Opinion
No. F-285.
January 13, 1930.
Suit by the Potts-Turnbull Advertising Company against the United States. Judgment for plaintiff.
The plaintiff in this tax case sues to recover $7,718.63, a claimed overpayment of income tax, due to the refusal of the commissioner to classify plaintiff as a personal-service corporation under section 900(g) of the Revenue Act of 1924, 43 Stat. 337 (26 USCA § 1218 note).
This case having been heard by the Court of Claims, the court upon the evidence makes the following special findings of fact:
1. The taxpayer is a Missouri corporation with its principal offices at 300 Gates Building, Kansas City, Mo. The company was incorporated, at the instance of Henry K. Turnbull, as "The Turnbull Business Development Company" under a certificate of incorporation dated July 19, 1910, with an authorized capital of $5,000, divided into 500 shares of stock of a par value of $10 each, 250 shares being preferred stock and 250 common stock. The stock was subscribed for as follows:
Preferred Common
Henry K. Turnbull .... 205 shares 249 shares David M. Proctor ..... 1 " Fred Wolferman ....... 10 " P.S. Harris .......... 10 " W.E. Rogers .......... 10 "
The articles of incorporation recite that at least one-half of the capital stock was actually paid up in lawful money of the United States. The purposes for which the corporation was organized are set forth in its articles of incorporation, as follows:
"To transact the business of advertising, promoting, and developing the business of other corporations, partnerships, or individuals for hire, or upon commission, or otherwise, by and through the means of preparing advertising for other corporations, partnerships, or individuals, and of advertising the business, commodities, or other property, real, personal or mixed, of other corporations, partnerships, or individuals in newspapers, books, booklets, prospectuses, magazines, circulars, pamphlets, or other similar literature and advertising medium. * * *"
2. On July 21, 1913, under authority of the secretary of state of the State of Missouri, the name of the company was changed to "Potts-Turnbull Advertising Company." The capital stock of the corporation was in no way changed, until December 31, 1919, when the secretary of state issued a certificate authorizing the increase of the capital stock of the corporation from $5,000 to $100,000. This change was subsequent to the taxable year under consideration. In the increase under this authority, the par value of the shares was increased from $10 to $100 each and the preferred stock was canceled and exchanged for common stock.
The articles of incorporation do not disclose any preferences given to preferred stock and the stockholders or directors have never, by by-laws or otherwise, made any distinction between the preferred and the common stock except as to name, and no preferences have ever been given to the preferred stock by any legal action of record taken by the stockholders or directors of the company.
3. The capital stock of the corporation was held by the persons and in the amounts shown below as of the beginning and end of the year 1918.
=================================================================================================== | Number of shares held Stockholders |------------------------------------------------------------ | January to | July to November, | December, | June, incl., 1918 | incl., 1918 | 1918 --------------------------------------|--------------------|--------------------|------------------ H.K. Turnbull, president, treasurer, | | | and general manager ............... | 55 com. | | 75 com. | | 75 com. | H.K. Turnbull, president, treasurer, | 59% | 63% | 63% and general manager ............... | 239 pref. | | 239 pref. | | 239 pref. | F.S. Turnbull (wife of H.K. | | | Turnbull) ......................... | 80 com. 16% | 80 com. 16% | 100 com. 20% Otto Barth .......................... | 50 com. 10% | 50 com. 10% | 50 com. 10% B.F. McGuirl, vice president ....... | 25 com. 5% | 25 com. 5% | 25 com. 5% H.E. Stewart ....................... | 20 com. 4% | 20 com. 4% | ............ F.E. Whalen, secretary ............. | 20 com. 4% | ........... | ............ P.S. Harris ........................ | 10 pref. 2% | 10 pref. 2% | 10 pref. 2% S.T. Balcom (sister of H.K. | | | Turnbull) ......................... | 1 pref. | 1 pref. | 1 pref. |--------------------|--------------------|------------------ | 500 shs. 100% | 500 shs. 100% | 500 shs. 100% --------------------------------------------------------------------------------------------------- F.S. Turnbull, who was the wife of H.K. Turnbull; S.T. Balcom, who was a sister of H.K. Turnbull; and P.S. Harris were the only stockholders who were not regularly engaged in the business affairs of the taxpayer in the year 1918. The others were regularly and actively engaged in the affairs of the taxpayer without outside interests, and gave their time and efforts exclusively to the business of the taxpayer. The shares of stock standing in the name of F.S. Turnbull were gifts from her husband, H.K. Turnbull. Her stock certificates were never delivered to her, but were held in the possession of Turnbull at all times. The one share standing in the name of S.T. Balcom was given to her by her brother, Turnbull, to qualify her for a directorship, and the 10 shares owned by P.S. Harris were subscribed for by him at the time the corporation was organized.4. The gross business of the taxpayer, excluding fees for preparation of advertising, for the year 1918 was $507,949.51, and a detailed analysis discloses that the business was produced and handled by the several persons listed below:
W.J. Krebs, H.K. Turnbull, F.E. Whalen, Otto Barth, H.E. Stewart, B.F. McGuirl.
