23 B.T.A. 156">*156 These proceedings were brought to redetermine the deficiencies in income taxes of the petitioner for the years 1922, 1925, and 1927 in the amounts of $4,279.30, $1,865.51, and $3,351.62, respectively.
The petitioner alleges the following errors:
(1) In all three proceedings the respondent disallowed the deduction as a business expense of $7,200 representing payments made to John Wedderburn.
(2) In Docket Nos. 33831 and 45914 the respondent increased the petitioner's taxable income by $1,900 and $6,700, representing salaries due from L. F. Randolph & Company, Inc., for the years 1925 and 1927, respectively, as accrued but not paid.
(3) In Docket No. 45914 the respondent disallowed as a deduction interest in the sum of $6,543.58 paid on short-term loans. The respondent conceded his error in this respect.
These proceedings were consolidated for hearing and report.
23 B.T.A. 156">*157 FINDINGS OF FACT.
For 32 years the petitioner was engaged in the patent business under the name of1931 BTA LEXIS 1916">*1917 Victor J. Evans and Company, in Washington, D.C. He advertised extensively as a patent attorney. During 1913 and 1914 the cost of such advertising was about $3,000 per month. In 1914, L. F. Randolph & Company, Inc., hereinafter called the Randolph Company, was also engaged in the patent business and was the petitioner's principal competitor. John Wedderburn was managing agent and principal stockholder of that corporation. By reason of his business and social relations with William Randolph Hearst, Wedderburn, formerly Hearst's private secretary, obtained the free and unlimited use of advertising space in the Hearst publications. Consequently, the Randolph Company was about to overshadow the petitioner in its advertising in the Hearst newspapers and magazines. The Randolph Company also carried extensive and expensive advertisements in publications not controlled by Hearst and paid the current rates therefor. In Washington the amount of patent business obtained depends largely upon advertising. In order to compete with the Randolph Company the petitioner, therefore, was forced to advertise extensively. In 1914, the petitioner estimated that it would require $25,000 per year1931 BTA LEXIS 1916">*1918 in additional advertising to equal the schedule of advertisements maintained by the Randolph Company.
In 1914 Wedderburn informed the petitioner that, on account of an advanced case of diabetes, he had been ordered by his physician to retire from business activities. He proposed to the petitioner various methods of disposing of his business interests and assets in order to accomplish that result. Negotiations between the two men resulted in the execution of a contract by them dated September 14, 1914, which in addition to unimportant recitals and stipulations, contained the following provisions: That Wedderburn would sell to the petitioner 2,024 shares of the capital stock of the Randolph Company, for $50,000, evidenced by ten notes of $5,000 each, due and payable one each year for ten years; that Wedderburn would assign to the petitioner his contract as manager of the Randolph Company, dated September 29, 1913; that Wedderburn would not engaged in the patent business at any time thereafter within five years from the date of the payment in full of the said notes aggregating $50,000 without the written consent of the petitioner; that the said 2,024 shares of stock would be assigned1931 BTA LEXIS 1916">*1919 as collateral security for the payment of the $50,000 under certain specified conditions; and that the petitioner would pay to Wedderburn in monthly installments an annuity of $7,200 during his life.
On September 16, 1914, the petitioner and Wedderburn executed a supplemental contract which restricted Wedderburn's use of the 23 B.T.A. 156">*158 Hearst advertising privileges to the business of the Randolph Company. That contract provided that if such advertising space in the Hearst publications furnished by Wedderburn should aggregate $12,000 per year at established rates the petitioner would pay to Wedderburn therefor $3,000 per year. The contract contained also conditions governing its termination.
The above-mentioned contract between Wedderburn and the Randolph Company, dated September 29, 1913, was, with the consent of that company, assigned to petitioner October 2, 1914, and by corporate action of the Randolph Company, Evans was substituted for Wedderburn. The contract provided that Wedderburn should act as the Randolph Company's advertising and managing agent at a salary to be determined as follows:
The salary of the said John Wedderburn shall be fixed at an amount equal to1931 BTA LEXIS 1916">*1920 10% of the gross receipts of L. F. Randolph & Company, Incorporated, exclusive of the receipts for the sale of Common Stock or of moneys loaned from Banks for the transaction of the company's business until such time as the gross receipts of the Company shall amount to Fifty Thousand Dollars ($50,000.00) per annum, and that from and after the time when the gross receipts of the Company shall amount to Fifty Thousand Dollars ($50,000.00) per annum the salary of John Wedderburn shall be and shall remain at the sum of Five Thousand Dollars ($5,000) per annum, until the gross receipts, exclusive of the sale of the Common Stock, or loans made from banks, shall equal the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) per annum, whereupon the salary of John Wedderburn shall be increased to the sum of Ten Thousand Dollars ($10,000.00) per annum during the lifetime of the said corporation and the said John Wedderburn.
The gross income of the Randolph Company for 1914 was $180,976.80. At no time since the year 1914 were the gross receipts thereof over $100,000 per year. In 1922 they were $96,419.44; in 1925, $68,945.01; and in 1927, $55,086.69. In 1922 the petitioner received1931 BTA LEXIS 1916">*1921 a salary of $10,000. It was his understanding that his contract with the Randolph Company unequivocally provided for a fixed salary of $10,000 per year. In 1925 he received $8,100 and in 1927, $3,300. The full amount of his salary was not paid because the receipts of the Randolph Company did not justify its payment.
The Randolph Company issued 3,000 shares of common stock and 500 shares of preferred stock, each having a par value of $100 per share. The entire amount was issued to Wedderburn. On March 21, 1922, dividends of 1 1/2 per cent on common and 6 per cent on preferred stock were declared. No other dividends were ever declared.
