Skarda v. Commissioner , 27 T.C. 137 ( 1956 )

Langdon L. Skarda, et al., ¹ Petitioners, v. Commissioner of Internal Revenue, Respondent

Skarda v. Commissioner

Docket Nos. 54407, 54408, 54409, 54410, 54411, 54412, 54413, 54414

United States Tax Court

27 T.C. 137; 1956 U.S. Tax Ct. LEXIS 46;

October 31, 1956, Filed

---

Decisions will be entered for the respondent.

The petitioners began publishing a daily newspaper in 1949 and took certain steps to incorporate it. In 1949 and 1950, they advanced a total of $ 84,300 to the newspaper to keep it in business. As a result of losses incurred thereby, the petitioners claimed business bad debt deductions in 1949 and 1950 under section 23 (k) (1), 1939 Code, and in the alternative they claimed deductions under sections 23 (a) (1) (A), 23 (e) (1), or 23 (e) (2).

Held, a valid corporation, recognizable as a separate taxable entity, was created by the petitioners in 1949; held, further, a debtor-creditor relationship was established between the petitioners and the corporation by virtue of loans made by the petitioners to the corporation; held, further, petitioners are not entitled to business bad debt deductions under section 23 (k) (1) in connection with the advances because the losses resulting from the worthlessness of the debts were not incurred in, or proximately related to, any trade or business of the petitioners.

Wentworth T. Durant, Esq., and Lynell G. Skarda, Esq., for the petitioners.

John P. Higgins, Esq., for the respondent.

Mulroney, Judge.

---

MULRONEY

The respondent has determined deficiencies in income tax and additions as follows:

				Additions to tax
Year	Docket	Petitioner	Deficiency
	No.			Sec.	Sec.
				294(d)(2)	294(d)(1)(A)
1949	54407	Langdon L. Skarda	$ 617.96
1950	54407	Langdon L. Skarda	1,742.78	$ 141.11	$ 141.11
1949	54408	Carolyn A. Skarda	501.80
1950	54408	Carolyn A. Skarda	1,826.06	153.31	153.31
1949	54409	Lynell G. Skarda and
		Kathryn B. Skarda	1,862.22
1950	54410	Lynell G. Skarda	1,950.70
1950	54411	Kathryn B. Skarda	1,885.18
1949	54412	Cash T. Skarda and
		Annabel S. Skarda	1,652.80
1950	54413	Cash T. Skarda	1,812.22
1950	54414	Annabel S. Skarda	1,812.22

The cases were consolidated for trial and opinion.

Langdon L. Skarda, Lynell G. Skarda, and Cash T. Skarda, hereinafter sometimes referred to as the petitioners, comprised, from 1942 through the tax years involved, the total membership of a partnership trading and doing business as "Skarda Bros." The questions presented herein are in respect to losses sustained, or reported to have been sustained, in 1949 and 1950 by Skarda Bros., hereinafter sometimes referred to as the partnership, in the publishing of the Clovis Chronicle, a newspaper which will sometimes be referred to as the Chronicle. Two other minor adjustments determined by the respondent relating to understated gross receipts of the partnership in 1949 and failure of Langdon L. Skarda and Carolyn A. Skarda to file estimated tax returns for 1950 have not been contested by the petitioners.

The issue for our decision is whether the losses sustained by the petitioners in 1949 and 1950 are deductible in full as business expense or losses under the provisions of either section 23 (a) (1) (A), ²(e) (1), or (e) (2), or were partially deductible as business bad debts under section 23 (k) (1), Internal Revenue Code, as alternatively contended by the petitioners, or as nonbusiness bad debts under section 23 (k) (4), as determined by the respondent.

FINDINGS OF FACT.

Petitioners Langdon L. Skarda and Carolyn A. Skarda were married residents of Clovis, New Mexico, in 1949 and 1950. They filed separate income tax returns on the community property basis in 1949 and 1950 with the then collector of internal revenue for the district of New Mexico.

Petitioners Lynell G. Skarda and Kathryn B. Skarda were married residents of Clovis, New Mexico, in 1949 and 1950. They filed a joint income tax return for 1949 and separate income tax returns for 1950 on the community property basis with the then collector of internal revenue for the district of New Mexico.

