*1862 A "net loss" sustained by petitioner in the handling and closing out of a corporation business was, under the circumstances of this case, a loss sustained in a business regularly carried on by petitioner and is a deductible net loss.
*364 This proceeding is for the redetermination of a deficiency in income tax for the year 1923, in the amount of $889.25. Petitioner asserts error, first, in the respondent's denial of a deduction in the amount of $39,686.46, alleged to represent a net loss sustained in the year 1922, and, second, in the inclusion in petitioner's income of his full share of the profits of a certain partnership, although the total amount so included was not distributed to petitioner in the taxable year.
On hearing, petitioner has abandoned the second allegation of error.
FINDINGS OF FACT.
Petitioner is a resident of Memphis, Tenn., where he has been engaged in the practice of law since 1901.
With the exception of a short interval, petitioner, since 1910, has represented the sheriff of Shelby County, *1863 Tennessee. He represented M. G. Tate, who went out of office as sheriff in September, 1918.
Petitioner and Tate had been friends since childhood. When Tate went out of office he requested petitioner to back him in the purchase of a small automobile repair shop on North Pauline Street, Memphis. Tate proposed that petitioner and he should each invest $750, and that they would be equal partners in the enterprise. Petitioner agreed, and in the fall of 1918 the business was purchased.
*365 Shortly after petitioner and Tate commenced operating as partners in the automobile repair business, Tate was advised that he could secure an agency of the Kelly-Springfield Truck Co. of Springfield, Ohio. In order to secure this agency it was necessary to purchase two trucks at a cost of approximately $7,500. Tate proposed that petitioner furnish this amount of money with the understanding that it would be repaid to him if the business were successful, and that they would be equal partners in the enterprise.
A representative of the Kelly-Springfield Truck Co., who visited Memphis in connection with the award of an agency, advised petitioner and Tate that his company preferred that*1864 there be some formal organization to handle sales in that city. Petitioner desired to operate the sales agency in corporate form, and on his suggestion a character was secured. The name of this corporation was the Kelly-Springfield Truck Sales Company of Memphis, hereafter termed the Sales Co. The incorporators were petitioner and his wife, Tate and his wife, and Tate's brother, A. F. Tate.
Among the provisions of the charter is the following:
* * * The first board of directors shall consist of the five or more corporators who shall apply for and obtain the charter.
On June 17, 1919, the said charter was registered in the Register's Office of Shelby County, and on June 18, 1919, it was registered with the Secretary of State. June 19, 1919, the Secretary of State's certificate of registration, bearing a facsimile of the Great Seal of the State of Tennessee, was registered with the Register of Shelby County. The registrations above detailed are prescribed by section 2026 Ann. Code of Tennessee (Shannon).
Sometime after the charter had been received, petitioner suggested that a board of directors should be elected. Tate proposed that the original incorporators should*1865 constitute the board. Lydia Bryan, petitioner's wife, and one of the incorporators, was a successful business woman, owning and operating the Auto-motive Sales Co. of Memphis. Mrs. Tate, another of the incorporators, was possessed of private means, and was engaged in directing their investment. Each of these ladies declined to participate in a formal organization of the Sales Co. As a result there was never a formal election of directors or officers of the Sales Co.
The company never issued and stock certificates. Tate conducted the business, signing himself as secretary and treasurer, and petitioner signed himself as president. Money was borrowed from banks on notes signed "Kelly-Springfield Sales Co., by Chas M. Bryan, Pres." and endorsed "Chas. M. Bryan." Such notes were commonly secured by collateral consisting of trucks sold by the *366 Sales Co., with accompanying vendors' liens. Some of the Sales Co.'s notes did not mention their collateral.
Throughout 1920 and 1921 the business was conducted in a very informal manner. When money was needed for operating expenses, etc., petitioner furnished it, examples of such action, as indicated by his check book, being*1866 payments of $1,000, August 30, 1920; another of $200 for city taxes on the same date; $281 in March, 1921; $300, April 4, 1921; $580, June 11, 1921; $220.18, July 7, 1921; $250 August 26, 1921; and $250 in September, 1921. The last two payments mentioned represented rent.
