[866]*866OPINION.
Sternhagen :
The petitioners in all these proceedings attack respondent’s treatment of the partnership’s wool profits for 1918. Their first point is that, since the Government through the War Industries Board and its successor, the Bureau of Markets, claimed and still claims the profits in excess of 5 per cent, the respondent can not consistently tax such profits as income of the partnership. This point can not be sustained. It is in effect based on an estoppel arising from a mere claim, right or wrong, of another division of the Government. Similar claims of the Government have been held to be unfounded, McFarland v. United States, 15 Fed. (2d) 823; United States v. Avery, 30 Fed. (2d) 728; United States v. Smith, 32 Fed. (2d) 901, and the persistence of the Government’s claim against these petitioners does not establish that in fact or in law the profits were not income of the petitioners. The argument of estoppel operates equally against petitioners as for them, for are they not resisting the suit? Since they defend as owners of the profits, an argument of estoppel might, if available to either party here, serve to prevent them from denying that the income is taxable to them. But we regard the argument as- unavailable to either party, the petitioners’ right here depending not on their attitude or that of the Government but on whether the profits were legally their income. In accordance with the decisions already cited, we hold that they were, and that respondent was correct in so treating them notwithstanding the wool regulations. The decision in Dayton-Goose Creek Ry. Co. v. United States, 263 U. S. 456, cited by petitioners, is not in point. There a statute created a trust of the excess earnings, whereas here there is no statutory foundation for a trust, no claim has ever been made by the Government that one exists, and it has been judicially held that the regulations relied upon to support the Government’s right to the profits were ineffective. McFarland v. United States, supra.
Our holding would be the same, even if full force were given to the wool regulations, for they in terms recognize rightful receipt of the profits by the partnership and purport only to control disposition thereafter. This would not prevent the profits from being within petitioners’ gross income, leaving until actual disposition thereof any question of deduction. Cf. Marion S. B. Lansill, 17 B. T. A. 413. A mere constraint on their disposition by reason of a possible future contingency does not reduce either gross or net income. Cf. W. J. Ostheimer, 1 B. T. A. 18.
This also disposes of the argument of petitioners that the profits can not be taxed as accrued income until the outcome of the Govern[867]*867ment’s suit is known. Since the wool regulations have been without force to take from petitioners any part of their profits, or to impress them with a trust for the Government, such profits must be regarded as having accrued to petitioners irrespective of the regulations or the resulting litigation. As held in the McFarland and later cases, these petitioners were the rightful recipients of the profits and were not required to account for them, hold them, or dispose of them at the behest of the wool division, and it would be anomolous now to say that although they legally at once accrued to petitioners they may not be taxed at that time.
Petitioners urge that the respondent’s determination is invalid because not definitive. The deficiency notices contain the following:
It has been held by this office that the amount of $275,345.12 included in the partnership returns in an account captioned “ Whom It May Concern ”, was rightfully included therein pending a decision by the District Court of Boston.
This is in our opinion a final determination that a deficiency now exists. The words “ pending a decision by the District Court of Boston ” may lead the taxpayers to expect that at the time of the decision of the District Court consideration will be given to its effect upon their tax liability, but this does not make the present determination any less final under section 274, Revenue Act of 1926, so as to affect petitioners’ right to proceed before the Board. A determination of deficiency sufficient to support a petition requires adjudication by the Board on the merits, and we can not say that there is no deficiency because of the quoted words appended to the statement of its determination.