Petitioners Cash T. Skarda and Annabel S. Skarda were married residents of Clovis, New Mexico, in 1949 and 1950. They filed a joint income tax return in 1949 and separate income tax returns for 1950 on the community property basis with the then collector of internal revenue for the district of New Mexico.

Langdon L. Skarda, Lynell G. Skarda, and Cash T. Skarda formed a partnership in 1942 known as Skarda Bros. for the original purpose of operating farming interests in the area surrounding Clovis, New Mexico. Until about 1946, the partnership was exclusively in the farming business. Langdon L. Skarda, a nonpracticing, licensed attorney, was placed in charge of the partnership farm interests. Lynell G. Skarda, in addition to his partnership interests, was in the active practice of law in Clovis, New Mexico, having been admitted to the bar in 1941. Cash T. Skarda, who was also a nonpracticing, licensed attorney, was cashier in the Citizens Bank of Clovis, of which the brothers' father was president.

Beginning in 1946, the partnership began to expand its operations, investing in the cattle business, and to a much lesser degree, the real estate business. Their cattle business consisted of the partnership acquiring and putting up large sums of money with which an experienced cattle buyer, selected by them, purchased cattle for pasturing and sale. The cattle buyer performed all of the work and "know-how" of the operation -- buying, fattening, and selling. Sometimes the partnership furnished pasture and feed but the management of the venture was in the hands of the buyer. After fattening and selling the cattle, all expenses of the operation were paid and the profits split between the partnership and the buyer. This division of profits was usually on a 50-50 basis but sometimes it was on a 75-25 basis, depending on the circumstances. If a single operation was of substantial size, the partnership opened a special account at the Citizens Bank of Clovis in the name of one party who had authority to write checks for the operation. From 1946 through the tax years involved, there were eight cattle operations with various buyers involved whereby the partnership invested $ 443,041. Their real estate business consisted of a single purchase of pasture land for $ 15,000.

In 1948, as a consequence of long dissatisfaction with the local newspaper, the petitioners decided to look into the possibility of starting an opposition newspaper in the town of Clovis. In December 1948, after discussing the proposition among themselves, Langdon L. Skarda and Lynell G. Skarda, representing the partnership, went to Denver, Colorado, and Cheyenne, Wyoming, where a printing press and allied equipment were located and purchased from E. A. Heinsohn Printing Machinery and Supplies, hereinafter referred to as Heinsohn. On December 11, 1948, the brothers drew a check in the amount of $ 15,000 on their partnership account in partial payment for the equipment. On the same date a regular conditional sales contract, with an installment promissory note for $ 23,426.32, was entered into between Heinsohn and the partnership. A simultaneous supplemental agreement was also entered into whereby it was agreed that the conditional sales contract would not be recorded so long as payments were made by the purchaser when due.

On December 12, 1948, Lynell G. Skarda, representing the partnership, entered into contracts with King Features Syndicate whereby the yet to be born newspaper would be furnished with news services, comic strips, a syndicated column, and allied services. Some of the contracts were signed by Lynell G. Skarda, and others were signed "Chronicle Publishing Co." by Lynell G. Skarda. Pursuant to and in consideration of the services acquired by these contracts, a check was drawn in payment therefor on the partnership account in the amount of $ 537.40. From December 11, 1948, until January 8, 1949, when a separate account was set up, many checks totaling $ 16,604.91 were drawn on the partnership account for expenditures in getting the Chronicle started.

On December 14, 1948, articles of incorporation were filed with the State Corporation Commission of New Mexico for the organization of the Chronicle Publishing Company, sometimes referred to as the company. A certificate of comparison was executed on December 24, 1948. A certificate of incorporation for the company was duly issued to the petitioners by the State Corporation Commission on December 22, 1948. All articles and certificates were duly filed with the county clerk's office of Curry County, Clovis, New Mexico. All filing fees were paid by the petitioners. Notice of incorporation was duly published and proof of publication was filed with the State Corporation Commission on January 7, 1949.

The articles of incorporation for the company designated Lynell G. Skarda statutory agent upon whom service of process could be made. The articles also named Langdon L. Skarda, Lynell G. Skarda, and Cash T. Skarda as incorporators, having subscribed to 4 shares of stock each, and as having the authority to act as directors of the company for the first 3 months after filing the certificate of incorporation. The articles further provided that "[the] private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever."

