RP Farnsworth & Co. v. Commissioner of Internal Rev.

• Decision Date: 10 April 1953
• Docket Number: No. 14160.,14160.
• Citation: 203 F.2d 490
• Parties: R. P. FARNSWORTH & CO., Inc. v. COMMISSIONER OF INTERNAL REVENUE.
• Court: U.S. Court of Appeals — Fifth Circuit

203 F.2d 490 (1953)

R. P. FARNSWORTH & CO., Inc. v. COMMISSIONER OF INTERNAL REVENUE.

No. 14160.

United States Court of Appeals Fifth Circuit.

April 10, 1953.

R. Emmett Kerrigan, Marian Mayer, New Orleans, La., Deutsch, Kerrigan & Stiles, Ralph L. Kaskell, Jr., New Orleans, La., of counsel, for petitioner.

Maryhelen Wigle, Harry Baum, Sp. Assts. to Atty. Gen., Charles S. Lyon, Asst. Atty. Gen., Ellis N. Slack, Acting Asst. Atty. Gen., Charles W. Davis, Chief Counsel, Rollin H. Transue, Sp. Atty., Bureau of Internal Revenue, Washington, D. C., for respondent.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

The question presented is whether salaries paid by petitioner to its seven executive officers, plus contributions made by it to a pension trust fund for the benefit of the same officers, were deductible as reasonable compensation for services rendered the corporation by each of them during the years 1944 and 1945, as contemplated by Section 23(a) (1) (A) and (p) (1) (D) of the Internal Revenue Code, 26 U.S.C.A. § 23 (a) (1) (A), (p) (1) (D).

The facts as stipulated and as found by the court may be stated briefly as follows: Petitioner is the largest concern engaged in the general contracting and construction business in the State of Louisiana. Founded in 1887 by R. P. Farnsworth, it was conducted as a partnership until its incorporation in 1935, and has been continuously developed by members of the Farnsworth family. Its common stock was owned entirely by its seven executive officers who, with one exception, constituted its board of directors. These executives, during the taxable years, were a wellcoordinated team engaged in the active conduct of the business of the petitioner, and were responsible for its growth and success. Although they had assistants, the latter were men in subordinate positions, with less capacity and ability.

These executives devoted their entire time to the business of the corporation, and participated actively in fixing prices, bidding for contracts, and in the performance of contracts that were completed during the taxable years. They secured the business, managed it, assumed the responsibility for the performance of the contracts, and handled the execution thereof to completion. In doing so, they gained for petitioner the reputation of being a low-bidder, capable of a large volume of work, and the only contractor in the area equipped to perform practically all of its construction without having to sub-contract major divisions of the work.

In 1942, the taxpayer executed a pension trust agreement for the benefit of a number of its employees, including its executive officers. In 1945 the executives, as directors, reduced their salaries in order to improve the company's cash position for business expansion, and transition to a peacetime economy. The salaries were predicated on the value of services that each man contributed, measured by his skill and experience and the size of contracts assigned to each. There is no question here of tax evasion, as the court found that petitioner's board of directors did not at any time consider the possibility of distribution of dividends under the guise of salaries. The salaries were determined at the beginning of each year, and the decision as to the declaration of dividends was not made until the end of the year. Dividends were declared by the taxpayer on its common stock in each year from 1936 to 1949, inclusive, with the exception of the years 1941 and 1945.

The Commissioner determined that the salaries paid by petitioner from 1942 through 1945 were excessive, and disallowed the deduction for contributions to the pension trust fund. Before the Tax Court, in order to show the reasonableness of the compensation, the taxpayer introduced in evidence 53 exhibits and the testimony of 13 witnesses. It sought to establish, for the taxable years, the extent and scope of the activities of its seven executive officers, the scarcity of capable construction executives, general economic conditions affecting salaries, salaries paid by it and comparable enterprises in previous years, comparison between salaries and business done, and the absence of any motive for tax evasion. The Commissioner offered no rebuttal evidence. The Tax Court found that the compensation paid in 1942 and 1943 was reasonable and deductible; but it affirmed the Commissioner's determination of what constituted reasonable compensation for 1944 and 1945.

In finding that the salaries for the latter two years were excessive, the court stressed the fact that the taxpayer's gross receipts from completed contracts and total operating profits decreased substantially during those years, compared with previous years. It found that petitioner had failed satisfactorily to discharge its burden of introducing evidence to overcome the prima facie correctness of the Commissioner's determination. As a result of the decrease in profits, the court concluded that the value of their services also decreased during the two years, because of the absence of evidence showing that they had performed other services in lieu thereof, which entitled them to receive compensation equal to that earned in 1943.

Although the dollar volume of contracts actually awarded to petitioner during 1944 and 1945 was considerably less than in the two preceding years, which was generally attributed to reduction in the federal construction program for 1943, the evidence does not show that the activities of the executives were reduced to an extent justifying the salary reductions called for by the Commissioner. In 1944 and 1945, petitioner prepared and submitted bids on 261 and 301 contracts, respectively, as compared to 71 and 98 submitted in the two previous years. The contracts that it was awarded in 1944 and 1945 numbered 78 and 56, respectively, whereas it performed only 23 and 35 in the two earlier years. It is of no consequence here that the contracts for the 1942-43 construction were for large individual projects, providing greater profits for the company, rather than smaller and more isolated jobs. The company's earned surplus in each of the years 1944 and 1945 was twice as much as it was in 1942, the surplus for 1944 exceeding that of the preceding year.

Facing an expected general decline in business after the government's withdrawal from the construction scene, the petitioner's directors elected, against these odds, to expand its operations. In 1944, it sent some of its construction experts (including two of its executives) to Houston, Texas, to establish a branch office. Among other things, this expansion into new territory necessitated the development by the New Orleans office of a complete new bookkeeping and accounting system for the Houston office, and the establishment of a connection between the two offices in other respects. During this period, the executives were required to make numerous trips to and from Houston for conferences. This venture into another state to compete with established firms apparently proved to be a success, the Houston office having realized a gross profit of $25,650 in 1944, and over two-hundred thousand dollars in 1945.

Three witnesses familiar with the construction field, one of whom was a past president of the Associated General Contractors of America, were of the opinion that the salaries were reasonable; it was the opinion of one of the witnesses that the salaries in some instances were relatively lower than those customarily paid to such executives. In 1949 two of pet...