Opinion
Docket No. 7276.
1946-10-8
ROBERT S. SEESE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Wilfrid L. Burke, Esq., for the petitioner. Wesley A. Dierberger, Esq., for the respondent.
Fees paid by a partnership to attorneys for services rendered in connection with securing the release of a partner from the armed forces to enable such partner to resume active management of the partnership, held, not deductible business expense. Wilfrid L. Burke, Esq., for the petitioner. Wesley A. Dierberger, Esq., for the respondent.
Respondent determined a deficiency in petitioner's income tax liability for 1941 in the amount of $1,054.58. The question is whether certain legal expenses are properly deductible. Petitioner filed his return with the collector of internal revenue for the eastern district of Michigan, at Detroit. The case was submitted on oral testimony and exhibits.
FINDINGS OF FACT.
Petitioner is an individual, residing in Detroit, Michigan. Petitioner and N. B. Kelly were partners in the Automatic Switch Co., hereinafter referred to as the company. During 1941 petitioner was the only active partner and all the partnership's net income for that year was distributed to petitioner and reported by him.
The company manufactured high voltage electrical switches, called circuit breakers, for power companies. Early in 1941 the company employed from 18 to 25 men.
Petitioner graduated from the University of Illinois with a M.S. degree in 1913. From 1913 to 1927 petitioner worked as an electrical engineer for General Electric, Western Electric, and Smith County Electric Co., respectively. From 1927 to the present time petitioner has worked with the company. Petitioner's activities in connection with the company's business involved contacting power companies' engineers. Petitioner discussed with these engineers their switch requirements. He designed switches for special purposes, which, if acceptable to the power companies, were manufactured by the company. Petitioner was responsible for procuring the necessary materials, supervising construction, and checking the operation after installation. There was no one hired by the company in 1941 who was able to perform these duties.
From 1918 to 1922 petitioner was commissioned as ensign in the United States Navy. From 1938 to 1941 petitioner had a commission as lieutenant commander in the United States Naval Reserves. After 1939 petitioner had a number of assignments of from two to three weeks duration on active duty with the Navy. During these periods of duty petitioner managed the company's affairs on week ends and leaves. On April 15, 1941, petitioner was put on permanent duty by the Navy in the Great Lakes Naval District. Petitioner attempted in April to postpone this permanent assignment because the company's business was expanding, due to war activities, and he felt his absence would have an unfavorable effect on the company's operations. Petitioner made a trip to Washington early in April to obtain a deferment, but was unsuccessful. Prior to April 15, but not thereafter, the company made efforts to hire someone to take petitioner's place, but was unable to do so. After petitioner's assignment to permanent duty, his wife attempted to manage the business, but was not qualified for such a job. The business rapidly deteriorated.
Petitioner's wife, on behalf of the company and without consulting petitioner, hired attorneys late in May 1941 to secure petitioner's release from the Navy. Petitioner's wife, on behalf of the company, agreed to pay such attorneys $2,200 if and when they successfully secured such release. These attorneys sent a representative to Washington, who negotiated with the Navy. As a result of these efforts petitioner was placed on inactive duty July 4, 1941, and his resignation was accepted by the Navy in September 1941. The attorneys were paid the agreed price of $2,200 for these services by company check dated September 6, 1941, and signed by petitioner's wife.
The partnership, on its return for 1941, deducted the amount of $2,200 paid the attorneys from its gross income, reporting a net income of $22,355.69. Petitioner, on his individual return for 1941, reported the partnership net income of $22,355.69 and a total net individual income for that year of $24,701.30. Respondent determined that the $2,200 paid the attorneys was not a proper deduction from the partnership gross income and accordingly increased petitioner's individual income by that amount. In the the statement accompanying the deficiency determined, respondent stated:
(a) You reported income in the amount of $22,355.69 from the business known as Automatic Switch Company, Detroit, Michigan, on your return as filed which has been increased by $2,200.00 to $24,555.69.
It is held that the attorney's fee of $2,200.00 claimed as a deduction from gross income under Section 23(a) of Section 23(a)(2) of the Internal Revenue Code, as amended is not a proper deduction from gross income for the taxable year 1941.
OPINION.
HILL, Judge:
Petitioner mentions section 23(a)(1) and (2) of the Internal Revenue Code in support of his contention that the legal fees here involved are deductible, but, since petitioner admits that the expense involved was incurred and paid by the company, it is clear that section 23(a)(2), which applies only to individuals, is not applicable. Respondent stated on brief that petitioner was relying only on section 23(a)(1), and this statement was not denied by petitioner in his reply brief. We consider, therefore, that the present controversy properly involves only section 23(a)(1).
Respondent contends that the legal expense was not an ordinary and necessary expense incurred in carrying on the company's business, within the meaning of section 23(a)(1). Petitioner contends that the expense was incurred in carrying on the company's business and that it was ordinary and necessary. We think respondent must be sustained.
We think the expense involved was essentially personal in nature and, therefore, can not be considered ordinary and necessary business expense. Drawing the line between personal and business expenses is often difficult. Some expenses seemingly involve both personal and business elements, but we think expenses such as the one involved here, which results from a personal situation of the individual concerned as distinguished from any ordinary and customary characteristic of the business, are essentially personal rather than business expenses. The expense here involved was incurred in order to adjust petitioner's personal situation so as to enable him to engage in the company's business. The present situation seems to us analogous in principle to those wherein a man incurs expenses to secure freedom from a mental institution in order to manage his own property or a woman pays nursemaids to care for her children to enable her to work outside the home. Eugene E. Hinkle, 47 B.T.A. 670; Henry C. Smith, 40 B.T.A. 1038; affirmed per curiam, 113 Fed. (2d) 114; Mildred A. O'Connor, 6 T.C. 323. In all these situations, including the present one, the expense is directed to freeing an individual from a situation, personal in nature, in order to enable such individual to engage in business. Such expenses are enabling expenses based on personal consideration, rather than those of carrying on a business. They are in principle similar to those incurred by a commuter or a student for specialized education. They are preliminary to the carrying on of business and derive essentially from the particular individual's personal requirements. We think the reasoning of the cases cited above controls the present situation. Since we consider the expense essentially personal in character, although incurred and paid by the company, it follows that such expense can not be considered an ordinary and necessary business expense. We hold, therefore, that respondent correctly disallowed the deduction.
Decision will be entered for the respondent.