(dissenting).
I cannot agree with the conclusion reached by the majority. In my judgment the Collector of Internal Revenue dealt fairly, almost generously, with the plaintiff.
Here was a case of a one-man company owned by Robert R. Stephens, who, upon becoming a civilian employee of the Army Ordnance Department on February 1, 1941, contracted with his brother to become vice president and general manager of the company. He agreed to pay him one-half the profits of the company as compensation during Robert R. Stephens’ absence. Under this contract T. C. Stephens was paid $176,984.99, and this salary compensation was reported as a deduction by the plaintiff company for the year 1941. The Commissioner of Internal Revenue held that the compensation was unreasonable as a salary deduction under the terms of the statute, and disallowed $61,984.99, allowing the company $115,000.00 as an expense for the item indicated. The pertinent part of Section 23 of the Internal Revenue Code, 26 U.S.C.A. § 23, lists among the items allowed taxpayers as deductions the following: “All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * *
The regulation issued pursuant to the statute authorizes a deduction for any salary paid provided the amount is reasonable under all the circumstances, but states that the circumstances to be taken into consideration are those which existed at the date when the contract for services was made.
I doubt whether the circumstances at the time of the making of the contract should be the sole governing factor, although they should of course be the major consideration.
What were the circumstances at the time of the making of this contract? Robert R. Stephens was the sole owner of plaintiff company. He was largely responsible for its success. He was very familiar with ordnance matters, having worked with the Ordnance Department during World War I. He held an exclusive contract for the sale of machine tools in several mid-western states. At the time of the contract he became a civilian employee of the Army Ordnance Department. He certainly was familiar with the conditions that then existed.
At that time Europe was aflame with war, and the ideas of world-wide conquest on the part of two dictators in Europe was a matter of common knowledge. As early as 1938 defense preparations began to increase greatly and defense expenditures in the United States as a matter of security were largely increased. The President had recommended many thousands of additional planes and an increase in defense equipment of all kinds. The appropriations for the Army, Navy, and Marine Corps were *1018nearly twice as large in 1940 as in 1938, and in 1941 were six times as large as in 1940. The President’s budget which was submitted in early January 1941, nearly a month before the contract in question was made, had asked for the large 1941 increases. It was a foregone conclusion that the appropriation would be made. The average citizen, to say nothing of one who was in the business in which Robert Stephens was engaged, was familiar through radio, press, committee hearings, and public documents with these increasing defense preparations.
This naturally called for great expansion of the machine-tool business. Does anyone think for a moment that Robert R. Stephens would have made such a contract in these circumstances with anyone else than his brother? If the Stephenses didn’t know, they were probably the only living Americans who had reached the years of discretion who were not fully cognizant of the fact that our country was on the threshold of a lavish expenditure for defense equipment and of a consequent great increase in the manufacture and distribution of machine tools. It is true the record is to the effect that neither of them expected anything like the expansion that came during the year 1941, but anyone as experienced as Robert R. Stephens in this line of business, and who was holding a position 'in connection with the Army Ordnance Department, certainly must have known that there was a likelihood of considerable increase in the affairs of his company, holding as it did, exclusive contracts for a large area with several manufacturers of machine tools.
It is the universal rule, based on human experience, that family arrangements áre scrutinized closely.
I have no doubt that the profits were much greater than either of the brothers expected. No doubt T. C. Stephens worked long hours and deserved increased compensation, but prior to this contract he had never earned more than $15,000 a year. The allowance' which the Commissioner made of $115,000 as that portion of his salary which was entitled to be claimed as a deduction by the company which paid him it seems to me was entirely reasonable.
On the question of whether the circumstances at the time of the making of the contract should be the sole governing factor I quote from Hoffman Radio Corp. v. Commissioner, 9 Cir., 177 F.2d 264, 266, as follows: “It is not thought that the regulations, considered in their entirety, establish the hard and fast rule that a contingent contract, fair and equitable when made, becomes permanently immune from scrutiny regardless of how radically conditions may alter; and that is what petitioner’s legal argument amounts to. Acceptance of the argument would in many instances nullify the plain language of the statute. The key provision of the regulation, we think, is the statement that in any event the allowance for compensation may not exceed what is reasonable considering all the circumstances. ■ * * * ”
To the same effect is the holding in Charles E. Smith & Sons Co. v. Commissioner of Internal Revenue, 6 Cir., 184 F.2d 1011 (Per curiam opinion). There Hall C. Smith was sole shareholder and president of taxpayer, a shirt manufacturer. In 1941 the company obtained a war contract to manufacture tow targets. Smith’s annual salary for the years 1936 to 1941, inclusive, fluctuated between $4,800 and $10,800; in 1941 it was $4,800. In 1941 a resolution was adopted increasing his salary to $52,000 for the year ending July 31, 1942. In 1942 a resolution was adopted authorizing payment to him of 15% of the sales for the coming year. This resulted in a salary of $87,265.08. The Tax Court said that a reasonable allowance for the first year was $25,000 a'nd for the second year $30,000. The Sixth Circuit held that this determination was not erroneous. The market was created by the war, not by Smith. It was held that although he worked long hours and faithfully, the increase in his compensation of nearly 1,000% for the first year and over 1,700% for the second was not reasonable. See also Wood Roadmixer Co. v. Commissioner, 8 T.C. 247.
*1019That it seems to me is a reasonable construction of the statute. However, even assuming that the circumstances at the time of the making of the contract were the sole and only factors to be considered, I think the clear circumstances of this case with the year by' year increases" in appropriations for defense materials carried with them the sources of full knowledge or at least full notice of the likelihood of a tremendous increase in plaintiff’s business. Even though the business increased much more rapidly than had been anticipated by either of the contracting parties, there was so much evidence of a substantial increase as to make it apparent that the plaintiff would have made no such contract with anyone but a member of the family. I would dismiss the petition.