Croker v. Helvering, 6816.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: PER CURIAM
• Citation: Croker v. Helvering, 91 F.2d 299, 67 App.D.C. 226 (D.C. Cir. 1937)
• Decision Date: 03 May 1937
• Docket Number: No. 6816.,6816.
• Parties: CROKER v. HELVERING, Com'r of Internal Revenue.

67 App. DC 226, 91 F.2d 299 (1937)

CROKER v. HELVERING, Com'r of Internal Revenue.

No. 6816.

United States Court of Appeals for the District of Columbia.

Argued April 6, 1937.

Decided May 3, 1937.

Richard J. Mackey, of New York City, and Gregory Hankin, of Washington, D. C., for petitioner.

Robert H. Jackson, Asst. Atty. Gen., and J. Louis Monarch, Sewall Key, Herman Oliphant, John H. Pigg, and E. W. Pavenstedt, all of Washington, D. C., for respondent.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

PER CURIAM.

An income tax appeal involving the years 1924 and 1925. Petitioner is the widow of Richard Croker, who died in 1922. In 1924 and 1925, she resided in Florida where she owned a valuable area of ocean-front land. The appeal concerns deductions claimed and disallowed for

(a) Money paid in 1924-1925 by petitioner as interest on debts;

(b) Money paid as attorneys' fees in connection with the business in which petitioner was engaged;

(c) A loss on account of a bad debt; and

(d) The disallowance of items of personal exemption.

First. The claimed deductions on account of interest were disallowed by the Board, principally on the ground that there was no proper evidence to sustain them. We have carefully examined the record and are of opinion the Board was right except as to a payment of a little more than $3,000 (641 English pounds) to Munster & Leinster Bank of Dublin in the year 1925. We think petitioner was entitled to a deduction on account of this payment. The Board held otherwise, basing its opinion wholly upon the certificate of the Bank admitted as a part of petitioner's evidence. The certificate is as follows:

"I, the undersigned, Manager of the Munster & Leinster Bank, Ltd. Dame St. Dublin, hereby certify that the sum of Pounds 641:16 (say Six hundred and forty one pounds 16/Shg.) has been charged to Mrs. Bula Croker of Glencairn, Sandyford Co. Dublin, during the year ended 31st December 1925 as Interest, exclusive of commission and any other charges.

"This interest has been paid in full, by Mrs. Croker without deduction of Income tax."

The Board held this certificate insufficient on the ground that, while it showed petitioner had been charged with interest during the year 1925 and had paid the interest, the certificate was silent as to the precise date of payment; but in reaching its conclusion the Board ignored or else overlooked the uncontradicted evidence of petitioner herself that she had actually paid the interest to the Munster Bank in 1925. We are of opinion that the certificate of the bank, considered in connection with petitioner's own uncontradicted evidence as to payment in 1925, made out a case entitling her to this allowance.

Second. Petitioner claims allowance of $23,250 attorneys' fees paid in 1924, and of $7,500 in 1925, and of $350 advertising expenses in 1925. She claims that these expenditures were ordinary and necessary expenses in the conduct of her business as a real estate dealer. The Board denied all on several grounds, one of which is enough, viz.: that petitioner failed to show that she was engaged in the real estate business. Her testimony is that: "During the year 1925 my business consisted of selling real estate — selling my land. The land was Ocean frontage located at Palm Beach, Florida." We are of opinion that petitioner's efforts to sell her own property, in this case a strip of two miles of ocean front at Palm Beach, is not a trade or business within the intendment of the tax statute. See Phipps v. Commissioner (C.C.A.) 54 F.(2d) 469, and Pope v. Commissioner (C.C.A.) 77 F. (2d) 599. We, therefore, approve the...