*705 Where indebtedness in a disclosed amount owing to petitioner from a stockholder, who was a former employee, was paid in full and liquidated in conformity with a mutual agreement of settlement by which indebtedness in an undisclosed amount of the petitioner to such stockholder was also paid in full and liquidated, and other considerations passed from him to petitioner and from petitioner to him, the petitioner is not entitled to a deduction as a bad debt of any of the indebtedness by him thus paid in full and liquidated.
*371 This is a proceeding for the redetermination of a deficiency in income tax for the calendar year 1930 in the amount of $935.06.
It is alleged that the respondent erred in disallowing a loss sustained and charged off by the petitioner in the year 1929 in the amount of $7,892.17.
FINDINGS OF FACT.
The petitioner is a Montana corporation, with principal office at Great Falls, Montana. It was organized in 1925 by C. A. Ross, M. A. Wohl, D. R. Petrie, and H. J. Fennimore for the purpose of *372 selling road and contractors' *706 equipment. The petitioner is in the nature of a personal service corporation, its stockholders having been previously engaged together in another organization in the same line of business. At organization about 400 shares of stock of the par value of $50 per share were issued by petitioner for agency contracts with manufacturing concerns, which constituted all of petitioner's original capital.
In the fall of 1928 or the beginning of 1929 Petrie, who from the time of its organization had been employed by petitioner as a salesman on a commission basis, discontinued his services for the petitioner and organized or helped to organize a company which was in competition with the petitioner.
On May 4, 1929, Petrie was obligated or indebted to the petitioner in the amount of about $8,000. This represented money which Petrie had withdrawn from the petitioner. It has been loaned to him and had been carried in a loan account. Petrie customarily drew money in cash against the sales which he had made. Some difficulty or controversy arose between the petitioner and Petrie with regard to these debts. Petitioner also had difficulty with regard to collections made by Petrie and not turned*707 in to petitioner. After May 4, 1929, the petitioner discovered that Petrie owed it about $2,000, in addition to the amount of about $8,000, representing amounts which he had collected and had not turned in to the petitioner. This amount of about $2,000 did not appear on the books of the petitioner at May 4, 1929. Petitioner did not know then about it.
At May 4, 1929, Petrie owned 344 shares of stock of petitioner, 257 shares of which were pledged to a bank to secure an amount of $2,000 and interest which Petrie owed the bank.
On May 4 and 6, 1929, the 344 shares of stock of the petitioner had a fair market value of $10 per share.
The petitioner entered into a contract with Petrie which was in terms as follows:
AGREEMENT made this 4th day of May, 1929, by and between the Northwest Equipment Company, Inc., a Corporation organized under the laws of the State of Montana, party of the first part
AND D. R. PETRIE of Missoula, Montana, party of the second part.
WHEREAS, the party of the second part is indebted to the party of the first part for an unstated sum of money, and whereas the party of the second part is the registered owner of 344 shares of stock of the Northwest*708 Equipment Company, Inc., and whereas certificated [certificate] in the name of the party of the second part for 257 shares of stock of the Northwest Equipment Company, is in the hands of the First National Bank of Great Falls Montana, subject to payment of $2,000.00 and interest.
Now it is hereby specifically understood and agreed that upon the payment by the party of the first part of the aforesaid sum of $2,000.00 and interest, that the party of the second part surrenders and delivers unto the party of the *373 first part, all right, title and interest in the aforesaid 344 shares of stock and upon the further payment of $100.00 by the party of the first part to the party of the second part, all indebtedness by the party of the second part to the party of the first part and by the party of the first part to the party of the second part and [sic] is paid in full and liquidated as of this date.
On May 6, 1929, at a special meeting of the board of directors of the petitioner, the following transpired, as shown by the minutes:
C. A. Ross stated that D. R. Petrie was the registered owner of 344 shares of stock in this company and was indebted to this company for approximately*709 $8,000.00, that the stock of D. R. Petrie was held in escrow and that D. R. Petrie had obtained a loan $2,000.00 upon said stock and requested the approval of the Board whereby the company's check could be issued in an amount not to exceed $2,150.00 to take up the aforesaid loan and obtain said stock. Thereupon, M. J. Ross made the following motion:
RESOLVED that C. A. Ross be authorized and instructed to draw on the funds of this company not to exceed $2,100.00 for the purpose of acquiring all of the stock of this corporation now held in the name of D. R. Petrie. This motion was seconded and passed unanimous.
* * *
Petitioner thereafter paid the bank $2,025.12, gave Petrie $100, and thereafter in 1929 carried the indebtedness of Petrie on its books as a loss. Petrie turned over to petitioner the 344 shares of petitioner's stock. Other stockholders desired to eliminate Petrie from the affairs of the petitioner and prevent the 344 shares from getting into other hands.
At the time of the agreement between petitioner and Petrie the officers and stockholders of the petitioner were satisfied that the amount owing from Petrie to the petitioner was uncollectible except as collection*710 was made as heretofore found and set forth. The amount carried on petitioner's book as Petrie's indebtedness to petitioner was charged off its books on December 31, 1929. It was petitioner's custom to leave all of its accounts open until the last day of the year.
