*1526 1. Where a corporation enters into eight contracts all attached to "The General Conditions of the Contract," which sets forth the precise method by which all the obligations of the contractor are to be discharged and such "General Conditions of the Contract" and the eight contracts appended thereto cover construction of two buildings for a single owner, held that the work involved is a single job and is not completed until all the terms of "The General Conditions of the Contract" and of the several contracts attached thereto have been discharged.
2. Method of determining overhead costs chargeable against amount received as pay for a completed job on a single contract basis determined.
3. Where a contractor is awarded a quantum meruit judgment in addition to amounts already received in payment for a job undertaken on the cost-plus basis, the difference between the amount claimed and the sum of the payments and judgment is not deductible loss in the year in which the judgment was awarded.
*408 The respondent has determined overassessments for*1527 the years 1920, 1921 and 1922 in the respective amounts of $2,775.12, $44.29 and $708.15; deficiencies for the years 1923 and 1924 in the respective amounts of $6,652.24 and $23,067.59; and negligence penalties for 1923 and 1924 in the respective amounts of $332.61 and $1,153.38. The parties agree that in the petition and answer issues are joined as follows:
(1) Was the profit realized from certain long-term construction contracts taxable to the petitioner in the years 1923 and 1924 as determined by the respondent, or in 1925 as contended by the petitioner?
(2) Should overhead expenses be charged against profits from long-term contracts, and if so, how shall such expenses be determined and allocated?
(3) Did the petitioner sustain a deductible loss in 1924 in the amount of $27,386.42?
(4) Was a payment in the amount of $26,092.51 made to one Jacobson in 1920 an item of overhead expenses chargeable against the profits realized from the long-term contracts in controversy?
(5) Did the respondent erroneously add the amount of $3,892.47 to the gross income of the petitioner in 1924 as interest received?
(6) Should the penalties for negligence be collected?
FINDINGS*1528 OF FACT.
The petitioner is a Minnesota corporation engaged in the general contracting business. Its principal office is in Minneapolis.
At various dates between February 7, 1920, and July 11, 1921, the petitioner and the Independent School District No. 35 of the State of Minnesota, hereinafter called the District, entered into eight contracts for the construction of two school buildings for and on the property of the latter. In accomplishing the terms of such contracts the petitioner conducted all the work done as a single job and there was no separate operating organization for either of the two buildings or for any one of the several contracts. Such contracts fall into three groups designated in the record as 60, 63 and 64. A great part of the work was done by the petitioner, but some parts thereof were performed by subcontractors. The petitioner had supervision, control and direction of all the work under all the contracts and was obligated under bond to the owner for *409 the discharge of each in conformity with conditions set out in the several contracts and with the terms and provisions of the "General Conditions of the Contract" to which each was attached.
*1529 The petitioner began work under the contracts in February, 1920. On October 8, 1921, at the instance of a taxpayer of the District, it was enjoined from proceeding further with the work of construction, which was about 90 per cent completed at that time. In June, 1923, the injunction was dissolved and work was renewed and continued until all the terms and conditions of the several contracts were discharged, early in 1925. The injunction proceedings also suspended the operations of all subcontractors engaged in the work.
During the period in which work under the contracts was suspended by injunction the construction already completed was damaged by the elements and on resumption thereof it was necessary to do much extra work and extra materials in substantial amounts were necessary to repair and replace damaged parts. All such repairs and replacements were required before operation for the completion of the entire job could be resumed.
In 1925 the petitioner made payments in connection with the contracts here involved in the amount of $53,494.95, of which $23,000 represents attorneys' fees, for the most part incurred in the injunction proceedings.
The petitioner's books*1530 show the direct cost of material and labor chargeable against the gross income realized from the completion of the two school buildings. For the years 1920 to 1924 all overhead expenses are reflected in its books, but no allocation of any ratable part thereof was made to the contracts here in question until some time in 1925. Petitioner's method of determining overhead chargeable to any one job in any given year is to find the percentage of total overhead to total direct cost. The application of this formula for the years under review shows overhead expense chargeable to the contracts herein involved as follows: 1920, $12,601.69; 1921, $5,974.44; 1922, $620.64; 1923, $14,086.74; 1924, $16,136.03; 1925, $1,470.94, or a total of $50,890.48.
