*2210 1. Commissioner approved in disallowing the deduction of certain expenditures claimed to have been ordinary and necessary expenses.
2. Where the petitioner has failed to prove that cash or other property was not unqualifiedly made subject to his demand in the year 1921, the Commissioner's action in including in income of 1921 certain dividends actually received in 1922 is approved.
*976 The Commissioner determined a deficiency in income taxes for the calendar year 1921 in the amount of $4,797.78.
*977 The petitioner alleges that the Commissioner erred in failing (1) to allow as a deduction $2,752.95 expended by the petitioner in the year 1921 for traveling expenses, and (2) to exclude from the petitioner's taxable income a certain dividend of $32,900 declared by the Hiram Oil & Gas Co. on or about May 17, 1921, and not received by the petitioner until the year 1922.
FINDINGS OF FACT.
The petitioner is an individual residing at Tulsa, Okla. He was engaged in drilling oil wells, and either in his individual capacity or in partnership*2211 with another, had from three to five strings of drilling tools in operation during the taxable year. At some time either before the beginning of the taxable year or during the taxable year he gave a man named Wierough a one-fourth interest in certain of his drilling tools. The drilling of each well resulted in a profit. The partnership of Wilson and Wierough made a partnership return for the year 1921, but the petitioner claimed certain drilling expenses as deductions on his personal income-tax return for the year 1921.
The operation of each string of tools required a crew of four men besides the services of roustabouts, pumpers, teamsters and others. In 1921 the petitioner lived about four miles south of Kellyville, Okla. During that year, either in his individual capacity or in partnership with Wierough, he drilled wells around Bristow, Depew, Kellyville, and Cowetta. The latter wells were about sixty miles from Kellyville. It was necessary for the petitioner to visit each of these wells frequently. Some of the wells he visited every day during drilling operations, but those near Cowetta he did not visit that often. He supervised the work of the various crews personally. *2212 It was frequently necessary to take men from one job to another and in doing this he used his own Studebaker automobile. While traveling with employees he paid their expenses, including board and lodging while away from home. In the course of his business he had to make visits to Bristow, Tulsa, Sapulpa, and Muskogee for supplies. On the average he traveled about one hundred miles per day throughout the year. Wierough was a driller and did not attend to paying expenses and did not provide any money for the business.
During the year 1921 the petitioner was president of the Hiram Oil & Gas Co., and Oklahoma corporation, and owned at least two-thirds of its stock. The other stockholders were E. B. Matthews, Troy A. Bond, H. H. Harvey, H. A. McCauley and Dr. Sweeney. McCauley owned about 20 per cent of the stock of this corporation. As a result of the sale of a lease in February, 1921, the Hiram Oil & *978 Gas Co. was the owner of four notes of the Foster Oil Co. One of these notes was for $22,500 and was payable on May 16, 1921; another for a like amount was payable August 16, 1921; another for $25,000 was payable on November 16, 1921; and another for $25,000 was payable*2213 on February 16, 1922. While the Hiram Oil & Gas Co. held these notes in 1921, H. A. McCauley asked the petitioner for two of these notes. The petitioner promised McCauley that he would have the Hiram Oil & Gas Co. lend him two of these notes. Thereupon a meeting of the board of directors of the Hiram Oil & Gas Co. was called for the purpose of discussing the matter. The minutes of the meeting were as follows:
It was moved and seconded that the president be authorized to sell note of Foster Oil Company for $22,500 due August 16, 1921, and note of Foster Oil Company for $25,000, due November 16, 1921. Motion carried. It was moved and seconded that 10% dividend be declared on all stocks on record May 1st, 1921. Motion carried.
The two notes were then transferred to McCauley and McCauley gave his own demand note to the Hiram Oil & Gas Co. in exchange. He also endorsed the stock which he owned in the Hiram Oil & Gas Co. and deposited it with the corporation as security. McCauley then had the notes of the Foster Oil Co. discounted at his bank and received cash for them. The books of the Hiram Oil & Gas Co. contain no record of the transaction with McCauley, except as set forth*2214 above in the minutes of the directors' meeting.
