*1876 Where the petitioner contracted to paint a roof and repair it and guaranteed that the roof would be leak proof for ten years, but that if for any cause it could not be so maintained, it would refund so much of the contract price as the number of years the roof was not functioning bore to the term of ten years, and where in the year 1925 the roof leaked and was not susceptible of repair, but petitioner postponed admitting such fact until 1926, in which year demand for refund was made, held that the refund was accruable and deductible in the latter year.
*305 Respondent has determined a deficiency in income tax for the year 1925 in the amount of $390. The only issue is whether petitioner is entitled to deduct from gross income for the taxable year certain amounts paid in the succeeding year in satisfaction of liquidated damages as provided in a contract.
FINDINGS OF FACT.
Petitioner is a corporation organized under the laws of Utah, with principal place of business at 40 East First South Street, Salt Lake City. It kept its books of account on*1877 the accrual basis. It is a manufacturer of and dealer in paints, and during the years 1924 and 1925 it entered into contracts to put on new roofs and repair old ones. In December, 1924, it entered into a contract with the Utah Copper Co. in which it was referred to as the contractor, the pertinent parts of which read:
1. Said Contractor agrees to furnish sufficient "Fibre-Cote" (black asbestos roof cement) to cover, and properly apply the same to, that portion of the roof of the Magna Mill of the Company that is now covered with rubber vanner belting (approximately 1580 squares) so that said portion of said roof shall be put in a waterproof, and leakproof condition, suitable and acceptable to the Superintendent of the said Magna Plant of the Company and in that connection agrees to make any necessary repairs to the present rubber roofing on said mill building so that it will be in proper shape for the application of said "Fibre-Cote," including the repairing of all gashes and holes, fixing all bulges and removing all dust and dirt now accumulated on the rubber on said building roof.
2. The Contractor agrees to keep and maintain the said roof so fibre-coted by it in a waterproof*1878 and leakproof condition, and guarantees the integrity and effectiveness of said coating, for the full period of 10 years and to that end agrees to inspect the said roof at reasonably frequent intervals and make such repairs thereon as may be necessary and agrees to put on at least 2 additional coats of fibre-cote as follows: The second in 5 years from this date, or before if necessary; the third 7 years from this date, or before if necessary; and such additional coat or coats as may be required to put and maintain the roof in a waterproof and leakproof condition satisfactory to the said Superintendent of said Magna Plant.
5. It is understood and agreed that in consideration of the completion of the work described herein and the fulfillment of all the stipulations of this agreement to the satisfaction and acceptance of said Superintendent of said Magna Plant of the Company, the said Company shall pay to said Contractor the sum of $5.00 per 100 square feet of roof so "fibre-coted", which amount shall be payable 50% upon completion of the first application, 25% on December 1, 1929, *306 and the remaining 25% on December 1, 1931, Provided however, that, and it is expressly*1879 agreed that, should the Contractor be unable for, or on account of, any cause whatsoever, to maintain this roof in a waterproof and leakproof condition as aforesaid for the said full period of 10 years, then and in that event the Contractor agrees to refund and repay to the Company whatever amount has been paid by the Company to the Contractor in excess of the proportionate life which the roof has given, that is to say, that proportion of the amount theretofore paid the Contractor and unearned in the ratio of the life of the roof to the period of 10 years guaranteed; Provided further, that in the event that the said roof shall be destroyed by fire, water, tornado, earthquake, or any other cause commonly known as an act of God or beyond the reasonable control of the parties hereto during the term hereof, then and in that event the Contractor shall be entitled to retain any and all moneys theretofore paid to said Contractor and his contract as to the then future and unexecuted or executory portions thereof shall be at an end.
11. It is further understood and agreed that any omission or failure on the part of the Superintendent to disapprove or reject any work or material shall*1880 not be construed to be an acceptance of any defective work or material. The Contractor shall remove, at its own expense, any work or material condemned by the Superintendent, and shall replace the same without extra charge.
The roof had been constructed by the Copper Co. of old rubber belting which had been salvaged by it. The job was an unusual one, and in the nature of an experiment. The work was completed by December 19, 1924, and petitioner then received its first payment of approximately $4,000. In April, 1925, a great many leaks had developed and petitioner was called upon to make repairs. This was done in the same month. In September, 1925, petitioner was again called upon to make repairs. The roof then leaked very badly, and in many places. Only necessary repairs were then made. After making of such repairs and in September, 1925, petitioner's manager inspected the roof and found that certain chemicals used in the making of the asbestos paint had attacked the rubber and caused it to peel away from the fabric and roll up. He found that the roof was beyond repair and that further repairs would be a useless waste of money. This was also the opinion of the superintendent*1881 of the Copper Co., but petitioner's manager in a conversation with the former in effect denied that the roof was beyond repair. At this time petitioner did not have sufficient funds to make the refund required by the conract and hoped that the winter snows would cover the roof and thus tide the matter over until the next spring. Petitioner began closing out its books for the year 1925 about December 2 of that year. The general ledger entries were made in the early part of 1926. At that time petitioner in determining its profits and losses for the year 1925 entered in its ledger in its profits and loss account as of December 31, 1925: "Roof, Suspense Acc't. - $3,000." This account referred to the contract with the Copper Co. During the winter of 1925-1926 the company demanded that further repairs be made, but petitioner excused itself on the ground that the roof *307 was covered with snow and made these excuses in order to tide the matter over until it was in a position to pay. After the repairs were made in September, 1925, the roof continued to leak and repairs would have occasioned the useless outlay of money. In May, 1926, the Copper Co. for the first time demanded*1882 that petitioner make the refund required by contract. The matter was settled by petitioner, paying $500 on July 1, 1926, $500 on July 31, 1926, $500 on September 4, 1926, and $1,265 on December 4, 1926, or $2,765 in all.
In determining the deficiency for 1925 the Commissioner refused to allow any deduction for the amount so set up on the books in 1925 and paid in 1926.
OPINION.
PHILLIPS: Notwithstanding the books of petitioner were kept in a crude manner, the testimony discloses that it entered therein all amounts payable and all amounts receivable and that it kept inventories. These facts indicate that the books were kept on an accrual basis. Cf. .
The question presented is whether petitioner had the right to accrue in 1925 the refund called for by the contract. Petitioner relies upon , while respondent relies upon , , and similar cases. These and similar decisions of the Board are referred to with approval and are cited in the footnotes to the opinion in *1883 .
In the instant case the petitioner made no admission of liability in the taxable year, nor did it enter upon negotiations looking to a settlement as in While it recognized that the day of reckoning was near, it delayed the inevitable as long as possible. It denied that the roof could not be repaired and it was not until the following year that the other party to the contract took the position that such was the fact and demanded payment accordingly. While the case differs in its facts from those upon which the respondent relies, it appears to fall within the principles which governed those decisions. We are of the opinion that under those decisions the amount here involved was not properly accruable until 1926.
Decision will be entered for respondent.