authorized at an informal meeting of several of its directors in September, 1918. There were seven of these directors, two of whom are now dead. Two of the remaining five were called as the only witnesses in the case. R. W. Seiberling, whose salary is in controversy, was one of these two witnesses. The testimony in regard to the time that the meeting was held, the number and identity of the directors present, the discussion which took place, and the decision reached is vague and unconvincing. It is clear enough that there was some discussion among some of the directors about the salaries of the two Seiberlings, and it also appears that the consensus in these discussions was *1204 that the salaries of these two men should be increased on account of the*1958 increased business and earnings of the corporation. It further appears that at some time, after a director by the name of Schwartz had been heard from, the amount of $10,000 was selected as a proper total compensation for each. However, it does not appear that Schwartz attended the informal meeting in September, 1918. Seiberling testified as follows:
Mr. Schwartz was the manager of our Chicago sales branch and I would say at that time he probably averaged two trips a month to the factory. This meeting would probably be held, and I should say it was on the occasion of one of those visits that Mr. Schwartz appeared. If it was held at such time, then he surely was there, and it was at that meeting it was decided definitely that our salary should be increased in January, that is the following January.
He further testified that it was decided in September that these salaries would be adjusted in January of 1919, effective in January of 1919. That is quite a different thing from authorizing the salaries in 1918. It does not appear that the absent directors ever knew of the September discussion or signified their approval of any decision others may have reached.
Following the*1959 informal meeting of September, 1918, there was a regular meeting of the board of directors on October 29, 1918, at which no action was taken regarding increased salaries. The resolution of the board of directors adopted at their meeting in January, 1919, makes no reference to any previous action. We are not convinced from the testimony that there was any action taken in 1918 from which the petitioner incurred any liability for the additional salaries. ; . Cf. .
Judgment will be entered under Rule 50.