Subsequent to the filing of the articles of incorporation, there were no meetings of stockholders, no bylaws were adopted, no officers were elected, no minute books were kept, no corporate stock was issued, and no property was formally transferred to the company by the partnership.

On January 9, 1949, a checking account in the name of the Chronicle Publishing Co. was opened at the Citizens Bank of Clovis and Lynell G. Skarda was authorized to draw checks on the account. Complete books of account were set up for the company including a capital account. A credit to the capital account of $ 25,104.91 was entered on January 15, 1949. On the books of the company, this item was described thus: "1949. Item 1, January 15. Capital stock (Equipment purchased, Skarda Brothers, and cash advanced), credit $ 25,104.91." This amount included $ 8,500 cash advanced by the partnership to the capital account of the company, and $ 16,604.91 expended by the partnership, before the company account was set up, for equipment, supplies, and personal expenses in getting the Chronicle started.

The Chronicle commenced publication on March 20, 1949, and from the beginning it was operated under the corporate name assigned to it by the articles of incorporation. The Chronicle lost money from the outset and between February 10, 1949, and December 5, 1949, 11 checks totaling $ 68,000 were drawn on the partnership account to the account of the company, and between January 19, 1950, and October 13, 1950, 6 checks totaling $ 16,300 were similarly drawn in favor of the company account. All of these checks bore the notation "Loan." Each check was endorsed for the company by either "Lynell G. Skarda, President" or "Cash T. Skarda, Treasurer." On the same date that each check was drawn, a nonsecured promissory note in the same amount of the check was issued payable to "Skarda Bros.," showing the following maker:

Chronicle Publishing Co., a corporation

BY: [signed] Lynell G. Skarda

President

ATTEST: [signed] Cash T. Skarda

Secretary

Five days after commencing publication, March 25, 1949, the conditional sales contract, note, and related agreement between Heinsohn and the partnership were canceled. On the same date a new conditional sales contract, note, and supplemental agreement were entered into between Heinsohn, as seller, and the company, as buyer. The company thereby assumed all liability formerly owed by the partnership in relation to equipment and supplies previously acquired from Heinsohn and the company became the purchaser of the equipment and supplies. The new contract was sealed with the corporate seal of the company and was signed by Lynell G. Skarda as president and Cash T. Skarda as secretary.

On May 4, 1949, the State Corporation Commission of New Mexico notified the company that the right to do business in New Mexico was forfeited for failure to file a required annual report for 1949. Subsequent to this notice, the report was filed as required.

In October 1949, to retain second-class mail privileges, a statement of ownership was published in the Chronicle in which it was stated that the three Skarda brothers were sole stockholders in the "Chronicle Publishing Co., a corporation." The company secured an employer's identification number; filed quarterly returns of income tax withheld; and filed employer's tax returns as a corporation in 1949. A final employer's quarterly Federal tax return was filed as by a corporation in 1950. In 1949 and 1950 the Chronicle was operated in the name of the company, ordering supplies, receiving normal short-term commercial credit, and paying bills by drawing on its corporate bank account.

From the inception of the newspaper business by the partnership, it was understood that Lynell G. Skarda was to be in full charge. He worked from 10 to 11 hours per day trying to get the business on its feet financially. He acted as publisher or general manager, he kept books, made the payrolls, wrote the checks, solicited advertising, wrote all editorials, and set the policies for the Chronicle. All checks for the complete operation, about 3,000 in number, were drawn on the Chronicle Publishing Co. account. The newspaper was a losing proposition from the beginning to the end, when it ceased publication February 1, 1950. Efforts were made to sell the newspaper in November and December 1949 for $ 50,000, but the petitioners were unsuccessful.

After suspension of publication, the assets of the company were disposed of. Complete disposal of the assets was not completed until January 1951 when the printing press, the last principal item of equipment, was sold.

In the partnership return of income filed by Skarda Bros. for 1949, the partners claimed a loss of $ 31,000 from bad debts owed by the Chronicle Publishing Company. For 1950, they made a similar claim of a loss in the amount of $ 39,530.71. They arrived at the losses claimed in 1949 by subtracting the estimated value of the plant from the debts which the company owed Heinsohn and the partnership. The losses in 1950 were arrived at by totaling the advances made to the company by the partnership which were not charged off in 1949 and adding that figure to the amount lost and estimated to be lost on the disposition of the plant and materials.

