*3928 1. DEDUCTION FOR BAD DEBT. - Held, that the facts establish the debt charged off by petitioner in August, 1920, was ascertained to be worthless during the fiscal year ending August 31, 1920, and should be allowed as a deduction for that year under section 234(a)(5) of the Revenue Act of 1918.
2. DECUCTION FOR NET LOSS. - Petitioner sustained a net loss in the conduct of its business regularly carried on for its fiscal year beginning September 1, 1918, and ending August 31, 1919. Held, that it is not entitled to relief under section 204(b) of the Revenue Act of 1918.
*1248 This proceeding arises from the determination by the Commissioner of a deficiency in income and profits tax in the amount of
2. DEDUCTION FOR NET LOSS. - Petitioner sustained a net loss in
Petitioner alleges that the Commissioner erred:
(1) In disallowing a deduction for the year ending August 31, 1920, of the sum of $70,914.97, as a bad debt charged off its books on August 20, 1920, and alleged to have been ascertained to be worthless at that time; and
(2) *3929 In disallowing a deduction for the same year of the sum of $21,962.98, representing ten-twelfths of petitioner's net loss during its fiscal year ending August 31, 1919, there having been no net income in the preceding taxable year.
*1249 FINDINGS OF FACT.
Petitioner is a California corporation which for many years has been engaged in the wholesale produce business, with its principal office at Sacramento. For about the past twenty-five years petitioner has closed its books on August 31 of each year because it has the least amount of produce on hand at that time of the year.
On August 15, 1917, petitioner entered into an oral contract with H. B. Tabb of Idaho Falls, Idaho, under the terms of which Tabb was to purchase potatoes for the petitioner in the State of Idaho with funds supplied by the latter. It was a joint enterprise and the profits and losses were to be divided equally between Tabb and petitioner. That agreement was terminated on August 8, 1919, after the venture resulted in losses. Tabb's share of the losses amounted to $14,452.04 for the year ending August, 1918, and $67,885.83 for the year ending August, 1919, or a total of $82,337.87, which was charged*3930 to Tabb's personal account with petitioner. On August 8, 1919, Tabb executed two promissory notes for the respective amounts, payable to petitioner one day after date, with interest from date, at the rate of 7 per cent per annum. The notes were taken by petitioner without any security, merely as evidence of the indebtedness. The two notes were not entered upon petitioner's books.
Due to the fact that Tabb was familiar with petitioner's business, its officers thought it advisable to continue the relations with Tabb with the hope of recouping some or all of its losses. Accordingly, on August 8, 1919, petitioner entered into a written agreement with Tabb under the same terms as existed under the oral agreement and Tabb was to give his entire time to the business of buying and loading potatoes in Idaho. Tabb failed to carry out the terms of his contract by operating for other persons. The season of 1919 and 1920 was a very good potato year, but due to the failure of Tabb to devote his entire time to petitioner's business, only small profits were realized from that source. Tabb went to Sacramento in June, 1920, and the question of his ability to pay his debt to petitioner was*3931 considered very carefully by petitioner's officers. Tabb had an equity of $1,000 in his home which was exempt; a touring car worth $500; an alleged equity of $5,000 in a Delco lighting plant, which he had hypothecated for $3,000, and his permit under a contract with the Delco concern had been canceled; and an interest in an old mine which had been abandoned for years.
As was customary, petitioner's officers went over its accounts receivable in August, 1920, for the purpose of ascertaining what accounts should be charged off as bad and uncollectible. About thirty-five accounts receivable, including Tabb's account, were ascertained to be worthless and charged off to profit and loss. Tabb's indebtedness *1250 which at that time, amounted to $70,714.97, was charged off on August 20, 1920, and petitioner has never collected any portion of said indebtedness.
In August, 1920, petitioner owned warehouse properties at various points in Idaho and also had numerous accounts receivable from persons in that State. It was necessary for petitioner to preserve its assets in Idaho and after careful consideration of the proposition concluded it was necessary to employ Tabb for that*3932 purpose, inasmuch as he knew all of petitioner's customers and was familiar with petitioner's business. Pursuant to that conclusion, petitioner entered into a written contract with Tabb in August, 1920, whereby Tabb became petitioner's agent; he handled no money and acted only upon instructions from petitioner. That contract was terminated in 1922, at which time petitioner prosecuted Tabb for embezzlement, after he had sold on his own account potatoes purchased with petitioner's funds and stored in petitioner's warehouses.
In 1920 petitioner borrowed funds from the National Bank of D. O. Mills & Co., of Sacramento, Calif., and in its financial statement submitted to the bank on September 1, 1920, there was included in assets, accounts receivable good, due from customers in the amount of $305,825.07, but Tabb's account had been written off prior thereto and was not included in the accounts receivable in the said financial statement.
