Perry v. Commissioner

1960 T.C. Memo. 101, 19 T.C.M. 540, 1960 Tax Ct. Memo LEXIS 189
United States Tax Court·Decided May 24, 1960·No. Docket No. 69717.·Unpublished

Opinion

Leon W. Perry and Lucille F. Perry v. Commissioner.
Perry v. Commissioner
Docket No. 69717.
United States Tax Court
T.C. Memo 1960-101; 1960 Tax Ct. Memo LEXIS 189; 19 T.C.M. (CCH) 540; T.C.M. (RIA) 60101;
May 24, 1960

*189 Held, that petitioners were on the cash receipts and disbursements method of accounting; and accordingly, that their state income taxes were deductible only in the year when paid.

J. Elton Mitchiner, Esq., First Citizens Bank Building, Raleigh, N.C., for the petitioners. John L. Ridenour, III, Esq., for the respondent.

PIERCE

Memorandum Findings of Fact and Opinion

PIERCE, Judge: Respondent determined deficiencies in petitioners' income tax, and additions to tax for substantial underestimate of estimated tax (section 294(d)(2) of the 1939 Code) and for underpayment of estimated tax (section 6654 of the 1954 Code), as follows:

Additions to Tax
Sec. 294
YearDeficiency(d)(2)Sec. 6654
1954$6,821.80$5,751.01
1955394.67$1,993.65

No appeal has been taken with respect to the year 1955.

The sole issue for decision is whether the petitioners may deduct, as an itemized nonbusiness deduction on their 1954 return, the amount of their liability for state income taxes for said year, which they did not pay until the succeeding year 1955. The 1954 addition to tax under section 294(d)(2) is in issue only to the extent that the amount thereof may be affected by a redetermination of the deficiency for said year.

Findings of Fact

Some of the facts were stipulated. The stipulation of*191 facts, together with the exhibits annexed thereto, is incorporated herein by reference.

Petitioners Leon W. Perry and Lucille F. Perry are husband and wife, residing in Henderson, North Carolina. For the calendar year 1954, they filed a joint Federal income tax return with the district director of internal revenue at Greensboro, North Carolina.

For several years prior to 1951, petitioner Leon Perry (hereinafter referred to as the petitioner) was engaged as a sole proprietor in the manufacture and sale of lumber products in Henderson, trading under the name of Perry Lumber Company. The books of the proprietorship were kept, and the income from its operations was computed, according to an accrual method of accounting.

In the latter part of 1950 or early in the year 1951, petitioner personally acquired in his individual capacity certain timber leases and/or contracts for cutting timber in the State of New Mexico. He thereupon caused to be organized two corporations, each of which bore the name of Perry Lumber Company, Inc. One of these corporations was incorporated under the laws of North Carolina (hereinafter called the North Carolina corporation) and the other was incorporated*192 under the laws of Colorado (hereinafter called the Colorado corporation). Immediately after formation of the North Carolina corporation, petitioner transferred all of the assets of his proprietorship to said corporation, in exchange for its capital stock. Petitioner and his wife thereupon moved to Colorado, where he supervised timber and lumber mill operations in New Mexico and Colorado. Petitioner's brother was left in charge of the North Carolina corporation.

In the latter part of the year 1950, petitioner employed an attorney who also had training as an accountant, as a business and tax adviser. He prepared the Federal income tax returns for petitioner and his wife for the years 1951, 1952, and 1953. In connection with the preparation of the 1951 return, this adviser suggested to the petitioner that he and his wife accrue and deduct on their 1951 return their liability for 1951 state income taxes. The petitioners acceded to this suggestion, and on petitioners' 1951 return, a nonbusiness deduction from adjusted gross income was taken for 1951 state income taxes. Petitioners likewise claimed nonbusiness deductions from adjusted gross income for 1952 and 1953 state income taxes on*193 their respective returns for those years. Petitioners actually paid their 1951, 1952, and 1953 state income taxes during the years 1952, 1953, and 1954, respectively.

Analysis of petitioners' 1954 return

For the taxable year 1954, petitioners' return was prepared by another individual, an accountant employed to handle petitioner's tax affairs. On said return, the petitioners reported the following:

Income Items:
Salaries$ 6,200.00
Interest300.00
Rentals (Leon Perry)5,094.77
Commissions10,000.00
Installment gain225.6

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Perry v. Commissioner, 1960 T.C. Memo. 101, 19 T.C.M. 540, 1960 Tax Ct. Memo LEXIS 189 (tax 1960).

1960 T.C. Memo. 101 (Perry v. Commissioner) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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2 T.C. 216 (U.S. Tax Court, 1943)
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3 B.T.A. 231 (Board of Tax Appeals, 1925)