The respondent determined that the bad debt deductions claimed by the petitioners in advancing money to the company were not allowable because the debts were nonbusiness in nature; that they were not entirely worthless at the end of 1949 or 1950, and that no partial charge-off could be allowed.

The respondent determined that the amount of $ 196.62 should be added to partnership income as unreported receipts in the year 1949. The petitioners allege error in this determination but presented no evidence in regard thereto.

Langdon L. Skarda and Carolyn A. Skarda filed no declaration of estimated tax for 1950, and filed their 1950 income tax returns on March 15, 1951. The respondent determined that additions to the tax for failure to file estimates and for substantial underestimation of estimated tax should apply upon the 1950 returns. The petitioners allege error but presented no evidence in regard thereto.

The Clovis Chronicle was published in 1949 and 1950 by the Chronicle Publishing Company as a separate entity.

The Chronicle Publishing Company did not publish the newspaper as an agent of the partnership.

The loans to the company by the partnership were nonbusiness in nature; therefore the petitioners are not entitled to partial bad debt deductions in 1949 or 1950.

The gross receipts of the partnership were understated in the amount of $ 196.62 for the year 1949.

Additions to the tax for failure to file declaration of estimated tax and for substantial underestimate of tax for 1950 were properly determined against Langdon L. Skarda and Carolyn A. Skarda.

OPINION.

Lynell G. Skarda, the only witness at the trial, testified that he and his two brothers were licensed attorneys living in Clovis, New Mexico. He was actively engaged in the practice of law but his brothers were engaged in other businesses. In 1942, the three Skarda brothers, in addition to their regular businesses, formed a partnership to operate farming interests. The partnership invested heavily in cattle from 1946 through the tax years involved. In 1949, they decided to start, and did start, a newspaper in Clovis, New Mexico. They immediately took steps to incorporate the business. The newspaper was a losing proposition from start to finish and the petitioners advanced, in addition to capital of $ 25,104.91, the sum of $ 84,300 to keep the company going. In 1949 and 1950, the petitioners claimed business bad debt deductions for losses sustained from advancements they made to the newspaper.

The petitioners contend in the alternative that these losses were deductible as business expenses under section 23 (a) (1) (A), business losses under section 23 (e) (1) and (e) (2), or business bad debts under section 23 (k) (1). ³ The respondent, on the other hand, contends that the losses were nonbusiness bad debts within the meaning of section 23 (k) (4), and that such debts, being only partially worthless in 1949 or 1950, are not deductible under section 23 (k) (4)⁴ in those years.

The petitioners make alternative arguments that (1) the Chronicle Publishing Co. never came into existence as a corporation, therefore all of the expenses or losses were their own; (2) if it did come into existence, it should be disregarded as a sham with the same results as above; (3) if not so regarded, the corporation should be found to have been an agent of the partnership with the same results as above; and (4) finally, if found to be a valid corporation which published the Chronicle for itself, then the bad debts resulting from the money loaned to the company should be considered business bad debts, thereby allowing partial bad debt deductions for 1949 and 1950. We feel that the petitioners have failed to carry their burden of proving error in the determinations of the Commissioner.

Our first concern is with the legal creation of the company as a corporation. In December 1948, articles of incorporation were filed with the proper authorities in New Mexico. Certificates of comparison and incorporation were subsequently issued in common form for the company. These were properly filed in Curry County, where the company was located, and the petitioners paid the filing fees as required. Notice of incorporation was duly published by the petitioners in a county newspaper. The articles of incorporation named the three Skarda brothers as incorporators, subscribing to 4 shares of stock each, and as having authority to act as directors for the first 3 months of incorporation.

The petitioners held the company out to the public as a corporation. A sworn statement of ownership was published in the Chronicle by the petitioners, declaring that the newspaper was owned by the company and that the three Skarda brothers were sole stockholders in the "Chronicle Publishing Co., a corporation." The company secured an employer's identification number; filed quarterly returns of income tax withheld; and filed employer's tax returns -- all as a corporation.