The company paid publishers for advertising placed in publications the sum of $432,132.85. All of these persons served in the capacity known in the taxpayer's business as "account executives" and, with the exception of Krebs, were all stockholders in the corporation. Krebs was employed on a commission basis. In the business conducted by the taxpayer an "account executive" is a person who handles the account of an advertiser that is, he develops the advertising business of the advertiser with the taxpayer through solicitation, outlines the advertiser's program, determines the publications or advertising medium which should be used by the advertiser, supervises the writing of copy and the insertion of the advertising in the advertising medium.
Krebs was employed by the taxpayer in 1917 or early in 1918, with a view to obtaining a certain account which it was thought he could influence. This account was secured and has been held by the company. In securing this particular account, which was that of a firm by whom Krebs had been employed, Krebs was used merely as a means of contact; the details and technicalities incident to obtaining the account being handled by Turnbull. Krebs had had experience in the advertising department of a manufacturing concern and in selling advertising novelties for another firm, but he had not had experience in an advertising business such as was conducted by the taxpayer. During 1918 the company paid commissions to Krebs, as salary, in the sum of $3,434.18, he being the only employee other than a stockholder to whom a salary in excess of $2,000 was paid. He became a stockholder in 1919.
Turnbull, who owned 239 shares of preferred stock throughout the year, and 55 shares of common stock at the beginning and 75 shares of common at the end of the year, is shown to have produced and handled business to the amount of $266,181.88 of the total of $507,949.51. He was consulted and acted as adviser on all matters appertaining to obtaining new clients, planning advertising campaigns for advertisers, and originating new ideas for advertisements. He was president, treasurer, and general manager of the taxpayer; initiated the work for himself, the other stockholders, and the employees, and was constantly consulted as to the details of the business. Prior to organizing "The Turnbull Business Development Company" he had been for five years in the advertising department of the Kansas City Journal, and previous to that he had been advertising manager of a dry-goods company.
Barth had formerly been advertising manager for a publication known as the Kansas Farmer and was well versed in farming conditions.
Whalen was experienced in the mail-order selling business.
5. The business of the taxpayer originated from contact between the account executive, or an officer of the corporation, and a representative of the concern from which it was desired to obtain business. Securing an account usually involved a detailed study and analysis by the taxpayer's representative of the advertiser's business, problems of distribution, sales policies, and the selection of the proper advertising mediums in order to present the product of the advertiser in a territory where results could be obtained.
The methods used may be summarized in the following examples: Preceding the acquisition of one of the taxpayer's major accounts and as a result of conferences with the advertiser, Turnbull made a trip to New York and obtained a number of sketches to show his ideas for a change of methods in advertising the product manufactured by the advertiser whose account it was desired to acquire. The advertiser was a manufacturer of soap, who made a laundry soap and a toilet soap. This advertising had not been productive of the best results. Turnbull, through his experience and imagination, devised a series of illustrations which detracted from the labor of using laundry soap and centered attention on the attractive results of cleanliness. These ideas were visualized by a commercial artist and not only brought the advertising account to the taxpayer but increased sales for the advertiser. In another of the major accounts, which was that of a fur buyer, Turnbull, after a conference with the advertiser, selected illustrations of various fur-bearing animals and constructed an illustrated narrative showing methods of hunting and trapping and the profits that might be made therefrom. These were suggested as a means of more appealing publicity for the advertiser. This account was secured, and the first insertion of an advertisement in a weekly paper through the taxpayer company resulted in about 6,000 inquiries regarding the advertiser's product at a cost of approximately 11 cents each, whereas by the method formerly used by the advertiser the inquiries received had cost from 50 to 60 cents each. In securing the account of a manufacturer of lamps which resulted in one of the taxpayer's larger accounts, the stockholder representative of the taxpayer designed a new and more attractive style of lamp shade for the advertiser and recommended a different sales plan, which resulted in an increase of annual sales from a few hundred thousand dollars to over four million dollars in 1924.
