Merrill Trust Co. v. Commissioner

21 B.T.A. 1409, 1931 BTA LEXIS 2193

Opinions

OPINION.

SteRNhagen:

From an examination of numerous cases already decided, from William J. Ostheimer, 1 B. T. A. 18, through Spring Canyon Coal Co. v. Commissioner, 43 Fed. (2d) 78, affirming 13 B. T. A. 189, it is apparent that a reserve set up by a taxpayer to meet future demands is not deductible as a business expense. Cf. Lucas v. American Code Co., 280 U. S. 445. While, upon detailed evidence establishing an enforceable trust, it has been held that irrecoverable payments thereto were, under the circumstances, deductible, Hibbard, Spencer, Bartlett & Co., 5 B. T. A. 464; Lemuel Scarbrough, 17 B. T. A. 317; Elgin National Watch Co., 17 B. T. A. 339, there is no reason in the present record to say that a trust was created. The petitioner, with all of its experience in trust matters, deliberately refrained from making a trust agreement or declaration. This omission can no,t be casually regarded, as by counsel’s statement that “ unfortunately perhaps for the purpose of the argument no formal trust certificate was ever made.” In the absence of such instrument or other evidence equally secure, the petitioner could resist any demands to enforce a trust or to account. The vote of the executive committee in making the three appropriations was merely to shift accounts by charging one and crediting the other. Both accounts were its own and subject to its uncontrolled disposition. To constitute a trust would require more than to label the account a pension fund.

Some attempt was made to prove a permanence and irrevocability of the fund; but it went only so far as the statement of the trust officer, who apparently had nothing to do with setting it up, that he understood that the officers contemplated the fund to be permanent and irrevocable and that he did not understand that the officers felt that petitioner could take back the principal of the fund and put it in the banking funds. This witness’ understanding of this feeling and contemplation adds nothing to the facts to warrant the conclusion that a trust existed.

The respondent correctly disallowed the deduction of the $5,000.

Reviewed by the Board.

Judgment will he entered for the respondent.