The petitioners contend that the corporation never came into existence since they failed to hold stockholders' meetings, adopt bylaws, elect officers, keep minute books, and issue stock. At this point it might be well to quote from chapter 54, section 211, New Mexico Statutes, Annotated (1941) as follows:

Upon making the certificate of incorporation and causing the same to be filed, and a certified copy thereof recorded as aforesaid, and paying the filing fees therefor, the persons so associating, * * * shall from the time of such filing * * * be and constitute a body corporate, by the name set forth in said certificate, * * *

Under this statute it is obvious that the corporation was in existence to the extent that the State of New Mexico recognized it as a separate jural entity authorized to do business as a body corporate in New Mexico. In other words, the conditions precedent to the creation of a corporate body were complied with by the petitioners. The State of New Mexico, having breathed life into the corporation, and it having complied with the laws of that State giving it the right to transact business under its charter, a separate entity came into being, be it de jure or de facto, which will not be ignored except under unusual circumstances. Fleming G. Railey, 36 B. T. A. 543.

The petitioners argue long and forcefully and cite many cases to the effect that a corporate body which does no business is but an empty shell which may be ignored as unreal and a sham, contending that the company was such a corporation, if a corporation at all. While generally a corporation must be regarded as a separate taxable entity, Burnet v. Commonwealth Imp. Co., 287 U.S. 415">287 U.S. 415, we recognize that there are exceptional circumstances whereby the corporate entity may be disregarded as unreal or a sham. Moline Properties, Inc. v. Commissioner, 319 U.S. 436">319 U.S. 436.

Whether or not a corporation should be disregarded as unreal or a sham seems to rest upon whether or not its creation was followed by business activity. In analyzing the three leading decisions of the Supreme Court on this issue, Burnet v. Commonwealth Imp. Co., supra;Higgins v. Smith, 308 U.S. 473">308 U.S. 473; and Moline Properties, Inc. v. Commissioner, supra, the court, in National Investors Corporation v. Hoey, 144 F. 2d 466, stated:

to be a separate jural person for purposes of taxation, a corporation must engage in some industrial, commercial, or other activity besides avoiding taxation: in other words, * * * the term "corporation" will be interpreted to mean a corporation which does some "business" in the ordinary meaning; * * *

We believe that the formation of the Chronicle Publishing Co. was followed by business activity in the ordinary meaning.

This business activity began with the publishing of a newspaper which it published under its corporate name from March 20, 1949, to February 1, 1950. All business of the Chronicle was transacted under the corporate name. A checking account in the name of the Chronicle Publishing Co. was maintained, from which approximately 3,000 checks were drawn by the company president or secretary in payment for company services and supplies. The petitioners had an accountant set up a complete set of books for the company. These books contained a credit of $ 25,104.91 to the "Capital stock" account, representing money actually spent for equipment and supplies for the company, or cash deposited to the account of the company. The petitioners, in effect, transferred to the company the newspaper press and other equipment previously purchased by them. This was done when their personal conditional sales contract and note were caused to be canceled, and new ones, executed by the company, substituted therefor. The company thereby assumed all liability for the equipment under a contract and note signed and sealed by Lynell G. Skarda, president, and attested to by Charles T. Skarda as secretary of the Chronicle Publishing Co. Day-to-day supplies were delivered to the company in its name, billings were made in the company name, and a company check was drawn in payment therefor. In other words, in the vernacular of the business world, the company was extended short-term commercial credit. The company borrowed money from Skarda Bros. and executed notes therefor. We note here that as late as October 13, 1950, when the last loan was made, the petitioners were very careful in obtaining properly executed notes from the company for each loan. We believe that all of this evidence indicates that more than "some business" was carried on by the company.

The petitioners cite and rely heavily on Paymer v. Commissioner, 150 F.2d 334">150 F. 2d 334, affirming in part and reversing in part a Memorandum Opinion of this Court. In that case there were two corporations created by the taxpayers to hold title to real estate. One of the corporations, Westrich, was found by the court, in reversing the Tax Court, to be "a passive dummy which did nothing but take and hold the title to the real estate * * *." This corporation was characterized as a sham. The other corporation, Raymep, was identical in nature to Westrich with one distinguishing exception. This was that Raymep had obtained a loan and to secure it had assigned to the lender its rights as lessor in two leases to property to which it held title. This distinguishing feature was sufficient for the court to sustain the Tax Court's decision and determine it to be a taxable entity. The court said of Raymep:

We think that Raymep was active enough to justify holding that it did engage in business in 1938. The absence of books, records and offices and the failure to hold corporate meetings are not decisive on that question. Though Raymep was organized solely to deter creditors of one of the partners, it apparently was impossible or impracticable to use it solely for that purpose when it became necessary or desirable to secure the above mentioned loan * * *

Certainly there was more business activity transacted by the company here than by Raymep. We therefore hold that the Chronicle Publishing Co. was engaged in sufficient business in 1949 and 1950 to classify it a separate entity.