In 1919 the petitioner undertook certain work for the District under an oral contract, made without lawful advertising, which provided for compensation on a cost-plus basis. Before completion this work was stopped by a legal proceeding instituted by a taxpayer of the District. Petitioner claimed payment for the work done on this job in the amount of $80,000, and before it was stopped had received $37,023.08. It prosecuted a suit at law for*1531 the balance and obtained judgment in 1924 on a quantum meruit basis, which reduced its claim to $27,386.42. It now contends that this amount was a loss sustained in 1924 and deductible from its gross income for that year.
*410 The petitioner paid one Jacobson, in 1920 and 1921, the amount of $26,092.51, which it claims was expense in connection with financing the contracts here in controversy. The payment was made as the result of an attempted assignment of certain contracts to Jacobson and two others.
In 1924 the petitioner credited Jacobson with interest in the amount of $3,892.47, which the respondent has added to income for that year. It now contends that it never received such amount.
The petitioner kept its books in such manner that they reflected its income on a completed-contract basis, except that it allocated no overhead costs to the contracts here involved until 1925, the year in which it contends that they were completed and the income therefrom was taxable.
OPINION.
LANSDON: The petitioner seeks a redetermination of overassessments for the years 1920, 1921 and 1922. This Board has no jurisdiction where overassessments do not arise from the*1532 denial of a claim in abatement, even though such overassessments are included in the notice in which the Commissioner asserts deficiencies for other years. This proceeding, in so far as it relates to years in which overassessments only have been determined, is dismissed. Section 274(g), Revenue Act of 1926; ; .
The petitioner contends that the group of eight contracts herein designated as 60, 63 and 64 should be regarded as covering a single job which was completed in 1925, and that all profits therefrom must be reported as income in the year of completion. The respondent has broken the group into separate jobs and determined the deficiencies here in question on the theory that the major portion of the work was completed in 1923 and 1924. The parties agree that the tax liability in controversy should be computed on the completed-contract basis. This Board must determine, therefore, (1) whether the construction undertaken by the petitioner is to be regarded as a single job, or whether each contract was a separate job with its own completion date; and, (2) if the entire construction*1533 is to be regarded as a single job, whether it was completed in 1923 or 1924, or in some subsequent year not now under review.
The eight contracts here in question covered all the work undertaken by the petitioner in connection with alterations and construction of two school buildings erected for the District. All are governed by the terms of an instrument designated "The General Conditions of the Contract," a standard form used by the American Institute of Architects. Each of the separate contracts contains the following:
*411 The contractor and the owner agree that the General Conditions of the Contract, the specifications as modified by Addenda No. 2, which have been identified on the first and last sheets by initials of Contractor and Owner; together with the agreement form the Contract and that they are as fully a part of the contract as if hereto attached or herein repeated. * * *
"The General Conditions of the Contract" is made up of 45 sections, each of which applies to every engagement undertaken in each of the several attached contracts. Its terms require that at the completion of the work, "he [the contractor, petitioner here] shall remove all his rubbish*1534 from and about the building and all his tools, scaffolding and surplus materials and shall leave his work 'broom clean' or its equivalent, unless more exactly specified." It also provides that "the Contractor shall promptly remove from the premises all materials condemned by the Architect as failing to conform to the Contract, whether incorporated in the work or not, and the Contractor shall promptly replace and re-execute his own work in accordance and shall bear the expenses of making good all work of other contractors destroyed or damaged by such removal or replacement." Under the terms of "The General Conditions of the Contract," this petitioner was the first on the job and the last to leave until every condition of every contract had been fulfilled. The eight several contracts cover parts of the same construction, all of which was undertaken by the petitioner for a single owner. The completion of all effected the completion of the job, and, until the last work was done on the last unfinished part of the job, the petitioner was bound by all the terms of "The General Conditions of the Contract."
The petitioner always regarded the work covered by the eight contracts as a single*1535 job. It effected no separate organization, had no separate foreman or superintendent for the several kinds of construction under the so-called separate contracts. It made no attempt to segregate or allocate the costs of discharging its operations under each contract. It is in evidence that in a single day or even in a single hour, one mechanic might work on the construction involved in two or more of the contracts. The entire work to be done was broken up into eight separate undertakings for convenience in construction and reletting to subcontractors. It is our opinion that "The General Conditions of the Contract," together with the eight separate contracts attached thereto, cover a single job and that completion thereof required the discharge of the obligations undertaken in each of such contracts.