About March 1, 1922, McCauley paid his note which he had given to the Hiram Oil & Gas Co. The corporation then paid the petitioner $32,000. The petitioner included the $32,000 as income in his return for the year 1922. The Commissioner excluded it from his income for 1922 and included it in his income for 1921. The petitioner's income-tax returns for the years 1921 and 1922 were made upon a basis of cash receipts and disbursements.
OPINION.
MURDOCK: The petitioner contends that the respondent erred in disallowing a deduction of $2,752.95 claimed in his 1921 return as ordinary and necessary expenses of drilling oil wells. About ninety-six of the petitioner's checks, all dated 1921, were admitted in evidence in connection with the petitioner's testimony taken on depositions. A number of these checks are made to cash and a number are made to various individuals. The petitioner did not testify in detail in regard to each check, but simply testified in general terms that either the checks or the money which he had received on the checks was spent for hotel bills, meals, oil and gasoline and other "necessary expenses." We do*2215 not know how much he spent *979 for hotel bills, nor how much for meals nor how much he spent for any other purpose, and, of course, when he says that he spent the money for other necessary business he is simply giving his own conclusion on the very question which we are asked to determine, namely, whether the expenditures were for ordinary and necessary expenses in carrying on a business and, therefore, a proper deduction. . Since the Commissioner has determined that he is not entitled to the deduction, it was incumbent upon him to give us the details of how he actually spent the money, so that we might judge whether or not he is entitled to the deduction. This he failed to do. However, there is another reason why we can not allow the deduction in question. It appears from the petitioner's testimony that he was in partnership with another during the year and that some, if not all, of these expenditures were in connection with the partnership business. A partnership return of income was made for the year. Ordinary and necessary expenses of a partnership business are properly deducted on the partnership return, *2216 and the partner then returns as an individual his distributive share of the net income of the partnership after making such deductions. He can not take ordinary and necessary expenses of the partnership as a deduction on his individual return. In the present case some, if not all, of the expenditures seem to have been made on behalf of the partnership, and, if they were ordinary and necessary expenses paid or incurred in the operation of any trade or business, it was the partnership business and not an individual business; therefore, the petitioner has not shown that he is entitled to the deduction of any expenditures on this account on his individual return.
The petitioner further contends that the respondent erred in including an amount of $32,900 in his income of the year 1921 instead of in that of the year 1922. He used a cash receipts and disbursements method of reporting his income and actually received $32,000 of this amount in 1922. There is no evidence as to when the difference of $900 was received and the determination of the respondent, as to that amount, must be upheld.
Section 201(e) of the Revenue Act of 1921 provides:
For the purposes of this Act, a taxable*2217 distribution made by a corporation to its shareholders or members shall be included in the gross income of the distributees as of the date when the cash or other property is unqualifiedly made subject to their demands.
The evidence discloses that in 1921, and after February 16 of that year, the board of directors of the Hiram Oil & Gas Co. passed a resolution declaring a 10 per cent dividend on all stock on record May 1, 1921. The evidence does not disclose whether or not a date *980 was ever set by the corporation for the payment of this dividend. We simply know that the petitioner received his share of it in 1922 after McCauley paid off his note. We do not know that the petitioner had to wait until that time to receive his dividend. There was some testimony which rather indicated that some stockholders were to receive their dividends earlier than the petitioner and McCauley were to receive theirs, but it was too vague to form the basis for a finding of fact. We have not been told enough about the financial condition of the corporation in 1921 or about the dividend in question to know whether or not in 1921 cash or other property was unqualifiedly made subject to the*2218 petitioner's demand. The petitioner stated that he did not, as president, demand payment of McCauley's note because he wanted to help McCauley. We are not unmindful of the fact that the petitioner was the president of the corporation and that he owned at least two-thirds of its stock. He therefore was in a position to delay paying the dividend after the cash or other property was unqualifiedly made subject to his demand by the corporation. The present case is clearly distinguishable from , cited by the petitioner. From a consideration of all the evidence, we conclude that the petitioner has not shown that the cash or other property was not unqualifiedly made subject to his demand in the year 1921.
Reviewed by the Board.
Judgment will be entered for the respondent.
GREEN and ARUNDELL dissent on the second point.