Petitioners next contend that if the company had a corporate existence in the beginning, its charter and the right to do business in New Mexico were forfeited and corporate existence ended on May 4, 1949, for failure of the corporation to make a required report to the New Mexico Corporation Commission. To this proposition we are unable to agree. Chapter 54, section 236, New Mexico Statutes, Annotated (1941), concerning corporations which have forfeited their charter and right to do business under this chapter for failure to make the report, provides:

Any corporation in this class may be fully revived by the resumption of active business and the filing of the annual report contemplated by the provisions of this section.

Lynell G. Skarda testified that subsequent to the forfeiture on May 4, 1949, the required report was duly filed. We think this indicated that the petitioners wanted to do everything necessary to maintain the corporate entity. There is nothing in the record to indicate that the business activity of the company was interrupted or changed in the slightest by or after the notice of forfeiture. Whether the company, after the forfeiture of its charter, was a de jure or a de facto corporation, or whether it was merely an association operating in the same form or manner as a corporation, we need not decide. It is sufficient to say that it falls within the classification of entities taxable as corporations under the revenue acts. Calvin Zimmerman, 31 B. T. A. 754.

The petitioners further contend that if we determine that a corporate entity existed in 1949 and 1950, we should also find that it was an agent of the partnership. This agency argument "is basically the same argument of identity in a different form." Moline Properties, Inc., supra. However, we need not go into the merits of the argument since there is no evidence in the record that an agency relationship existed between the partnership and the company. There was no contract of agency, nor the usual incidents of an agency relationship, therefore we hold that the company in publishing the Chronicle was not an agent of the partnership. The petitioners' argument that they should be permitted to deduct as their own all of the expenses in publishing the Chronicle as business expenses under section 23 (a) (1) (A) is now disposed of since the expenses were those of the company, which we have concluded is a separate entity.

The petitioners' last argument is that if we should find that the company was a corporate entity, then we should allow them to claim business loss deductions as provided in section 23 (e) (1) and (e) (2), or business bad debt deductions which they claimed in 1949 and 1950, under section 23 (k) (1). The respondent does not contend that the advancements in excess of $ 25,104.91 were additions to capital, therefore we will consider them to be bona fide loans. The petitioners do not contend that the nonsecured debts became totally worthless in 1949 or 1950, therefore any deductions under section 23 (k) (4) would be prohibited.

Sections 23 (e) and 23 (k) of the Code are mutually exclusive. Charles G. Berwind, 20 T. C. 808. The special provisions as to debts in section 23 (k) indicate that debt losses are not to be regarded as other losses sustained under section 23 (e). Spring City Foundry Co. v. Commissioner, 292 U.S. 182">292 U.S. 182. Here we have an obvious debtor-creditor relationship; therefore the losses which resulted from the relationship can be deducted only under the provisions of section 23 (k). This leaves only the petitioners' argument with respect to section 23 (k) (1) to be determined.

Section 23 (k) (1), as negatively defined by section 23 (k) (4), allows a bad debt, incurred in a trade or business, to be deducted in the full amount of the loss in the year in which it becomes worthless in part or in full. In other words, the petitioners must prove that the loss resulting from the worthlessness of the debts was proximately related to a trade or business of their own at the time the debts became worthless. We do not think that they have proved this.

Generally speaking, a bad debt resulting from a loan to a corporation by its stockholders would not be considered a business bad debt because the loss therefrom would not be proximately related to a trade or business of the stockholder. A corporation and its stockholders are generally to be treated as separate taxable entities, Burnet v. Clark, 287 U.S. 410">287 U.S. 410. Consequently, the business of the corporation cannot be considered the business of the several stockholders. Dalton v. Bowers, 287 U.S. 404">287 U.S. 404; Estate of William P. Palmer, Jr., 17 T.C. 702">17 T. C. 702; and Jan G. J. Boissevain, 17 T. C. 325. The fact that Lynell G. Skarda devoted most of his time to the business of the corporation does not alter this conclusion. Skarda's activities in managing the business of the corporation for the corporation cannot in the same breath be held to constitute the conduct of a separate business. Jan G. J. Boissevain, supra.

