Heilbroner v. Commissioner

34 B.T.A. 1200, 1936 BTA LEXIS 585

• Court: United States Board of Tax Appeals
• Decided: October 22, 1936
• Docket: Docket No. 71698.
• Status: Published

Opinions

OPINION.

Sternhagen :

The Commissioner determined a deficiency of $450.75 in petitioner’s individual income tax for 1930. Income was increased because of an omission of $120 in dividends reported. This item is not contested. The petition assails the following determination:

2. Commissions for collecting income, $583.13, and business expenses, $1,200, for keeping records, have been disallowed as deduction from income, inasmuch as you are not engaged in business. The expenses in question are held to be personal.

By amended petition, the income included by the taxpayer on her return is sought to be reduced by $19,109 received under life insurance policies of her deceased husband. The facts as to this item are stipulated and need not be specially found. They are essentially the same

as those in Edith M. Kinnear, 20 B. T. A. 718; and, following that decision, the amount of $19,109 is held to have been properly included by the taxpayer in her gross income.

The evidence shows that petitioner was a widow who, upon her husband’s death, received a substantial estate, mostly in securities. She had no business experience. She placed some'of her securities with a trust company to collect the income, and paid the trust company $583.13 as its charge or commission for such service. Her brother had an individual office and a secretary or bookkeeper. Petitioner’s accounts and affairs were to some extent looked after by this secretary, and, by arrangement with her brother, petitioner paid $1,200 as her proper share of the secretary’s compensation and the office rent. This she deducted on her return, and the Commissioner disallowed the deduction.

Unless the deduction is within the fair intendment of the statute, Revenue Act of 1928, it may not be taken. New Colonial Ice Co. v. Helvering, 292 U. S. 435; Helvering v. Inter-Mountain Life Insurance Co., 294 U. S. 686. There is no deduction among those set forth in the statute which covers these expenditures. It would be an unwarranted distortion of language to say that they were “ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business” (sec. 23 (a)). Petitioner was not carrying on any trade or business. Even the “very comprehensive term” referred to in Flint v. Stone Tracy Co., 220 U. S. 107, does not reach her for, as shown by this evidence, there was nothing about which petitioner was employed and nothing that occupied her time, attention, or labor for livelihood or profit. She did not manage her estate or direct its management. She merely received income from investments, and this is not a trade or business. Gertrude D. Walker, 20 B. T. A. 937; affd., 63 Fed. (2d) 351; certiorari denied, 289 U. S. 746. In Marion Stone Burt Lansill, 17 B. T. A. 413, 425; aff'd., 58 Fed. (2d) 512, the Board said:

How can it be said that these petitioners were carrying on a trade or business? They were the passive recipients of royalties which inured to them by reason of their ancestor’s will and the court’s decree. They carried on no activity in which they were employed and there was nothing to “occupy their time, labor or attention for the purpose of livelihood or profit,” as the term “business” has been sometimes broadly defined. Bouvier’s Law Dictionary; Flint v. Stone Tracy Co., 220 U. S. 107. See also Charles L. Suhr, 4 B. T. A. 1198; Albert M. Briggs, 7 B. T. A. 409; Ignats Schwinn, 9 B. T. A. 1304; B. H. Kizer, 13 B. T. A. 395. It is not enough to say that by virtue of their contract with the attorneys this percentage was a “charge against the income when derived,” because, while such charges may be treated as deductible expenses if incident to a trade or business, as in La Monte v. Commissioner, 32 Fed. (2d) 220; American Cemetery Co. v. United States, 28 Fed. (2d) 918, the statutory language expressly restricts the charge to that of trade or business. This also distinguishes Kornhauser v. United States, 276 U. S. 145, in which the attorneys’ fees were incurred as an incident of litigation of an undisputed business.

Article 121 of Regulations 741 can not expand the statute, and it does not purport to. It deals only with business expenses, and enumerates some of them, including management expenses and commissions. Expenses and commissions outside of business are beyond the scope of the article, as they are of the statute. The Commissioner has made this determination, and defends it as a matter of law. Upon the law, it must be decided; and since there is nothing in the statute permitting the deduction, its disallowance must be upheld. It may be added that had Congress, instead of confining the deduction to business expenses, intended to broaden it as it is now suggested that the statute should be construed, it could plainly have described the deduction to include the expenses incident to the earning or receipt of income irrespective of trade or business.

Reviewed by the Board.

Judgment will be entered for the respondent.

Leech dissents.

1 Aet. 121. Business expenses. — Business expenses deductible from gross income include the ordinary and necessary expenditures directly connected with or pertaining to the taxpayer’s trade or business, except the classes of items which are deductible under the provisions of articles 141-271. The cost of goods purchased for resale, with proper adjustment for opening and closing inventories, is deducted from gross sales in computing gross income. (See article 55.) Among the items included in business expenses are management expenses, commissions, labor, supplies, incidental repairs, operating expenses of automobiles used in the trade or business, traveling expenses while away from home solely in the pursuit of a trade or business (see article 122), advertising and other selling expenses, together with insurance premiums against fire, storm, theft, accident, or other similar losses in the case of a business, and rental for the use of business property. A taxpayer is entitled to deduct the necessary expenses paid in carrying on his business from his gross income from whatever sourse. As to items not deductible, see section 24 and articles 281-284.