The petitioners next attack the inclusion of $275,345.12 in gross income of 1918 on account of wool profits on the ground that a report of an examining revenue agent indicates an erroneous method of arriving at such amount. This is an attempt to create a false issue. The Board’s function is to determine upon evidence of facts whether the deficiency is as determined by respondent. The presumption is with the respondent and the burden of proof by evidence of facts is upon the petitioner who attacks it. The respondent’s result may be correct, as it is presumed to be, notwithstanding incorrect factors of computation or incorrect methods or hypotheses m arriving at such result. Bishoff v. Commissioner, 27 Fed. (2d) 91; Helen P. Parker, 14 B. T. A. 1185. The respondent has held that in respect of the 1918 clip petitioners, on the accrual system which they voluntarily employed and for the calendar year 1918 which they voluntarily chose for their fiscal year, realized $275,345.12 more income than they had returned. To succeed in setting this aside, petitioners must show that their true income in accordance with a correct use of the method of accounting regularly employed by them [868]*868under section 212 was less. This is not adequately done by showing that in his recommendation to the Commissioner the auditing revenue agent has used a method of apportionment based on gross sales, or has failed to use an inventory as the petitioner would have preferred. There is in the record insufficient evidence to establish that the agent’s method of apportionment does not fairly reflect 1918 income or that an inventory was essential or even proper under section 203.
In the findings of fact is included a stipulated modification of the figure used in the Eingle account in the apportionment. From this it can not be said, as petitioners contend in their brief, “that the alleged excess wool profits for 1918 in the amount of $275,345.12 should in any event be reduced by $4,186.78 to $271,158.44.” If the parties by their stipulation intended it to carry such a reduction, they may use it as they intended in the settlement under Rule 50.
Some question was made in a motion at the trial as to an alleged error of respondent in duplicating income by adding to gross income as profit an amount approximating $33,000 which is said already to have been included as interest. The point is not pressed in petitioners’ brief, although it is referred to in an appendix. We think the evidence is insufficient to establish a duplication. The original returns are not in evidence nor do the facts appear to show how the income originally returned was made up.
Free access — add to your briefcase to read the full text and ask questions with AI
[866]*866OPINION.
Sternhagen :
The petitioners in all these proceedings attack respondent’s treatment of the partnership’s wool profits for 1918. Their first point is that, since the Government through the War Industries Board and its successor, the Bureau of Markets, claimed and still claims the profits in excess of 5 per cent, the respondent can not consistently tax such profits as income of the partnership. This point can not be sustained. It is in effect based on an estoppel arising from a mere claim, right or wrong, of another division of the Government. Similar claims of the Government have been held to be unfounded, McFarland v. United States, 15 Fed. (2d) 823; United States v. Avery, 30 Fed. (2d) 728; United States v. Smith, 32 Fed. (2d) 901, and the persistence of the Government’s claim against these petitioners does not establish that in fact or in law the profits were not income of the petitioners. The argument of estoppel operates equally against petitioners as for them, for are they not resisting the suit? Since they defend as owners of the profits, an argument of estoppel might, if available to either party here, serve to prevent them from denying that the income is taxable to them. But we regard the argument as- unavailable to either party, the petitioners’ right here depending not on their attitude or that of the Government but on whether the profits were legally their income. In accordance with the decisions already cited, we hold that they were, and that respondent was correct in so treating them notwithstanding the wool regulations. The decision in Dayton-Goose Creek Ry. Co. v. United States, 263 U. S. 456, cited by petitioners, is not in point. There a statute created a trust of the excess earnings, whereas here there is no statutory foundation for a trust, no claim has ever been made by the Government that one exists, and it has been judicially held that the regulations relied upon to support the Government’s right to the profits were ineffective. McFarland v. United States, supra.
Our holding would be the same, even if full force were given to the wool regulations, for they in terms recognize rightful receipt of the profits by the partnership and purport only to control disposition thereafter. This would not prevent the profits from being within petitioners’ gross income, leaving until actual disposition thereof any question of deduction. Cf. Marion S. B. Lansill, 17 B. T. A. 413. A mere constraint on their disposition by reason of a possible future contingency does not reduce either gross or net income. Cf. W. J. Ostheimer, 1 B. T. A. 18.