The date of completion must be determined by the evidence. Petitioner's witnesses on this point all testified that the petitioner and some of the subcontractors were at work as late as March, 1925. Its records show that it incurred expenses and received substantial payments on the job in that year. Its officers testified that it finished *412 its work, cleaned up, and*1536 moved out in March, 1925. The respondent introduced no evidence in rebuttal and relies on his crossexamination of the witnesses called by the petitioner. He lays some stress on the proved fact that all the work was 80 per cent or 90 per cent completed when it was stopped by injunction and argues that petitioner could easily have discharged all his contractual obligations in 1922 or 1923, at the latest, attaching no importance to the fact that the injunction proceedings not only interrupted the work, but resulted in damage which materially delayed the construction that remained to be done upon resumption. The evidence is convincing that the petitioner was still on the job early in 1925, and we are of the opinion that the contract was completed in 1925. It follows, therefore, that income therefrom is not taxable in 1923 or 1924.
The second issue relates to the method of allocating overhead costs when a taxpayer is engaged on several contracts and proposes to report income from each on the completed-contract basis. The formula used by the petitioner is fully set forth in our findings of fact, together with the results of its application to the petitioner's accounts during the*1537 years involved. Unless a taxpayer reporting profit on a completed contract basis is to be deprived of all deductions from gross income on account of overhead costs, it is difficult to see how any other method could be employed. The petitioner's formula is in conformity with article 36 of Regulations 65 and with good accounting practice and, in our opinion, results in a reasonable, accurate determination of overhead costs. The amount of $50,890.48 should be deducted from petitioner's gross receipts from the contracts in question as an element of the cost of construction. This conclusion is of no importance in the decision of the issues here, since we have held that work covered by contracts 60, 63 and 64 was a single job that was completed in 1925 and these apportioned overhead costs are, therefore, deductible in that year instead of in any of the years under review.
The record does not sustain the petitioner's claim of a deductible loss in 1924, in the amount of $27,386.42. This alleged loss resulted from a job undertaken in 1919 without advertising and on an oral contract, on which work was stopped by an injunction before it was completed. Petitioner claimed $80,000, was*1538 paid $37,023.08 less than that amount, and sued for the remainder. It obtained a quantum meruit judgment in 1924 which left the amount finally received less by $27,386.42 than its claim. It now contends that it should be allowed a deductible loss in such amount as sustained in the year in which the court decided its claim. There is here no evidence of any *413 loss sustained in 1924 or at any other date. The record is silent as to the cost of the work done and it is impossible therefore to determine whether the entire amount claimed was cost or cost plus profit. The fair presumption is that it included the cost plus the profit contemplated in the oral contract and, for all we know, the entire claim may represent profit which the petitioner would have realized had it been permitted to finish the job. No loss having been proved, the deduction claimed is denied.
The fourth issue is whether the petitioner should be allowed to add the amount of $26,092.51 to the cost of contracts 60, 63 and 64. Since we have found that such contracts were completed in 1925 and that year is not before us, it is not necessary to decide this question.
Petitioner asserts for its fifth*1539 cause of action that the respondent improperly added $3,892.47 to its gross income for 1924, as interest received in that year. The record discloses no basis for any finding of fact adverse to the determination of the respondent. The petitioner's books show credit for interest in a certain account in that amount. No evidence adduced at the hearing overcomes the presumption that such entry and the determination of the respondent based thereon are not correct. The determination of the respondent is approved.
The last question is whether penalties imposed for negligence shall be collected. The evidence shows that petitioner kept a good set of books that diverged only on minor points from the requirements for reporting income from long-time contracts on the completion basis. It is true that overhead costs were not worked out and allocated for each year, but that omission is important only if income from contracts is to be reported on either the accrual or cash basis. The entries necessary to allocate the entire overhead cost of contracts 60, 63 and 64 were all on the books for each year and only the application of the formula used by the petitioner was necessary to determine*1540 the amount thereof at any given time. It was not necessary, however, to make any such determination until 1925. There were other minor divergencies from a perfect system of books, but they were of small importance and without effect as to income reflected. The penalties for negligence should not be collected.
Decision will be entered under Rule 50.