(a) IN GENERAL.-There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including

(1) A reasonable allowance for salaries or other compensation for personal services actually rendered;

Section 404, insofar as applicable, provides:

SEC. 404. DEDUCTION FOR CONTRIBUTIONS OF AN EMPLOYER TO AN EMPLOYEES' TRUST OR ANNUITY PLAN AND COMPENSATION UNDER A DEFERRED-PAYMENT PLAN.

(a) GENERAL RULE.-If contributions are paid by an employer to or under a stock bonus, pension, profit-sharing, or annuity plan, or if compensation is paid or accrued on account of any employee under a plan deferring the receipt of such compensation, such contributions or compensation shall not be deductible under section 162 (relating to trade or business expenses) or section 212 (relating to expenses for the production of income); but, if they satisfy the conditions of either of such sections, they shall be deductible under this section, subject however, to the following limitations as to the amounts deductible in any year:

(5) OTHER PLANS.-In the taxable year when paid, if the plan is not one included in paragraph (1), (2), or (3), if the employees' rights to or derived from such employer's contribution or such compensation are nonforfeitable at the time the contribution or compensation is paid.

[Emphasis added.]

Petitioner argues that "Insofar as Section 162 is concerned, the deduction, allowable under Section 404 (a) (5) is subject only to the 'reasonableness' requirements of Section 162," that the continuation of the salary payments to the widow of its deceased president for a period of 6 months is reasonable both in amount and period and, accordingly, such payments are deductible under section 404 (a) (5), and section 1.404 (a)-12 of the regulations.1

Respondent's primary contention is that the payments in question, for various reasons, do not meet the "standards of deductibility under section 162," as required by section 404 (a). He concedes, on brief, that if the payments do meet the standards of deductibility under section 162, they also meet the requirement contained in section 404 (a) that they be paid under a deferred compensation plan and, under section 1.404(a)-12, Income Tax Regs., petitioner would be entitled

1 Sec. 1.404(a)-12, Income Tax Regs. Contributions of an employer under a plan that does not meet the requirements of section 401(a); application of section 404(a)(5). Section 404 (a) (5) covers all cases for which deductions are allowable under section 404 (a) but not allowable under paragraph (1), (2), (3), (4), or (7) of such section. ... If unfunded pensions are paid directly to former employees, their rights to such payments are nonforfeitable, and accordingly, such amounts are deductible under section 404 (a) (5) when paid. Similarly, if amounts are paid as a death benefit to the beneficiaries of an employee (for example, by continuing his salary for a reasonable period), and if such amounts meet the requirements of section 162 or 212, such amounts are deductible under section 404(a)(5) in any case when they are not deductible under the other paragraphs of section 404(a). * * * If an amount is accrued but not paid during the taxable year, no deduction is allowable for such amount for such year. [Emphasis added.]

to a deduction of $2,550 for the year 1954. Respondent argued, at the hearing and on brief, that the payments in question were in reality (1) a gift to the widow by petitioner, or (2) a distribution to her of corporate earnings, neither of which would be deductible under section 162.

It is apparently petitioner's position that the payments to the widow of its deceased president are deductible, as continuation-ofsalary payments for a limited period, under section 404 (a) (5) of the Internal Revenue Code of 1954 and section 1.404 (a)-12, Income Tax Regs., promulgated thereunder. Petitioner argues that the reference which is made to section 162 in section 404 (a) and section 1.404(a)–12 relates only to the "reasonableness" requirement of section 162, and further, that section 404(a)(5) and section 1.404(a)-12 are to be interpreted in the light of the prior regulations, revenue rulings, and court decisions under the 1939 Code. Petitioner cites Rev. Rul. 54– 625, 1954-2 C.B. 85, as modified by Rev. Rul. 55-212, 1955-1 C.B. 299, and I. Putnam, Inc., 15 T.C. 86 (1950), in support of its argument that the payments herein were reasonable, and Fifth Avenue Coach Lines, Inc., 31 T.C. 1080, 1093 (1959), affirmed and reversed on other issues 281 F. 2d 556 (C.A. 2, 1960), certiorari denied 366 U.S. 964, in support of its contention that "to be deductible, the payments need not be in the nature of additional compensation."

Section 39.23 (a)-9 of Regulations 118, promulgated under the 1939 Code, provided, in pertinent part, that—

When the amount of the salary of an officer or employee is paid for a limited period after his death to his widow or heirs, in recognition of the services rendered by the individual, such payments may be deducted.