A worthless debt, resulting from a loan by a stockholder to his corporation, may qualify as a business bad debt if the stockholder was in reality engaged in the trade or business of promoting, organizing, managing, financing, and making loans to business enterprises. Henry E. Sage, 15 T. C. 299; Vincent C. Campbell, 11 T. C. 510. In such a case the taxpayer, though a stockholder in the corporation to which he loaned money, is also in the business of being a "promoter" of business enterprises, and the loss resulting from the bad debt would be proximately related to that business. We determined in Charles G. Berwind, supra, that the authority contained in such "promoter" cases as those cited above, "is applicable only to the exceptional situations where the taxpayer's activities in promoting, financing, managing, and making loans to a number of corporations have been regarded as so extensive as to constitute a business separate and distinct from the business carried on by the corporations themselves."

The petitioners do not contend that they were in the business of loaning money to corporations, and even if they had, the evidence does not support such a claim. The petitioners, by inference, do contend that they come within the forenamed "promoter" cases. The record does not support this contention either. This nebulous business requires that substantial time and effort be expended in various enterprises to an extensive degree. The record discloses that the company was the only enterprise in which the petitioners put any time and effort, and was the only enterprise to which the petitioners loaned money. Their real estate "venture" consisted of one purchase of pasture land. As to their cattle ventures, in which the petitioners invested heavily, it was stated by Lynell G. Skarda, "Well, usually the way they [cattle ventures] were carried on was that we would furnish the money and others would do the work." It was not contended that these investments were loans. We do not think that the passive investing in cattle, the purchase of pasture land, and the organizing, managing, and financing and loaning money to one corporation was sufficient to constitute a separate and distinct business within the intendment of the "promoter" line of cases.

After carefully considering all of the evidence, we conclude that the petitioners were not in the separate and distinct business of publishing a newspaper, making loans to corporations, or promoting, organizing, managing, and financing business ventures. We therefore hold that the losses sustained were not proximately related to any business of the petitioners and therefore are not deductible under section 23 (k) (1).

We find that the gross receipts of the partnership, Skarda Bros., were understated in the amount of $ 196.62 for the year 1949.

We find that the additions to the tax for substantial underestimate of estimated tax and for failure to file declaration of estimated tax were properly determined for 1950 against Langdon L. Skarda and Carolyn A. Skarda.

Decisions will be entered for the respondent.

---

Footnotes

• 1. The following proceedings are consolidated herewith: Carolyn A. Skarda, Docket No. 54408; Lynell G. Skarda and Kathryn B. Skarda, Docket No. 54409; Lynell G. Skarda, Docket No. 54410; Kathryn B. Skarda, Docket No. 54411; Cash T. Skarda and Annabel S. Skarda, Docket No. 54412; Cash T. Skarda, Docket No. 54413; and Annabel S. Skarda, Docket No. 54414.↩

• 2. All references to section numbers are hereinafter meant to mean the Internal Revenue Code of 1939, unless otherwise specified.↩

• 3. SEC. 23. DEDUCTIONS FROM GROSS INCOME.

  In computing net income there shall be allowed as deductions:

  (a) Expenses. --

  (1) Trade or business expenses. --

  (A) In General. -- All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * *

  * * * *

  (e) Losses by Individuals. -- In the case of an individual, losses sustained during the taxable year and not compensated for by insurance or otherwise --

  (1) if incurred in trade or business; or

  (2) if incurred in any transaction entered into for profit, though not connected with the trade or business; or

  * * * *

  (k) Bad Debts. --

  (1) General rule. -- Debts which become worthless within the taxable year; or (in the discretion of the Commissioner) a reasonable addition to a reserve for bad debts; and when satisfied that a debt is recoverable only in part, the Commissioner may allow such debt, in an amount not in excess of the part charged off within the taxable year, as a deduction. * * *↩

• 4. (4) Non-business debts. -- In the case of a taxpayer, other than a corporation, if a non-business debt becomes worthless within the taxable year, the loss resulting therefrom shall be considered a loss from the sale or exchange, during the taxable year, of a capital asset held for not more than 6 months. The term "non-business debt" means a debt other than a debt evidenced by a security as defined in paragraph (3) and other than a debt the loss from the worthlessness of which is incurred in the taxpayer's trade or business.↩