*1896 Debt ascertained to be worthless and charged off allowed as a deduction.
*230 Proceeding for the redetermination of a deficiency of $3,520.85 in income tax for 1925. The issue is whether certain accounts are deductible as bad debts.
FINDINGS OF FACT.
The petitinoer, an Oregon corporation with its principal place of business in Astoria, Oreg., in May, 1925, entered into a written contract with the Astoria Improvement Co., a corporation, for the construction of a building under terms providing for the payment to the petitioner on or before the tenth day of each month of 85 per cent of the amount it had expended on the job during the preceding month.
The petitioner discontinued work on the buiding in July, 1925, due to the failure of the Astoria Improvement Co. to make the monthly payments under the construction contract, the amount due for the work theretofore completed being in the sum of $24,417. Of this amount $2,000 was paid in June, 1925, and a like amount in July, 1925, leaving a balance due of $20,417. No part of the balance has ever*1897 been collected.
The Astoria Improvement Co. did not own the lot on which the building was to be erected. One-half of the lot was owned by a Doctor Knowlton and the other half was covered by a first mortgage held by the Astoria Savings Bank.
In May, 1925, and thereafter in 1925 the Astoria Improvement Co. endeavored, without success, to obtain funds with which to complete the construction of the building. In August or September, 1925, the petitioner, in order to assist the Astoria Improvement Co. in obtaining such funds, agreed not to file a lien against the property for the amount of its claim, and at the same time other contractors released the liens they had filed against the property.
During the latter part of 1925 the petitioner consulted its attorney with reference to the filing of a suit for the collection of the amount due and was advised not to take such action because of the financial condition of the debtor. At the close of 1925 the Astoria Improvement Co. had no cash on hand and had no other assets out of which *231 any part of a judgment for the amount due petitioner could have been collected.
On August 17, 1925, the executrix of the estate of Seid*1898 Back, acting without legal authority, executed in favor of E. P. Hawkins, president of the Astoria Improvement Co., for certain stock, two notes, one for $25,000 and the other for $15,000. In January, 1926, as the result of demands made upon the Astoria Improvement Co. for payment of the amount due petitioner, these notes, endorsed by the payee thereof and D. F. Seid, were delivered to the petitioner as security for the payment of its claim until such time as the Astoria Improvement Co. could obtain funds to pay the debt. The Astoria Improvement Co. was unable to obtain the necessary capital, and during the latter part of 1928 the petitioner brought suit and on November 13, 1929, obtained a judgment against the endorsers of the notes. It has not, however, been able to realized any money on the judgment.
On December 31, 1925, the petitioner charged off its claim of $20,417 against the Astoria Improvement Co. as worthless, and in its return for 1925 claimed the amount as a deduction. In his audit of the return the respondent disallowed the claimed deduction on the ground that the notes given as security for the payment of the debt were given in payment of the charges and were*1899 not worthless in 1925.
OPINION.
ARUNDELL: At the hearing the respondent's counsel conceded error in disallowing as a bad debt deduction the sum of $5,000 representing a loan made by the petitioner to E. P. Hawkins.
We think the evidence here fully sustains the petitioner's claim under the other item. The financial condition of the Astoria Improvement Co. was not good in May, 1925, when the construction contract was entered into, and did not improve during the remainder of the year. The land on which the building was being constructed was so encumbered that it afforded no security for petitioner, and in the hope of leaving the Astoria Improvement Co. free to raise money to proceed further, petitioner, together with others having claims against that company, refrained from filing a lien on the property. By the close of 1925 the Astoria Improvement Co. had no cash assets or other property out of which judgment for any part of the account could have been satisfied. Under such circumstances a suit on the debt would have been a useless course of procedure to take.
While our conclusion is that the debt was ascertained to be worthless in 1925 and should be allowed as a deduction*1900 in that year, it is interesting to observe that no cash has ever been realized on the notes given in 1926. The maker of the notes was a Chinese woman, executrix *232 of the estate of Seid Back, who acted without legal authority in giving the notes. E. P. Hawkins was without assets, and the other endorser, D. F. Seid, a Chinaman, had no property other than an interest in the Seid Back estate. On the sale of his interest in March, 1930, to satisfy the judgment petitioner had obtained against endorsers in 1929, there were no bidders other than petitioner, and the property purchased had little, if any, cash value.
Decision will be entered for the petitioner.