
    Pacific Flush Tank Co., Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 28415.
    Promulgated October 14, 1929.
    
      T. M. Mather, Esq., for the respondent.
   OPINION.

Van Fossan:

Petitioner contends that the payments to Ida K. Miller under the terms of the above contract were either an ordinary and necessary expense or a loss. We find ourselves unable to catalog the item in either category.

The payments to the widow were provided for in the contract made by the husband and the principles underlying payment to both are inextricably interwoven. As to the husband, the payment of 20 per cent of net earnings was either primarily in the nature of payment for capital assets (patents and improvements usable in petitioner’s business) and so not allowable as expense (John C. Moore Corporation, 3 B. T. A. 430) or a distribution of profits, equally unallowable (Pompeian Mfg Co., 1 B. T. A. 825). The designation of the widow as the recipient of part of the payments to be made did not alter the character of the payments. Such payments would be, nevertheless, in consideration of the services and contributions of the husband. Nor is the difficulty removed by denominating the payments as annuities.

In the alternative, petitioner contends that the payments to the widow were a loss. Before this conclusion could be reached, however, it would be necessary for petitioner to establish the value of the patents acquired, their respective terms, and the proportionate part of the payments heretofore made properly to be allocated thereto, none of which facts are before us.

Decision will be entered for the respondent.  