*1232 Petitioner and two others formed a partnership in which it was agreed that upon its dissolution the increase in the market price of a certain membership in a stock exchange purchased by and held in the name of petitioner and used in the partnership business should be credited to the three partners in certain proportions. Held, amounts paid by petitioner to the other partners in conformity with the agreement are not deductible from gross income of petitioner.
*1023 In this proceeding petitioner contests deficiencies in income tax determined against him by respondent in the amounts of $68.44 (changed by stipulation to $67.44) for the year 1927, and $11,865.38 for the year 1928. Petitioner also claims an overassessment for the year 1927 of $3,690.18, which respondent denies. The controversy arises out of the refusal of respondent to allow as deductions from petitioner's gross income certain sums paid by petitioner to his partners in the taxable years.
All the facts are stipulated, the material parts of which are here set forth.
FINDINGS OF*1233 FACT.
Petitioner is an individual, residing at Port Chester, New York. He kept his books and made his income tax returns on a cash basis. On November 6, 1924, petitioner entered into a contract of partnership with one Kay and one Wertheim to engage in the business of stock and bond brokers and of arbitrageurs under the name of "Kay & Company." The copartnership was to begin business on December 8, 1924, provided petitioner at that time was a fully qualified member of the New York Stock Exchange and had been authorized by the exchange to enter into the partnership contract, which membership he was to promptly apply for after the partnership agreement was executed. If he was not a qualified member of the *1024 exchange and not authorized by the exchange to become a member of the partnership on or before December 8, 1924, then the time for the commencement of the partnership was to be postponed to such date, not later than January 1, 1925, as he should become a member of the exchange and authorized to become a member of the partnership; if such membership and such authority were not obtained by petitioner by January 1, 1925, the partnership contract was to be deemed rescinded*1234 by the parties. The partnership, if begun, was to continue through December 31, 1926, and engage only in the business activities customarily engaged in by individual members of the exchange or partnerships in which one or more of the partners are members of the exchange. Each of the partners was to devote all of his time and attention to the business of the partnership and was not, during the term of the partnership, either directly or indirectly, to engage in any other business. Kay was to contribute to the capital of the partnership not less than $50,000 and the good will of a preexisting partnership of the same name, which good will, however, was not to be valued as an asset contributed by Kay to the capital. Wertheim was to contribute to the capital of the partnership $190,000 at its beginning, and an additional $10,000 on or before April 15, 1925.
Petitioner was to be deemed to have contributed to the capital of the partnership the sum paid by him in the purchase of his membership in the exchange, war tax thereon, and initiation fee. Each of the partners was to be allowed interest on his capital investment from dates when contributed at the rate of 5 percent per annum, *1235 computed up to December 31, 1924, and quarterly thereafter, to be compounded quarterly. Each partner was allowed to draw or have credited to his account $10,000 a year, drawn monthly, as advances against prospective profits, but not subject to refund. If the profits of any partner were less than the amounts drawn, the capital account was to be reduced accordingly, but the partner was not required to make further contributions to capital on that account. Interest was to be charged against the personal drawings of each partner. There were provisions in the contract as to the management of the business not material here. The net profits of the partnership, computed December 1 of each year, were to be divided 35 percent each to Kay and petitioner and 30 percent to Wertheim. Losses were to be borne in the same proportions. The partners were to comply with all the rules and regulations of the New York Stock Exchange. Upon dissolution of the partnership each partner was to receive the amount standing to his credit in the capital account, and the undistributed profits were to be divided among them in the proportions mentioned, but in the event the assets were less than the combined*1236 capital accounts, petitioner was to contribute in cash *1025 to the partnership his share of the losses before the distribution of the assets should be made. Petitioner's annual dues as a member of the exchange were to be deemed a partnership expense, but any contribution made by the petitioner to the gratuity fund of the exchange was to be borne by him individually. If at the dissolution of the partnership the last officially announced purchase price of a seat on the exchange should be less than the price paid for his seat by the petitioner, his capital account was to be credited with the difference; but if it should be more, his capital account was to be debited with the difference. The partners made contracts at other times by which two other partners were taken into the partnership on special terms, in no way affecting the matter here in controversy.
Under the terms of the partnership contract detailed above petitioner, about December 1, 1924, and before the effective date of the partnership, December 8, 1924, purchased a membership in the New York Stock Exchange for $80,000, which he paid out of his own funds. The membership in the exchange at all times after its*1237 purchase by petitioner and at the hearing herein was still held in petitioner's name and so evidenced on the records of the exchange. The partnership was dissolved December 31, 1927.
Petitioner in 1927 paid to Kay the sum of $77,350 as Kay's share of the sum of $221,000, which is the difference between $80,000, the amount paid by petitioner for his membership in the exchange, and $301,000, the last officially announced purchase price of a membership in the exchange; and petitioner in 1928 paid Wertheim the sum of $51,300 on account of Wertheim's share of the $221,000.