This also disposes of the argument of petitioners that the profits can not be taxed as accrued income until the outcome of the Govern[867]*867ment’s suit is known. Since the wool regulations have been without force to take from petitioners any part of their profits, or to impress them with a trust for the Government, such profits must be regarded as having accrued to petitioners irrespective of the regulations or the resulting litigation. As held in the McFarland and later cases, these petitioners were the rightful recipients of the profits and were not required to account for them, hold them, or dispose of them at the behest of the wool division, and it would be anomolous now to say that although they legally at once accrued to petitioners they may not be taxed at that time.
Petitioners urge that the respondent’s determination is invalid because not definitive. The deficiency notices contain the following:
It has been held by this office that the amount of $275,345.12 included in the partnership returns in an account captioned “ Whom It May Concern ”, was rightfully included therein pending a decision by the District Court of Boston.
This is in our opinion a final determination that a deficiency now exists. The words “ pending a decision by the District Court of Boston ” may lead the taxpayers to expect that at the time of the decision of the District Court consideration will be given to its effect upon their tax liability, but this does not make the present determination any less final under section 274, Revenue Act of 1926, so as to affect petitioners’ right to proceed before the Board. A determination of deficiency sufficient to support a petition requires adjudication by the Board on the merits, and we can not say that there is no deficiency because of the quoted words appended to the statement of its determination.
The petitioners next attack the inclusion of $275,345.12 in gross income of 1918 on account of wool profits on the ground that a report of an examining revenue agent indicates an erroneous method of arriving at such amount. This is an attempt to create a false issue. The Board’s function is to determine upon evidence of facts whether the deficiency is as determined by respondent. The presumption is with the respondent and the burden of proof by evidence of facts is upon the petitioner who attacks it. The respondent’s result may be correct, as it is presumed to be, notwithstanding incorrect factors of computation or incorrect methods or hypotheses m arriving at such result. Bishoff v. Commissioner, 27 Fed. (2d) 91; Helen P. Parker, 14 B. T. A. 1185. The respondent has held that in respect of the 1918 clip petitioners, on the accrual system which they voluntarily employed and for the calendar year 1918 which they voluntarily chose for their fiscal year, realized $275,345.12 more income than they had returned. To succeed in setting this aside, petitioners must show that their true income in accordance with a correct use of the method of accounting regularly employed by them [868]*868under section 212 was less. This is not adequately done by showing that in his recommendation to the Commissioner the auditing revenue agent has used a method of apportionment based on gross sales, or has failed to use an inventory as the petitioner would have preferred. There is in the record insufficient evidence to establish that the agent’s method of apportionment does not fairly reflect 1918 income or that an inventory was essential or even proper under section 203.
In the findings of fact is included a stipulated modification of the figure used in the Eingle account in the apportionment. From this it can not be said, as petitioners contend in their brief, “that the alleged excess wool profits for 1918 in the amount of $275,345.12 should in any event be reduced by $4,186.78 to $271,158.44.” If the parties by their stipulation intended it to carry such a reduction, they may use it as they intended in the settlement under Rule 50.
Some question was made in a motion at the trial as to an alleged error of respondent in duplicating income by adding to gross income as profit an amount approximating $33,000 which is said already to have been included as interest. The point is not pressed in petitioners’ brief, although it is referred to in an appendix. We think the evidence is insufficient to establish a duplication. The original returns are not in evidence nor do the facts appear to show how the income originally returned was made up. The evidence that petitioners’ bookkeeping practice was such that interest was habitually recorded on outstanding accounts and that sales receipts were for accounting purposes classified partly as interest and partly as profit can not be translated into a finding of fact or conclusion of law that the deficiency determined by respondent includes a duplication in income of about $33,000 already accounted for. Respondent denies this, and we think the petitioners have failed to prove it.