6. The representatives of the taxpayer corporation handling the account of the advertiser made for his own purpose a memorandum of the advertising to be placed over a particular period by the advertiser. No signed orders from the advertiser were taken by the taxpayer, with the possible exception of instructions contained in letters from advertisers. After securing the account of an advertiser the account executive or officer handling the account made out an "order memo." which was transmitted to the order clerk. A regular printed form was provided for this purpose, but in some instances a memorandum was furnished the order clerk either verbally or in some way other than by the use of the regular form. The order clerk then made out an order to the publisher on a printed form in use by the taxpayer which bore a specific number, directing the insertion of certain copy in one or more certain issues of the publication to which the order was directed. After the orders addressed to the publications were made out it was the practice of the company to mail to the advertiser a confirmation of the advertising placed. This confirmation was made out on a printed form designated as "record of advertising order." This record was made and furnished the advertiser by the order clerk as a matter of routine without instruction from the account executive or officers of the company. There was then made out for the use of the taxpayer's accounting department a loose-leaf sheet for each customer which was filed in a special binder designated "record of advertising placed." As the next step in handling the account, a bill made up by the accounting department from the "record of advertising placed" was rendered the customer.
7. During the year 1918 the following salaries were paid to stockholders:
Otto Barth ............ $2,600.00 B.F. McGuirl .......... 2,600.00 H.E. Stewart .......... 2,352.50 F.E. Whalen ........... 1,060.00 H.K. Turnbull ......... 12,000.00 _________ 20,612.50
These stockholders were regularly and actively engaged in the affairs of the corporation without outside interests, giving their time to the business and to the affairs of the corporation exclusively. Turnbull was the active and direct manager of the business. He not only brought in more than 50 per cent of the advertising employments but guided the activities of the concern. The other stockholders conferred with him and followed the policies which he directed.
8. The following schedule sets forth the income and expense of the taxpayer for the year 1918:
Income
Commission on advertising $47.967.02 Art ..................... 1,630.81 Cash discount ........... 11,628.45 Commission on engraving . 1,598.33 Fees for preparation of advertising ........ 23,516.28 __________ $86,340.89Expense
Rent, phones, postage, etc. ................. $3,780.34 Travel ................. 981.85 Salaries (not including stockholders) ........ 23,093.42 Discount ............... 11,394.49 Art .................... 666.58 Officers' salaries ..... 20,612.50 Interest ............... 299.28 Taxes .................. 392.86 Bad debts .............. 3,136.01 Depreciation ........... 684.25 __________ 65,041.58 __________ Net income ....................... 21,299.31
The commissions on advertising placed varied during the year, ranging from 10 per cent. to 15 per cent. The commission on engraving was on the basis of 10 per cent. of sales. The art department sustained a loss of $668.58 during the year, which should be charged against the total commissions set out for the art department. Included in the amount set out as alleged commissions on advertising is an item of $394.45, representing bad debts recovered. An analysis of the discount account — that is, all discounts taken and allowed by the company during the year — discloses that the company realized a net profit from discounts in the amount of $233.96.