This provision first appeared in Regulations 45 under the Revenue Act of 1918 and has been continued without change in subsequent regulations under the 1939 Code. Following the adoption of the 1954 Code, however, this provision was omitted from section 1.162 pertaining to business expense.

The question thus framed, so far as we are advised, has not been considered by this or any other court under the provisions of the Internal Revenue Code of 1954, and for reasons which will presently appear, we find it unnecessary to decide it here. The nature of payments made by an employer to the widow of an officer or employee has been considered by this Court in a number of cases under the provisions of the 1939 Code, upon which petitioner partially relies.

It requires no extended citation of authority for the proposition that a dividend is not a deductible expense of a corporate taxpayer. Paramount-Richards Th. v. Commissioner, 153 F. 2d 602 (C.A. 5, 1946), affirming a Memorandum Opinion of this Court; United Mercantile

Agencies, Inc., 23 T.C. 1105, 1112 (1955), remanded on other issues sub nom. Drybrough v. Commissioner, 238 F. 2d 735 (C.A. 6, 1956). See Fifth Avenue Coach Lines, Inc., supra. Whether or not a payment by a corporation to its stockholders is a distribution amounting to a dividend under section 115 (a) is primarily a question of fact. Lengsfield v. Commissioner, 241 F. 2d 508 (C.A. 5, 1957), affirming a Memorandum Opinion of this Court. We find that here there can be no question but that this was a dividend. A distribution of earnings by a corporation to its stockholder need not formally be declared as such, need not be distributed pro rata, and need not be so characterized by the corporation. Kate Hudson, 34 B.T.A. 155 (1936), affd. 99 F. 2d 630 (C.A. 6, 1938), certiorari denied 306 U.S. 644; Lengsfield v. Commissioner, supra. "Courts have frequently, and apparently uniformly, held that where controlling stockholders divert corporate income to themselves, such diverted funds should be treated as constructive dividends." Simon v. Commissioner, 248 F. 2d 869 (C.A. 8, 1957), reversing on other grounds a Memorandum Opinion of this Court.

Here, Avanelle Bacon, in one capacity or another, held all but 12 of the 180 outstanding shares of petitioner. The sole remaining stockholder, her father-in-law, was present at the meeting at which the payment to her was authorized as a "gratuity." In Lincoln Nat. Bank v. Burnet, 63 F. 2d 131, 133 (C.A.D.C. 1933), the Court of Appeals said:

It is true that the directors considered it in part as a gift and not as a dividend, but this is not determinative of the nature of the distribution, nor is the fact that the distribution was to some of the shareholders only and not to others, nor that it was divided among the stockholders in proportions other than their respective holdings of stock in the corporation. The other shareholders have not complained of this inequality, and must therefore in this proceeding be deemed to have ratified the distribution. The character of the distribution as a division of profits was not changed by the manner in which it was accomplished, nor by the personal motives which induced the respective stockholders or directors to approve of such action, for it neveretheless remained in contemplation of law a distribution of dividends. It was made from the earnings or profits of the distributing corporation, and was divided among the stockholders of the distributing company in such proportion as was satisfactory to its directors and stockholders.

The purpose of the payment was stated to be to give Avanelle Bacon "financial security" and to "maintain her standard of living." This made it entirely suitable for her as holder of the shares in her husband's estate and those belonging to their two children to vote to authorize the payment. But it did not prevent it from being a dividend, nondeductible by the corporate petitioner.

The foregoing facts make this situation virtually indistinguishable from that in Lengsfield v. Commissioner, supra at 510, where

the Tax Court * * after a full consideration of the facts, found that, as between the corporation and the recipients, the payments, were distributions of profits taxable to the recipients as dividends."

The Court of Appeals continued (p. 510):

We think the record supports, indeed requires, this conclusion. There were substantial earnings and profits available during the taxable years as a source for making the payments and, when made, they were charged on the corporation's books to the surplus account. The taxpayers were all shareholders of the corporation at the time they received the payments in question. The payments to taxpayers were consented to by all the shareholders *** and no question has ever been raised by any shareholder of the corporation as to the authority of the board to make the payments. Moreover, the taxpayers-recipients were, as the Tax Court found, majority (63 percent) shareholders, most of the others were close relatives ***. We think that, under these circumstances, the payments in question directly respond to the definition of a taxable dividend contained in the Treasury Regulations 111. The fact that the resolutions authorizing the payments characterized them as a "gratuity" for past services is not determinative of the nature of the distribution. Although section 316 of the 1954 Code rather than section 115 of the 1939 Code is applicable here, the relevant language is identical.