In determining petitioner's net income for 1930 the respondent reduced the statutory net loss claimed by petitioner for 1929 by $7,892.17 representing Petrie's indebtedness to the petitioner, which petitioner claimed as a bad debt deduction for 1929.
OPINION.
MCMAHON: The only question presented for decision is whether respondent erred in disallowing as a deduction for 1929 an amount of $7,892.17 claimed by petitioner as a debt ascertained to be worthless and charged off within that taxable year, 1 and thereby reducing, to that extent, the amount of net loss carried forward by petitioner as a deduction in computing its net income for 1930. 2
*374 It is to be noted that the agreement of May 4, 1929, between the petitioner and Petrie provides that "all indebtedness by the party of the second part to the party of the first*711 part and by the party of the first part to the party of the second part * * * is paid in full and liquidated as of this date." (Emphasis supplied.) There is no showing by the petitioner that the indebtedness of Petrie to it was not thus paid in full and liquidated.
The agreement does not state the amount of indebtedness of Petrie to the petitioner but the evidence discloses that such indebtedness, of which petitioner then had knowledge, was in the amount of about $8,000. There is no evidence to show the amount of the petitioner's indebtedness to Petrie. The agreement does not set forth the figure or basis at which the 344 shares of stock of petitioner were included in the settlement. However, the evidence discloses, and we have found as a fact and now hold, that the stock had a fair market value at the time of transfer of $10 per share. Our finding is based upon opinion testimony and upon other evidence in the record. There is no evidence to show a different value. Considerations thus moving from Petrie to the petitioner were stock of a value of $3,440 and the release of petitioner's indebtedness, in an undisclosed amount, to him. Considerations moving from the petitioner*712 to Petrie were payment of $2,025.12 to the bank, payment of $100 to Petrie, and the release of Petrie's indebtedness to the petitioner in the approximate amount of $8,000. Furthermore petitioner accomplished its desired elimination of Petrie from its affairs to the mutual satisfaction of both parties to the agreement. It is our opinion, and we hold, that the indebtedness of Petrie to the petitioner was paid in full and liquidated as stated in the agreement. In any event, the petitioner has failed to show that it was not or that it suffered financial loss as a result of the indebtedness of Petrie to it. It may be added that in our opinion all the considerations moving between petitioner and Petrie must be considered as parts of one transaction; and the petitioner in its brief states in substance that it does not contend that the transfers were entirely separate, distinct, and unrelated.
After the payment in full and mutual liquidation of indebtedness by and between the petitioner and Petrie in conformity with the agreement of May 4, 1929, there was not, in fact or in law, any indebtedness owing from Petrie to the petitioner. Hence, the petitioner could not thereafter properly*713 ascertain any of the indebtedness in question to be worthless and charge it off under the provisions of the revenue Act. 3 The fact that the officers and stockholders of the petitioner were satisfied that the amount owing from Petrie *375 to the petitioner was not otherwise collectible and the fact that the amount of Petrie's indebtedness was charged off the petitioner's books on December 31, 1929, is not determinative in the instant proceeding.
Even if we were to assume, for purposes of discussion only, that the indebtedness of Petrie to petitioner was not paid in full and liquidated as we have heretofore held, we would still have to hold against the petitioner for the reason that, upon the whole record, we would be unable to find or hold that Petrie's debt to the petitioner was worthless in whole or in part in 1929, as would be necessary to permit any of the claimed deduction. 4 The determination of the respondent has the support of a presumption of correctness and the petitioner has the burden of proving it to be erroneous. *714 . There is no evidence as to what steps, if any, the petitioner took to collect the indebtedness, other than as herein set forth, or to ascertain the financial condition of Petrie. There is some evidence to the effect that Petrie owed other debts, but their amount is not shown. The evidence does show that Petrie owned a house in Billings, Montana, and an interest in another company, which interest he later sold. There is no evidence as to the value of the house or his interest in the other company. The evidence also shows that Petrie had substantial earning capacity. For all we know Petrie may have been able to discharge his indebtedness to the petitioner in some way other than the way that was employed.
It may be added that there is evidence to show, and we have found as a fact, that after May 4, 1929, the petitioner discovered that*715 in addition to the amount of about $8,000 Petrie owed it about $2,000 representing amounts which he had collected as its salesman on behalf of petitioner and had not turned in to the petitioner. This amount is not in issue under the pleadings, and petitioner makes no claim or contention about it; but in any event, upon the record, petitioner's right to its deduction has not been established, since it may "have represented a failure of" 1929 "profit rather than a loss" and there is no showing "that the amount is actually out of pocket or otherwise how it affects the taxpayer." 5
There is nothing in the regulations or other authorities cited by the petitioner to the effect that a corporation realizes no gain or loss upon the purchase or sale of its own stock which justifies a different result in the instant proceeding, since there is here involved no issue as to gain or loss by the petitioner arising out of petitioner's purchase or sale of its own stock. Here we have only the issue as to *376 whether certain indebtedness is deductible by petitioner under the bad debt provisions of the applicable statute, all as*716 heretofore fully pointed out.
Upon the whole record the holding of the respondent is approved.
Decision will be entered for the respondent.