In 1914 Wedderburn was approximately 47 years of age. Evidence was presented to show that the present worth in 1914 of $1, payable in 1922, in 1925, and in 1927, was $.6231, $.5218 and $.4636, respectively.
The respondent increased the petitioner's taxable income by $1,900 in 1925 and by $6,700 in 1927 as representing unpaid accrued salary. 23 B.T.A. 156">*159 He disallowed as deductions the $7,200 per year paid to Wedderburn during each taxable year on the ground that such payments represented a portion of the sale price of the patent business.
1931 BTA LEXIS 1916">*1922 Petitioner kept his accounts and made his tax returns on an accrual basis.
OPINION.
VAN FOSSAL: The first question presented for our consideration is whether the petitioner is entitled to the deduction, as an ordinary business expense, of $7,200 paid to John Wedderburn during each of the years 1922, 1925, and 1927, or whether such payments constitute a part of the purchase price of the stock and control of the Randolph Company acquired by the petitioner from Wedderburn under the contract of September 14, 1914.
The petitioner contends that the sum of $50,000 paid by him to Wedderburn was the entire consideration for 2,024 shares of stock of the Randolph Company and that the monthly payments aggregating $7,200 per year were separate and apart from the stock transactions. We can not accept this view. The original contract of September 14, 1914, between the petitioner and Wedderburn embraces the basic elements of their agreement, the purpose of the supplemental contract of September 16 being merely to prevent Wedderburn from disposing of advertising space in the Hearst publications to others than the petitioner. On account of the condition of his health Wedderburn was compelled1931 BTA LEXIS 1916">*1923 to relinquish his business activities. He was the owner of a majority of the stock of the Randolph Company and was its advertising and managing agent. His motive in executing the contract with the petitioner was to secure the highest price for his interest in the Randolph Company and for his rights under the contract of September 29, 1913. On the other hand, the petitioner was concerned primarily with eliminating a dangerous and disastrous competition. He does not claim that the $50,000 he paid for Wedderburn's stock represented its real value - that was merely the price Wedderburn demanded. The petitioner was forced to pay it or to continue to suffer from the competition of his business rival. Likewise, Wedderburn required that the petitioner should pay him an annuity of $7,200 for life as part of the transaction. The contract sets up no new or separate consideration for such payment but the promise of the petitioner to make it is contained in a clause concomitant and coordinate with all other covenants therein.
The petitioner maintains that his estimated savings of $25,000 per year in unnecessary advertising space which he would have been forced to purchase in order to1931 BTA LEXIS 1916">*1924 compete with the Randolph Company, was chargeable directly to the annual payments made to Wedderburn. 23 B.T.A. 156">*160 The control of the Randolph Company by the petitioner through the acquisition of its stock contributed as much to his savings as any other factor of the contract. He was compelled to subscribe, equally and interdependently, to all conditions imposed by Wedderburn.
The control of the Randolph Company and of its advertising and business policies was secured by the purchase of stock and by the substitution of the petitioner for Wedderburn as its manager. The stock itself with the accompanying control constituted a capital asset. We have held in numerous cases that annuity payments made in consideration of the conveyance of property in the trade or business of the purchaser are capital expenditures and are not deductible. ; ; ; . On authority of these cases we hold that the above mentioned annuity payments are not deductible during the years under consideration.
1931 BTA LEXIS 1916">*1925 In the alternative, the petitioner contends that a portion of the annuity paid each year is interest and is deductible as such. He cites ; affd. . In that case, however, the value of the property conveyed in exchange for the annuity was established. In the case at bar we have no evidence relating to the value of the stock of the Randolph Company, of the assignment of Wedderburn's contract as manager of that company, or of his agreement to refrain from engaging in the patent business for a period of years. Hence, even if such an allowance were proper, we have no basis on which to compute it. See
The second issue is whether the petitioner is taxable on a salary of $10,000 per year as fixed and approved under his contract with the Randolph Company or only on the portions thereof actually received by him in 1925 and 1927.
We are asked to construe the provision of the contract of September 29, 1913, relating to the salary of Wedderburn as advertising and managing agent of the Randolph Company. That clause sets forth the basis of the initial determination1931 BTA LEXIS 1916">*1926 of the salary and provides that it shall remain at $5,000 "until the gross receipts, exclusive of the sale of the common stock, on loans made from banks, shall equal the sum of One Hundred Fifty Thousand Dollars ($150,000) per annum, whereupon the salary of John Wedderburn shall be increased to the sum of Ten Thousand Dollars ($10,000) per annum during the lifetime of the said corporation and the said John Wedderburn." The gross income of the company for 1914 was $180,976.80, well over the minimum of $150,000 named as a basis of 23 B.T.A. 156">*161 fixing the salary of the managing agent at $10,000 per year. The petitioner himself testified that he understood that the contract provided unequivocally for a salary of $10,000 per year. In 1922, although the receipts were only $96,419.44, he received the full amount of $10,000. This payment demonstrates that the company adopted the same interpretation of the contract as did petitioner. In 1925 and 1927 he actually received less than this amount. There is no evidence, however, that the Randolph Company could not or did not pay the salary deficiencies in the subsequent years. The only reason assigned for not paying the full amount in 19251931 BTA LEXIS 1916">*1927 and 1927 was that the receipts of the company did not justify such payment.
We believe the interpretation placed on the contract by the parties in 1922 to be correct. Petitioner was on an accrual basis and is taxable during the years in question on the full amount of his salary, which should have been accrued on his books.
Judgment will be entered under Rule 50.