The dividend issue was raised expressly by respondent for the first time at the trial by the statement that "the amounts involved in this case are *** a preferential ordinary or liquidating dividend." Petitioner's objection was overruled by the trial judge. This position was clearly correct.

3

In the first place, respondent's determination was in such general terms that the burden of proving error in any respect undoubtedly rested on petitioner. Cf., e.g., Arthur Sorin, 29 T.C. 959 (1958), affirmed per curiam 271 F. 2d 741 (C.A. 2, 1959), with Thomas Wilson, 25 T.C. 1058 (1956), appeal dismissed (C.A. 4, Mar. 1, 1957).

A dividend would as clearly justify the disallowance as a gift. Possibly a plea of surprise, if warranted, and a request for a continuance might have been proper. See Helvering v. Wood, 309 U.S. 344 (1940). But no such action was taken, and it is most unlikely that respondent's position was in fact unknown to petitioner.

Giving petitioner the benefit of all doubts, however, and assuming, contrary to the fact, that respondent's position at the trial was a

The Lengsfield opinion also includes the following (pp. 509-510):

"Pointing, too, to the statutory language, Internal Revenue Code, Sec. 115, 26 U.S.C.A. 115, 'Distributions by corporations':

"The term "dividend" when used in this chapter

means any distribution made

by a corporation to its shareholders, whether in money or in other property, (1) out of its earnings or profits accumulated after Feb. 28, 1913, or (2) out of the earnings or profits of the taxable year

and to the fact that there were earnings and profits available which were consequently the source of distributions, the Tax Court declared, 'We cannot escape the conclusion that by legislative definition they were "dividends".'"

"[T]he amount of $5,100.00 claimed as a deduction for a 'gratuity to Mrs. J. R. Bacon' on Form 1120 for the taxable year ended December 31, 1954, does not constitute an allowable deduction within the purview of Section 162 of the 1954 Internal Revenue Code."

departure from the theory of the deficiency notice, any new matter raised would merely require respondent to sustain the burden of proof. Rule 32, Tax Court Rules of Practice. And it is not accurate, as petitioner seems to infer, that respondent limited his contention to liquidating dividends. This payment need be viewed only as an ordinary dividend, distributed out of either accumulated or current earnings, sec. 316(a), I.R.C. 1954, each of which, as the record affirmatively demonstrates, and as we have found, was more than adequate for the purpose.

Given the undisputed facts, we regard any burden on respondent as having been amply discharged.

The conclusion that the payment in issue was a dividend makes it unnecessary to dispose of other questions raised by the parties. Reviewed by the Court.

Decision will be entered for the respondent.

BRUCE, J., concurring: I agree with the majority that the payment in question is not deductible by petitioner. I am not at all satisfied, however, that the payment in question constituted a dividend and, accordingly, do not wish to be understood as agreeing with the reasons adopted by the majority. I would deny the deduction for the reasons hereinafter discussed.

On its income tax return for the taxable year 1954, petitioner claimed a deduction in the amount of $5,100 for a "gratuity to Mrs. J. R. Bacon."

Respondent disallowed the deduction claimed for the stated reason that "the amount of $5,100.00 claimed as a deduction for a 'gratuity to Mrs. J. R. Bacon' on Form 1120 for the taxable year ended December 31, 1954, does not constitute an allowable deduction within the purview of Section 162 of the 1954 Internal Revenue Code."

In its original petition filed herein, petitioner alleged that the entire $5,100 is deductible under section 162(a). By amended petition, it alleged the $5,100 is an allowable deduction for 1954 under the provisions of section 162 (a) and section 404 of the Internal Revenue Code of 1954. On brief, however, petitioner has apparently abandoned its claim that the entire $5,100 is an allowable deduction for 1954 under section 162(a) and argues only that the $2,550 actually paid to the widow of its deceased president in 1954 is an allowable deduction for the taxable year 1954 under the provisions of section 401(a) (5) and section 1.404 (a)-12, Income Tax Regs.

On brief, petitioner states the "ISSUE TO BE DECIDED" as

Where the petitioner obligated itself to pay to the widow of its deceased President an amount equivalent to the monthly salary of the deceased President