In petitioner's income tax return for 1927 he reported all income from the partnership without making any deduction therefrom for any part of the sum of $77,350 paid by him to Kay. On April 12, 1929, petitioner made claim upon the United States Treasury Department for the refund of $3,690.18, which was the full amount of income tax paid by petitioner for the year 1927, and as the basis for such claim asserted that the sum of $77,350 paid to Kay by him was a proper deduction from petitioner's income for 1927, which claim was denied and a deficiency of $68.44 for that year was asserted.
Petitioner made and filed*1238 a return of his income for the year 1928 and paid the tax shown to be due thereon after taking as a deduction from gross income of that year the sum of $51,300 paid by petitioner during the year to Wertheim, which deduction respondent disallowed and asserted an additional tax of $11,865.38 by reason thereof.
OPINION.
SEAWELL: Petitioner in his brief says: "The payments made by petitioner were solely in satisfaction of his obligations to his partners as created by the partnership agreements and not in the acquisition *1026 of any asset, and therefore, constituted a deduction against his partnership earnings." We were not told by what section of the taxing act such a deduction from gross income is directed to be allowed, or how the payment of money "not in acquisition of any asset" is necessarily deductible. Section 214 of the Revenue Act of 1926, applicable here, contains no such direction and affords no explanation of petitioner's claim. Petitioner further says in his brief that "payments when made by any of the partners to the others based upon the artificially established criterion (the difference between the sum of $80,000 on the one hand, and the last official*1239 sales price of a Stock Exchange membership on the other hand) were in adjustment of the individual profit and loss accounts of the various partners in that specific transaction." We do not understand the transaction referred to between the several partners to have been in any sense artificial or unrelated to the business in hand. The partnership was built up around the membership in the exchange, and without such membership there was to be no partnership. Petitioner, as the individual holding the membership in the exchange, was the key man and indispensable to the brokerage business to be set up. He was not to pay into the establishment of the business as much money as Wertheim, and possibly was not to contribute as much to its capital as Kay, when the contribution of the good will of Kay's former business is considered. Petitioner, however, was to have as large a share in the profits as any other. The contributions to the capital account by Kay and Wertheim were in a measure static - cash, the amount of which could be returned in kind - while that of petitioner was more subject to fluctuations of value. The hazard of his contribution ought not to be borne by petitioner alone*1240 while that of his partners was comparatively secure; and so it was provided in the contract of partnership that losses on the investment in the exchange seat should be borne proportionately by the partners, and also that the rise in the price of such membership should be profit to the three. To ascertain this loss or gain upon the cost of the exchange membership, it was provided that the cost to petitioner should be the base and the last officially announced purchase price of a membership in the New York Stock Exchange should measure the profit or loss. These data are all furnished in the stipulation of facts and show plainly that the rise in value of the exchange membership, measured as required by the contract, resulted in a profit of $221,000. Thirty-five percent of this gain amounts to $77,350, the exact amount paid in 1927 by petitioner to Kay, as he says in the brief above quoted, "in adjustment of the individual profit" of Kay in the "specific transaction." Likewise, in the succeeding year petitioner paid the other partner *1027 $51,300 in "adjustment" of his share in the profit of the same transaction.
*1241 What petitioner paid was not to buy his peace or settle any controversy as to his title to his exchange membership. There was no peace threatened or title disputed. The cases of , and , and other cases cited by petitioner are, therefore, not in point. It matters not that the seat on the exchange was held in petitioner's name and so evidenced in the records of the exchange. The other partners in the brokerage firm had an equitable and legal claim to share in the rise of its value, just as, for instance, if it had been a patent right or other property of the petitioner brought into the contract of partnership.
The rise in value of the exchange membership was not gain taxable to petitioner at that time, because it had not been sold or otherwise disposed of by him. We do not understand that it was so dealt with in petitioner's returns. The stipulation of facts, as we read it, negatives the suggestion. The issue is the claimed deduction, not the amount of gross income. To entitle the petitioner to any deduction, he must bring himself within the provisions of the statute*1242 allowing deductions. Sec. 214, Revenue Act of 1926; sec. 23, Revenue Act of 1928.
The parties had the right to contract among themselves as to how their respective interests in the partnership assets should be ascertained. What the petitioner paid to his partners was never his own under the contract, but belonged to them as their part in the partnership assets as the value of the seat on the exchange increased. These payments are not deductible items. Cf. .
Petitioner cannot hold to the fruits of the partnership contract and refuse to pay his partners their part of the profits ascertained in the way agreed upon between them; or claim such payment when made to be a deductible loss suffered and not compensated for by insurance, or a bad debt ascertained to be worthless and charged off, or an ordinary and necessary expense of his business. It was none of these things.
Under the stipulated facts we must sustain the respondent and hold that there was no overassessment against petitioner in the year 1927 as claimed by him and that the respondent was not in error in refusing the deductions claimed.
Judgment will be entered*1243 for the respondent, except that as to the year 1927 the deficiency is $67.44 instead of $68.44, as stated in the deficiency notice.