*3704 The worthlessness of a certain note had not been ascertained when it was charged off the books of the petitioner.
*857 The respondent has asserted a deficiency in income and profits tax for the year 1921 in the amount of $2,477.22. The only issue is whether a note in the amount of $9,000 had been ascertained to be worthless when it was charged off in the taxable year.
FINDINGS OF FACT.
The petitioner is an Iowa corporation with its principal office at Council Bluffs, where it was engaged in a general banking business in the taxable year.
Some time prior to June, 1921, the petitioner had discounted a series of notes of a corporation in business in Council Bluffs, under the name of Men's Fashion Shop. On June 21, all such notes then unpaid were merged and renewed in a single note for $9,000, due in 60 days from that date. This note was not paid when due.
Prior to November 20, 1921, the petitioner ascertained that the Men's Fashion Shop had borrowed money from two other banks in Council Bluffs in the respective amounts of $5,000 and*3705 $8,500, that it had outstanding notes to divers individuals in the total amount of $8,169.58, that it owed $36,000 to wholesalers for merchandise, and that the total value of its physical assets was not more than $16,000.
In conjunction with the two other interested banks, a plan was evolved to prevent the Men's Fashion Shop from going into bankruptcy and to enable it to continue in business. The three banks each contributed $4,000 to be used in compounding the debts of the shop to wholesalers who agreed to accept $12,000 in full satisfaction of their unpaid bills.
The Men's Fashion Shop on November 21, 1921, gave each of the three interested banks its note for $4,000, payable in one year, and executed a first chattel mortgage on all its assets as collateral security for the payment of the total of $12,000. On the same date it renewed its unsecured notes then due the petitioner and the other two banks in the respective amounts of $9,000, $5,000, and $8,500. *858 The renewal note received by the petitioner on such date was payable at the end of 12 months. As collateral security for the notes so renewed and for the notes due divers other persons, the Men's Fashion Shop*3706 executed a second chattel mortgage on all its assets in the amount of $30,669.58.
The petitioner received a payment on the $4,000 note in 1922 and the remainder in small installments until the whole debt was discharged at September 4, 1925. In 1924 it received a payment of $3,000 on the $9,000 note and included such payment in its income and profits-tax return for that year.
On December 9, 1921, the petitioner charged the $9,000 note off its books and in its income and profits-tax return for such year deducted the amount thereof from its gross income as a debt ascertained to be worthless and charged off in the taxable year. Upon audit the Commissioner disallowed such deduction, added $9,000 to the petitioner's income as reported, and determined the deficiency here in controversy.
OPINION.
LANSDON: The only question here is whether, in the circumstances set forth in our findings of fact, the $9,000 note of the Men's Fashion Shop was worthless when charged off the books of the petitioner at December 9, 1921. At that date the maker of the note had outstanding bills payable in the amount of $42,669.58, and its total physical assets were not woth more than $16,000. A blanket*3707 first chattel mortgage on such assets had been given as security for the notes upon which $12,000 had been advanced by banks for the purpose of compounding the claims of wholesalers. A blanket second mortgage had been given as security for the remaining obligations, including the $9,000 note in question.
The evidence is convincing that measured by the collateral security the paper secured by the second mortgage had little value. On the other hand, it is clear that at December 9 the note in question was not due, that it would not be due for nearly 12 months, and that no effort had then been made or could then have been made to enforce collection by a suit at law or otherwise. The Men's Fashion Shop was still a going concern and as the record shows was in business and able to make some payments on its obligations, including a $3,000 payment on the note in question as late as 1924 and 1925. In these conditions we are of the opinion that the note in controversy had not been ascertained to be worthless when it was charged off on December 9 of the taxable year.
Judgment will be entered for the respondent.