The petitioners’ contention that not only the “ excess ” profits of $275,345.12 failed to accrue as income in 1918 but also that $229,605.56, already returned as income by petitioners, should be held as not yet accrued in 1918 is in our opinion not well founded. It lacks support in law as well as in evidentiary fact. Petitioners adopted of their own volition an accrual basis of accounting and a calendar year. Notwithstanding this, they contend now that the profit on the “ season’s business ” did not accrue as income until the clip was all sold in 1919. We think the profits from sales made in 1918 may properly, under petitioners’ method of accounting, be treated as 1918 income, Wankinco Bog Co., 16 B. T. A. 386, and in the absence of evidence that such profits were in fact less than the amount recognized by respondent in his determination of deficiency, such determination is in this respect sustained.
[869]*869An issue argued in petitioners’ brief as to the Hillsborough Mills account can not be definitely ascertained from the pleadings and record of the trial. The point argued in brief is that the financing charges of $55,659.62 (after a concession by petitioners that $44,476.16 of an originally disputed amount of $100,135.78 is not open to attack) have been erroneously included by respondent in accrued income of 1918. This is predicated on an assumption of fact that the petitioners omitted any such amount from the return of gross income, that the examining revenue agent added the amount to gross income, and that the respondent adopted this and carried it into his determination of deficiency. But the issue is pleaded differently, being based upon an apparent error of respondent in interpreting petitioners’ returns as if deduction had been made of bad debts on this account, which interpretation respondent in answer denies. The return is not in evidence, nor is it otherwise clear in evidence what is the foundation for the issue. The subject is expressly treated in the revenue agent’s report, although with some equivocation as between a deduction of bad debts and an exclusion from gross income. The deficiency notice makes no direct reference to the subject, and we have no inclination to search it out independently. In this condition of the record, there would be reason to hold that no error in respondent’s determination has been established.
We are of opinion however that on the merits of the issue as argued by petitioners’ counsel, the decision must go against them on this point. From the only party to the financing transactions who testified, it appears that, although there was no written agreement that the Mills should pay the financing charges, it was always recognized that the charges were proper and earned. Bills were consistently rendered for them and not disputed. Account was taken of them by the partnership, notwithstanding that such account was specially kept and not reflected in the profit and loss statement or announced in reports for banking or other credit. The subsequent payment is evidence of a subsisting agreement throughout. Therefore we think that the financing charges were earned, and, under petitioners’ method of accounting, accrued in 1918 as determined by respondent.
The petitioner Jacob F. Brown in Docket 16469 presents an issue in addition to those arising through the partnership and having no effect upon the other petitioners. He deducted $72,961.82, the cost of the Japanese bonds which had been sequestered by the German Government while being held for petitioner by the Deutsche Bank. The respondent apparently disallowed the deduction. It is not clear whether petitioner treats the deduction as that of a worthless claim [870]*870against the Deutsche Bank or as that of a loss of the bonds. The facts are undisputed so far as they go, and petitioner relies entirely on United States v. S. S. White Dental Mfg. Co., 274 U. S. 398, as authoritatively supporting his right to the deduction.
The White case involved the sequestration by the German Government of all the assets of a corporation in Germany which was indebted to the taxpayer and the stock of which the taxpayer owned. The seizure of the assets in 1918 left nothing to the taxpayer but a claim of doubtful or remote effectiveness against Germany, then a belligerent nation at war with the United States. The court held that the stock and open accounts held by the taxpayer, all of which were entirely subject to German control, were in 1918 so unlikely to be recovered and that the claim was so remotely likely to succeed that the investment could reasonably be called a loss.
The situation of this petitioner was not quite the same. The value of these bonds rested ultimately not with Germany but with Japan. Their sequestration by Germany might conceivably be overcome by Japan’s refusal to recognize it. But as a practical matter, petitioner’s property had been taken from him and he was helpless to secure its return except, so far as he knew, by arduous, prolonged and uncertain means. The chances of recovery were little, if any, more favorable than those of the taxpayer in the White case, supra. Later when he recovered the bonds he treated them as income upon his return for the year of recovery. We are of opinion that respondent was not justified in disallowing the loss for 1918, and in this respect his determination as to this petitioner is reversed.
Reviewed by the Board.
Judgment in each froceeding will be entered under Bule 50.