Petitioner deducted $70,714.97 from gross income for the year ending August 31, 1920, as a bad debt, and the Commissioner disallowed the deduction claiming that the debt could not be ascertained to be worthless until 1922. The Commissioner allowed*3933 the deduction in 1922, in which year petitioner sustained a net loss.
For the fiscal year ending August 31, 1918, petitioner had not net income. For the fiscal year September 1, 1918, to August 31, 1919, petitioner returned a net loss in the amount of $26,355.58 in the operation of its regular business and, in its income-tax return for the fiscal year ending August 31, 1920, it deducted as a net loss under section 204(b) of the Revenue Act of 1918, the amount of $21,962.98, or ten-twelfths of $26,355.58, representing net loss from November 1, 1918, to August 31, 1919. The Commissioner disallowed the said deduction of $21,962.98, on the ground that section 204(b) provides only for a net loss for a full twelve months' period beginning after October 31, 1918, and ending prior to January 1, 1920.
OPINION.
TRUSSELL: As to the first issue the Commissioner in his answer admitted that Tabb's debt to petitioner amounted to $70,914.97 on August 20, 1920, and that the said debt was charged off by petitioner *1251 on that date. The only question remaining for solution is one of fact, namely, did petitioner ascertain Tabb's debt to be worthless during the fiscal year ending August 31, 1920?
*3934 In June, 1920, toward the end of the potato year 1919-1920, the officers and directors of petitioner went into the matter of Tabb's financial condition and found that Tabb had practically no property and could not pay his debts. Upon their sound business judgment petitioner's officers and directors concluded that Tabb's debt was worthless, that it should not be carried on the books as an asset, and that the whole debt should be charged to profit and loss. Accordingly, on August 20, 1920, Tabb's debt was charged off, together with other debts ascertained to be worthless. The Commissioner claims that due to the fact that petitioner continued its business relations with Tabb until 1922, it could not ascertain the debt to be worthless until that year. We do not agree with the Commissioner. Prior to about June or July, 1920, Tabb and petitioner had been engaged in a business venture with profits and losses to be divided equally. That venture was terminated in or about June or July, 1920, after Tabb had breached his contract and petitioner had sustained all the losses. Petitioner took Tabb's notes merely as evidence of the indebtedness. Subsequent to August, 1920, until 1922, *3935 petitioner employed Tabb merely as its agent to look after its property in Idaho, and if it had any hope of recovering any portion of Tabb's debt, such hope was very remote.
Upon the facts in this record we may reach only one conclusion of fact and that is that petitioner actually ascertained Tabb's debt to be worthless during the fiscal year ending August 31, 1920, the year in which it was charged off. In addition to any bad debt deductions already allowed by the Commissioner, petitioner is entitled to a deduction in the amount of $70,914.97, as a bad debt under the provisions of section 234(a)(5) of the Revenue Act of 1918.
The second issue presented in this proceeding involves the question of whether petitioner is entitled to the deduction of ten-twelfths of its net loss sustained from the operation of its business regularly carried on for its fiscal year ending August 31, 1919, in computing its net income for the fiscal year ending August 31, 1920, within the meaning of section 204(b) of the Revenue Act of 1918, which provides:
If for any taxable year beginning after October 31, 1918, and ending prior to January 1, 1920, * * * any taxpayer has sustained a net loss, *3936 the amount of such net loss shall * * * be deducted from the net income of the taxpayer for the preceding taxable year; * * * If such net loss is in excess of the net income for such preceding taxable year, the amount of such excess shall * * * be allowed as a deduction in computing the net income for the succeeding taxable year. (Italics ours.)
*1252 The relief provisions of section 204 of the Revenue Act of 1918 are emergency provisions inserted in that Act by Congress for the purpose of caring for a period of deflation following the sudden termination of the World War. Congress specifically limited that relief to the period of time which it thought would be the transition period, namely, "beginning after October 31, 1918, and ending prior to January 1, 1920." That designated period of time was intended to care for the calendar year 1919, and also any fiscal year beginning and ending within said fourteen months' period, and it is clear that the relief granted by section 204 of the 1918 Act may be extended only to those taxpayers whose taxable year 1919 falls within the designated period. The opinion of the Board in *3937 , contains quotations from the Congressional Record showing the intent of Congress in enacting section 204 of the Revenue Act of 1918. The provisions of section 204 of the Revenue Act of 1921, have no application in the construction of section 204 of the Revenue Act of 1918. .
This petitioner's fiscal year 1919 began September 1, 1918, prior to the period designated by the special relief provisions of section 204 of the 1918 Act. The petitioner sustained a net loss for a twelve months' taxable year which falls without the definite designated period "beginning after October 31, 1918, and ending prior to January 1, 1920," as provided in the said section 204(b), and we are of the opinion that petitioner is not entitled to relief under that section. There is no provision in the Revenue Act for the proration of a loss over segregated portions of an accounting period as this petitioner has attempted to do.
Judgment will be entered upon 20 days' notice, pursuant to Rule 50.