The Sales Co. had sold a great many trucks, but late in 1921 it had no ready money. Petitioner's total liability as endorser of the company's paper then amounted to about $250,000, with the result that his personal credit was seriously strained. He continued, however, to furnish money to, or make payments on behalf of, the business. Some of these items, paid during 1921, are: November 9, $112.62, interest on notes; November 11, $100; December, $40, for release of a judgment. Petitioner made many other payments on behalf of the Sales Co. during 1921.
In January, 1922, Tate advised petitioner that he was withdrawing from active management of the business because it was unable to afford him a salary, and he had to have some earnings. Starting about January 1, 1922, petitioner assumed the conduct of the business. He was usually at the Sales Co.'s office from eight to ten in the morning, and from three-thirty*1867 until five-thirty in the afternoon. He would also return there in the evening.
Petitioner was dissatisfied with the Sales Co.'s bookkeeping system because it did not include inventories. On April 1, 1922, he installed a new system of books and employed a new bookkeeper, named Borrell, to maintain them.
Petitioner continued to pay operating expenses of the business personally. Many of these payments were never reported to Borrell for entrance on the books. From January 1 until August, 1922, when he closed out the business, the books indicate that petitioner paid $2,503.25 of its expenses. During the period last mentioned, petitioner's efforts were directed not so much to saving the business as to trying to collect its accounts and to sell such trucks as he could in order that the profits could be used to reduce his personal liabilities incurred on behalf of the business.
Among the causes of the difficulties under which the business labored during 1921 and 1922 were the decline in earnings of truck purchasers, who, when unable to make payments on notes given the Sales Co., would turn the truck back to the company. Many of these repossessed trucks required costly repairs*1868 and then could not be sold for enough to cover the balance of the unpaid sale price. *367 In addition, the bookkeeper who had preceded Borrell had permitted truck purchasers who ran accounts for gas, oil, and repairs to apply payments they made on the purchase money notes given for the truck, instead of on the open accounts, with the result that the company's truck liens would be reduced or extinguished while the unsecured supply account mounted. This is illustrated in one instance in which a purchaser made payments totaling $750 over a period of time, all of which was applied to reduction of liens against trucks he had purchased, and during the same period he was permitted to run an open account for supplies to the amount of $959, none of which was collected. About July 1, 1922, truck prices were reduced to such an extent that in some instances new trucks could be purchased for amounts no greater than the liens the Sales Co. then held on old trucks. As a result it was useless to repossess trucks on which payments failed, since after they had been reconditioned they could not be sold as cheaply as new ones.
In May, 1922, bank examiners insisted that the City National*1869 Bank of Memphis, which was carrying notes of the Sales Co., should not retain the account. On May 31, 1922, petitioner took up a note or notes of the Sales Co., held by the bank, by substituting his personal note for $34,000. Later he was required to take similar action with respect to notes held by the Union & Planters Bank.
In August, 1922, petitioner decided to close up the business, and he did so about the middle of that month. Thereafter, he was sued on notes given by himself and Tate, personally, to cover rent for the months of August and September, and he paid $500 to effect release from these notes.
Prior to discontinuance of the business, paper discounted by the Sales Co. and secured by personal endorsements of the petitioner and Tate was held by various commercial discount companies. While he was managing the business during 1922 petitioner endeavored in various ways to work off part of his liability on such paper.
The Auto Securities Co. held notes discounted by the Sales Co., secured by two trucks and the personal endorsements of petitioner and Tate, and amounting to $9,009.05, including unpaid interest. By an agreement dated in July, 1922, the Sales Co. conveyed*1870 the two trucks to the Auto Securities Co. and was credited with $2,800 as a consideration for the transfer. By a second instrument, also dated in July, 1922, petitioner purchased the said two trucks from the Auto Securities Co., payment being made by the transfer of 180 shares of the capital stock of the Union Land & Investment Co. upon which the Auto Securities Co. paid a balance due in the amount of $8,600. The effect of these two transactions was that petitioner personally acquired the two trucks and the Auto Securities *368 Co. received $9,400 par value stock for the notes which it had held.
