*783 This appeal involves income taxes for the calendar years 1924 and 1925 in the sums of $14,540 and $15,586.88, respectively.
FINDINGS OF FACT.
Petitioner is a New York corporation with principal office at 195 Broadway, New York City.
Petitioner entered into an agreement with the Western Union Telegraph Co. under date of May 12, 1882, whereby it leased to said company two transatlantic cables. The contract contained, among others, the following provisions:
Fifth. - The Telegraph Company hereby agrees to pay for the rental of the two transatlantic cables, the land lines, equipments and other property and assets of the Cable Company as aforesaid, the yearly sum of seven hundred thousand dollars ($700,000) in each year, in quarterly instalments of one hundred and seventy-five thousand dollars ($175,000) at the end of each quarter, to wit: On the first days of September, December, March and June, respectively, the said payments commencing on the first day of September, 1882, and that such payments shall be made directly to the Stockholders*2244 of the Cable Company, to secure which payments the Telegraph Company further agrees that its secretary shall sign a guarantee and affix the seal of the Company thereto for the payment of dividends at the rate of five per cent. per annum, payable quarterly as above mentioned, on the certificates of the capital stock of the Cable Company, to be issued to the American Cable Construction Company, not to exceed the aggregate of fourteen millions of dollars, in payment for the two cables, in accordance with an agreement of even date herewith between those companies.
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Ninth. - The Cable Company hereby agrees to keep up its organization as a corporation, and the Telegraph Company, on its part, agrees to pay the Cable *784 Company the further sum of not to exceed twenty-five hundred dollars ($2,500) per year during the continuance of this agreement, the same to be used by the officers of the Cable Company as and for an administration fund, for the purposes of defraying the necessary expenses of maintaining the organization of the Cable Company as a corporation, and the payment of the same is to be made in such manner and at such times as the officers of the Cable Company may*2245 direct.
In 1924 the Western Union Telegraph Co. paid to the stockholders of petitioner, other than itself, the sum of $584,530, and in 1925 the sum of $588,155, as rent.
Under date of December 12, 1923, petitioner and the Western Union Telegraph Co. entered into the following agreement:
The telegraph company agrees to lend the cable company, at such times, in such amounts, and upon the terms and conditions hereinafter specified, such sums of money as may be necessary to pay the Federal income taxes imposed upon the taxable income of the cable company, commencing with the fourth instalment of the tax for the year 1922 (payable December 15, 1923) and continuing during the remainder of the term of the agreement between the two companies dated May 12, 1882, or in the event of an earlier termination of said agreement, until such termination.
On or before the date when any instalment of the Federal income tax imposed upon the income of the cable company, under the present or any subsequent Federal income tax law, shall become due and payable, the telegraph company agrees to lend to the cable company a sum sufficient to meet that payment of said tax upon the delivery of the duly*2246 executed promissory note, in writing, of the cable company, payable on demand, for the amount so advanced. Such notes shall bear interest at the rate of six percentum per annum, compounded semi-annually. The cable company agrees to use the sums so borrowed for the payment of said taxes, and for no other purpose whatsoever, and agrees to pay said taxes when they become due and payable, and not to allow any penalty to be incurred by reason of nonpayment or otherwise. The cable company further agrees to renew such notes, with the accrued interest thereon, as and when requested by the telegraph company.
The cable company also agrees not to suffer any judgment to be recovered against it, or to mortgage its property or any part thereof, or to place any other lien or incumbrance thereon during the term of the aforesaid agreement dated May 12, 1882, without the written consent of the telegraph company.
The telegraph company agrees to waive any claim for reimbursement from the cable company in respect of the sums paid in Federal income taxes by the telegraph company on behalf of the cable company prior to the date of this contract.
In 1924 and 1925 the Western Union Telegraph Co.*2247 paid petitioner's income taxes. On its income-tax return petitioner showed interest on these payments of $2,994.54 for 1924 and $7,520.01 for 1925.
Under the provision of the agreement of 1882 there was disbursed by the Western Union for account of petitioner in 1924, $2,728.49, and in 1925, $2,134.05, for miscellaneous expenses including registrar fees, plate for stock certificates, advertising, postage, and compensation to officers.
*785 OPINION.
STERNHAGEN: The first issue presents the identical question which has been decided adversely to petitioner by the Board as to 1919, , decided October 26, 1925, and as to 1922 by the Court of Claims in , certiorari denied, . The present petition was filed in May, 1927. These direct authorities are based upon numerous decisions which make the law unmistakably clear in support of the Government. Under such circumstances, there is no justification for new litigation on the subject by which the payment of the tax is delayed.
The second error assigned is*2248 that the interest alleged to have accrued to the Western Union was not permitted by respondent to be deducted. The facts in evidence are inadequate for a decision. If the cash basis is used, the interest if deductible at all is only so when paid. The fact testified to that the amounts were shown on its return does not establish that in substance they either accrued or were paid. The respondent is sustained.
On the third issue there is likewise insufficient evidence to establish error.
Judgment will be entered for the respondent.