*3468 1. L. S. Ayers & Co.,1 B.T.A. 1135">1 B.T.A. 1135, followed.
2. The Commissioner was not in error when he excluded from surplus the amount paid as a commission by the petitioner for the sale of its capital stock.
*735 This is a proceeding for the redetermination of deficiencies in income and profits taxes for the calendar years 1920 and 1921 in the amounts of $835.72 and $863.77, respectively. The petitioner alleged that the Commissioner erred (1) in reducing surplus for each year by $20,000 on account of commissions paid in 1919 for the sale of the petitioner's capital stock and thereby reducing invested capital for each year by $20,000; (2) in deducting a tentative tax in the computation of current earnings available for the payment of dividends in each year; and (3) in prorating the wrong amount in each year as the income and profits-tax liability for the previous year in the computation of invested capital. The two cases were consolidated for hearing and decision.
FINDINGS OF FACT.
The petitioner is*3469 an Indiana corporation with its principal office in Indianapolis.
In 1919, a broker sold for the petitioner $200,000 par value of the petitioner's capital stock to the public at par. The broker's charge or commission for these services was $20,000, which amount it retained from the money received in the sale of the stock and in *736 1919 turned the balance over to the petitioner. The petitioner charged $800 of the commission to profit and loss in 1919, and claimed the amount as a deduction on its return. The Commissioner did not allow the deduction. The petitioner carried the remainder, $19,200, on its books at December 31, 1919, as an asset under the caption "Stock Commission."
In computing invested capital for each of the years in controversy the Commissioner deducted $20,000 from surplus, representing the above commission.
In computing the current earnings of each year available for the payment of dividends and the retirement of preferred stock the Commissioner deducted a tentative tax for the current year.
In the computation of invested capital for 1920, the Commissioner prorated $24,242, representing 1919 taxes, instead of prorating $24,147, the correct amount, *3470 to determine a deduction from surplus. In making a similar computation for 1921, he prorated $29,232.41, representing 1920 income and profits taxes.
OPINION.
MURDOCK: The Commissioner erred in deducting a tentative tax for the current year from current earnings of each year, thus reducing invested capital. . The income and profits tax liability of the previous year as finally determined must be prorated from the dates on which the installments became due in order to find the correct amount to deduct from surplus in the computation of invested capital for each year. When, in accordance with this opinion, the tax for 1920 is finally computed that amount must be prorated through 1921.
The petitioner had an account called "Stock Commission" which is treated as an asset account. At the end of 1919, this account had been reduced to $19,200, but we do not know anything about it during the taxable years. The Commissioner on account of the commission paid by the petitioner in connection with the sale of its preferred stock has deducted $20,000 from surplus in the computation of invested capital for each of the years before us. Under*3471 the circumstances we must assume that $20,000, representing this commission, has been reflected in the petitioner's surplus. The Commissioner in effect has held that surplus has been overstated by this amount of $20,000 and we have not been convinced that the petitioner has any asset as a result of the payment of this $20,000 commission which should be reflected in its surplus to the extent of $20,000, or to any extent. .
Judgment will be entered under Rule 50.