One of the trucks which petitioner acquired in the transaction above detailed was located in Greenville, Miss. It cost petitioner $65 to replevy the truck from its defaulting purchaser, and $47 for a Mississippi license, in order that it might be run four and one-half miles to a ferry for transport to Memphis. When petition received the truck he found that it had been stripped of everything removable and he placed it in storage. Subsequently he transferred this truck to the Washington Garage as consideration for its storage charges.
Late in 1922 petitioner took up his $34,000*1871 note to the City National Bank, dated May 31, 1922, by the transfer of certain stocks and real estate to the bank. Petitioner also settled various other of his liabilities as an endorser of notes of the Sales Co., by buying up some notes and paying off others. As late as 1925 he bought up certain of these notes from the Union & Planters Bank.
The Sales Co. has never been dissolved because State laws would required payment of all creditors and if it appeared that the liabilities were personal liabilities of petitioner and Tate, instead of being liabilities of the corporation, many of the creditors would have sued petitioner and Tate personally.
The respondent concedes that petitioner sustained a loss in the amount of $59,000 during the year 1922 by reason of the failure of the Sales Co. Petitioner contends that he sustained a net loss during 1922 in the amount of $39,686.44, and that he is entitled to apply this amount as a deduction against his net income for the year 1923. The respondent does not dispute the amount of this so-called "net loss," but asserts that it is not such a net loss as can be applied against petitioner's 1923 income.
OPINION.
LOVE: In this proceeding*1872 petitioner contends that a "net loss" in the amount of $39,686.44, sustained by him in the year 1922, was a statutory "net loss" which he is entitled to deduct from net income for the year 1923. The respondent concedes the amount of the alleged "net loss," but denies that it is deductible as claimed by petitioner.
Section 204(a) of the Revenue Act of 1921 provides:
(a) That as used in this section the term "net loss" means net losses resulting from the operation of any trade or business regularly carried on by the taxpayer * * *.
Continuing, the statute prescribes the computation of such "net losses" and provides that they may be deducted from net income of the succeeding tax year, and that the excess, if any, may be deducted *369 in computing net income of the second succeeding tax year. Since there is no dispute between the parties as to the amount of the alleged "net loss" involved, further quotation of the statute is unnecessary.
The first point for our determination is whether or not the "net loss" involved resulted from "the operation of any trade or business regularly carried on by the taxpayer." The deficiency letter stated: "It is held that since your regular*1873 business is that of a practicing attorney, this loss was not sustained in the business regularly carried on by you and it does not come under the provisions of section 204 of the Revenue Act of 1921." The Board has frequently held that the phrase "trade or business regularly carried on" does not limit net loss deductions to losses sustained in a taxpayer's sole or principal trade or business. The test is the "regularity" with which a trade or business is carried on. See , and cases there cited.
Petitioner asserts that the business which the Sales Co. was formed to conduct was in fact operated by himself, individually, during the year 1922. He contends, first, that the Sales Co. never came into being as a corporation because it was never "organized" and, alternatively, that even if the Sales Co. was ever "organized" as a corporation, yet the activities detailed for 1922 were petitioner's personal activities. The issuance of a charter creates a corporation. ; *1874 . But acceptance of that charter by the corporators is essential to the acquirement of corporate rights, privileges and liabilities. ; affd., . The evidence is that Mrs. Bryan and Mrs. Tate both refused to participate in a formal organization of the Sales Co. under its charter, and consequently that there was never a formal organization of that corporation. But regardless of the corporation's organization, we think the evidence relating to the year 1922 indicates that petitioner was then conducting operations as an individual.
When Tate withdrew in January, 1922, petitioner was faced with liabilities amounting to about $250,000 through his endorsements. Petitioner then took up the conduct of the business personally and endeavored to work out his liabilities. He devoted almost his entire time to it. In doing this, he continued the truck sales and other activities of the business and paid operating expenses, etc. We think, on the whole, that petitioner was regularly engaged in the business during 1922, within the intendment of the pertinent statute, and that*1875 the loss he sustained, which the parties agree amounted to $39,686.44, was a "net loss" which may properly be applied against his net income for the year 1923.
Judgment will be entered under Rule 50.