*2443 The petitioner retired from active business in 1924. Since then he has paid annually as compensation to two of his employees who had been with him for a period of 30 years amounts approximating 50 per cent of the salaries received by them at the time of the discontinuance of his business. Held, the amounts paid in the taxable years 1925 and 1926 are not ordinary and necessary expenses deductible from gross income in the petitioner's tax returns for those years.
*251 This is a proceeding for the redetermination of deficiencies in income tax for 1925 and 1926 in the respective amounts of $355.69 and $338.08. The question in issue is the right of the petitioner, who retired from a dry goods business in 1924, to deduct from gross income in his income-tax returns for 1925 and 1926 certain pensions paid to two individuals who had been in his employ for a period of approximately 30 years.
FINDINGS OF FACT.
The petitioner is a resident of Montclair, N.J. For many years prior to 1925, he had been engaged in a dry goods business and had in his employ, *2444 among other employees, two who had served him for a period in excess of 30 years and up to the time when the petitioner retired from business in the early part of 1924.
During the period of his business activity the petitioner had accumulated substantial capital funds and has since lived principally upon the income of the capital so accumulated. Upon his retirement in 1924, he agreed to give to these employees as compensation *252 amounts equaling approximately 50 per cent of the salaries which they were receiving at the date of his retirement. Since April 1, 1924, he has paid to one of the employees, a brother, a socalled pension of $150 per month, and to the other, an elderly woman, a pension of $40 per month.
In petitioner's income-tax returns for 1925 and 1926, the payments of $2,280 annually to the employees above referred to were claimed as deductions from gross income. The deductions were disallowed by the Commissioner and as a result thereof the deficiencies involved in this proceeding were determined.
The recipients of the pensions have always regarded them as compensation and not as gifts and have included them among taxable income in their individual tax*2445 returns.
OPINION.
SMITH: The single question presented by this proceeding is whether the petitioner is entitled to deduct from gross income in his tax returns for 1925 and 1926, $2,280 paid in each year to two employees who had been in his service during practically his entire business career. The respondent disallowed the deductions upon the ground that the petitioner was not in business during the taxable year and was under no obligation to pay the amounts in controversy and that the payments constituted gifts to the employees or were in the nature of personal expenditures.
Section 214(a)(1) of the Revenue Act of 1926 provides in part as follows:
(a) In computing net income there shall be allowed as deductions:
(1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * *
The evidence of record indicates that the petitioner was under no legal obligation to make the payments to the two employees in question, but that he had sold out his business at a good profit and voluntarily decided to pension*2446 these employees. We are of the opinion that they are not to be regarded as pensions paid by a going business, which are deductible from gross income as ordinary and necessary expenses.
Reviewed by the Board.
Judgment will be entered for the respondent.