1928 BTA LEXIS 3523">*3523 Disallowance by the respondent of a deduction from gross income on account of a worthless debt sustained.
12 B.T.A. 486">*486 This is a proceeding for the redetermination of a deficiency in income tax for the year 1921 in the amount of $12,000. The only error assigned is that the Commissioner disallowed the deduction from gross income for 1921 of a worthless debt in the amount of $20,000.
FINDINGS OF FACT.
The petitioner is a resident of Chicago, Ill., and for many years has been engaged in the wholesaling of general merchandise.
In 1915 the petitioner's brother, Louis Phillipson, was a member of the partnership of Phillipson & Rashman, engaged in a retail general merchandise business in Chicago. Rashman's father, Joseph Rashman, had advanced approximately $20,000 to Phillipson & Rashman to enable his son to enter the business. In 1915 the firm had been in business for approximately two years. It was not doing a large business and Joseph Rashman came to the conclusion that it was not going to be a financial success. He therefore approached the petitioner1928 BTA LEXIS 3523">*3524 and informed him that he was afraid that his investment made for his son would be lost and he desired his son to get out of the business, unless the petitioner would guarantee the account. The petitioner was anxious that the business of Phillipson & Rashman should be a financial success inasmuch as his brother was connected with it and the firm name bore his family name. He therefore guaranteed Joseph Rashman's investment in the firm and either gave Rashman a note for $20,000 or gave him credit on his books to that amount. He then called upon his brother to execute a note in his favor for the amount of $20,000 with an understanding or provision that his brother should pay interest thereon to the extent of $25 per week. Neither the note nor the terms of the note are in evidence, the same having been lost or misplaced. After the guarantee of Joseph Rashman's investment in the business by the petitioner the business conducted under the firm name of Phillipson & Rashman was conducted by Louis Phillipson, the petitioner's brother, and apparently from some time in 1915 Rashman had no further active interest in the firm. That business became insolvent in 1917 and the 12 B.T.A. 486">*487 assets1928 BTA LEXIS 3523">*3525 were sold at auction. The amount realized was only enough to cover Louis Phillipson's liabilities to others than the petitioner. The only asset which Louis Phillipson had in 1917, after the sale of the retail general merchandise business, was real estate on Judd Street, Chicago, of a value of approximately $5,000 from which Louis Phillipson received a rental of approximately $30 to $50 per month.
About six weeks after Louis Phillipson had disposed of the retail general merchandise business conducted under the name of Phillipson & Rashman, he went to work for the petitioner as a floor walker at a salary of $25 per week. Louis Phillipson made no payments of interest upon his note from September, 1916, and the petitioner never thereafter made any demand upon him for the payment of either interest or principal. He realized that Louis Phillipson received only enough income to live upon and that it was impossible for him to make any payment upon the debt except from a sale of his property in Judd Street. Louis Phillipson's salary was advanced in 1919 or 1920 to $35 per week and later to $40 per week. The fact that Louis Phillipson could not pay the amount was realized by the petitioner1928 BTA LEXIS 3523">*3526 in 1918, 1919, and 1920. In 1927 or 1928, the petitioner paid to the estate of Joseph Rashman the $20,000 guaranteed in 1915.
In his income-tax return for 1921, the petitioner deducted from gross income as a debt ascertained to be worthless and charged off his books of account during the year $20,000, representing the indebtedness to him of his brother, Louis Phillipson. The Commissioner has disallowed the deduction of the $20,000 in question.
OPINION.
SMITH: The petitioner claims the right to deduct from his gross income of 1921 $20,000 representing an alleged debt ascertained to be worthless and charged off the petitioner's books of account in 1921. The evidence with respect to the creation of this debt and the ascertainment of the worthlessness of it in 1921 is confusing and conflicting. The petitioner guaranteed an investment of $20,000 by Joseph Rashman in a partnership business conducted by the petitioner's brother and Joseph Rashman's son. Apparently a note was given but the details concerning the note are lacking. Joseph Rashman died within the last year or two and the petitioner made good his guarantee of the account by the payment in 1927 or 1928. He claims1928 BTA LEXIS 3523">*3527 to have taken a note of his brother for the $20,000 which he had guaranteed to reimburse to Joseph Rashman in case the business of Phillipson & Rashman proved to be a failure, but his recollection as to whether a note was taken is very hazy and the note was last seen by an employee of the petitioner in 1917 or 1918.
12 B.T.A. 486">*488 Even if the debt were a bona fide obligation of Louis Phillipson to the petitioner prior to 1921, the evidence very clearly indicates that the account, if not worthless prior to 1921, was quite as worthless in 1917, 1918, 1919 and 1920 as in 1921. The petitioner's brother owned a few flats on Judd Street in Chicago, which had a value of only about $5,000 in 1917 and in 1921. The petitioner's brother had no other property at the close of 1917 and he was working as a floor walker for the petitioner at a salary of $25 per week. In 1921 his salary was $40 per week. Therefore, the financial condition of the brother was no worse in 1921 than in 1917. The petitioner deposed as bollows:
Q. You figured he [Louis Phillipson] ought to be able to pay you $20,000?
A. In a certain time.Q. In a certain time. Did you ever ask him to make an arrangement1928 BTA LEXIS 3523">*3528 to pay you so much per week?
A. Well yes, he says he could not pay.Q. He could not pay it, and you realized that in 1918, 1919 and 1920?
A. Yes. Q. That he could not possibly pay it? A. Yes.Q. On the salary he was getting and the small rent he was getting?
A. Yes, sir.The action of the respondent in disallowing the deduction of $20,000 from gross income of 1921 as a bad debt ascertained to be worthless and charged off during the year is sustained.
Judgment will be entered for the respondent.