9. The balance sheets of the corporation as of the beginning and end of 1918 are as follows:
Beginning of year 1918
Assets | Liabilities | Cash .................... $4,997.67 | Stock ................ $5,000.00 Furniture ............... 1,911.11 | Undivided surplus .... 10,000.00 Accounts receivable ..... 31,830.56 | Accounts payable ..... 23,739.34 _________ | _________ 38,739.34 | 38,739.34End of year 1918
Assets | Liabilities | Bills receivable ........ $15,000.00 | Stock ................ $ 5,000.00 Furniture ............... 1,207.86 | Undivided surplus .... 10,000.00 Accounts receivable ..... 55,717.57 | Loans ................ 2,000.00 Stationery and supplies . 386.79 | Overdraft ............ 11,650.95 | Reserved for taxes ... 2,162.02 | Accounts payable ..... 42,399.25 __________ | _________ 73,212.22 | 73,212.22
The account "bills receivable," amounting to $15,000, was made up of notes of two advertisers, largely one advertiser, taken during the last days of December and payable during the early part of January, 1919. The notes were taken from advertisers maintaining current accounts running into considerable value. They were not set up on the books of the taxpayer until December 31, 1918, and were paid before the end of January, 1919. The "accounts receivable" represented advertisers' current accounts billed out to advertisers, against which "accounts payable" represented largely amounts due publishers for advertising placed. The amount of $11,650.95, designated "overdraft," was due to the issuance of checks in the last days of December, 1918, for the purpose of paying all possible advertising accounts before the close of the year. This overdraft was almost immediately absorbed after the 1st of January, 1919. The amount of $2,000, designated "loans," represented money borrowed from the bank in November, 1918, and which was repaid in 1919. At the close of business December 31, 1918, and before the distribution to him of his share of earnings of the corporation, the individual account of H.K. Turnbull was overdrawn some $12,000.
10. The company had no contracts with publishers for the purchase of space in bulk, but an individual order was placed with each separate publication for space to be used by each advertiser, and the orders for different advertisers bore no relation to each other. The company made no written contracts with the advertising mediums in which it placed advertising, nor did the advertising mediums make any written contracts with the taxpayer, except in the case of the Curtis Publishing Company. In this case the Curtis Publishing Company in an agreement dated April 19, 1917, designated "agency terms," agreed to "accept orders from" the taxpayer upon the conditions and terms enumerated therein. When the company was accorded what was known as "agency recognition," which was usually done by way of a letter from the publisher, or verbal information, that fact established the right of the company to what is termed by publishers as "commissions" or "agency differential" and "cash discounts" allowed by the publishers. Space in publications was not ordered by the company in advance of bona fide orders received from advertisers and orders were given the publishers in the name of the taxpayer's client. The orders were subject to cancellation at any time. The agency did not acquire any right or title to any advertising space and did not receive the benefit of what are known as "preferred positions," but this benefit ran directly to the advertiser even though the advertiser changed agencies or handled his own advertising direct with the publisher.
11. In practically all instances the publications or advertising mediums held the taxpayer on account of advertising placed by the taxpayer for its advertisers. In two instances certain notes of the advertiser made payable direct to the publishers were negotiated to the publishers by the taxpayer for advertising placed in the publications by the taxpayer for the advertisers. As a general rule the taxpayer had on hand sufficient funds realized from advertisers who paid accounts in advance or promptly, so as to be able to invariably take advantage of the cash discounts allowed the taxpayer by publishers and to carry the accounts of those advertisers who had not paid their bills to the taxpayer before the taxpayer was required to pay the publisher.
12. Bills received from publishers for space used by the taxpayer's clients were checked against the "record of advertising placed" maintained by the taxpayer for correctness as to space used, number of insertions, gross rate, and proper allowance of what was termed "advertising agency commissions" or "agency differential" and "cash discount." When the bills were found to be correct they were passed for payment, provided the proper proof of publication had been furnished. With practically no exception the advertisers were allowed the same rate of discount as was taken by the taxpayer. In the case of two or three advertisers where little or no copy service was required and practically no outlay in traveling expenses, a special and arbitrary cash discount, slightly higher than that taken by the taxpayer, was arranged.
13. The Commissioner of Internal Revenue, upon audit of the plaintiff's return for the year 1918, denied to the plaintiff the classification as a personal-service corporation, and by reason thereof found a deficiency in income and profits tax of $7,718.63 for said taxable year. The commissioner notified plaintiff of his determination of said deficiency by letter dated August 28, 1924. Whereupon, on October 17, 1924, plaintiff filed an appeal before the Board of Tax Appeals, which said appeal was duly heard and submitted to said board and by it decided on April 14, 1925, approving the determination of the commissioner. After the decision of said board an additional assessment was made against plaintiff in the sum of $7,718.63 for the year 1918, which plaintiff paid to the United States involuntarily and under written protest on March 22, 1926. The income upon which this tax was assessed against the corporation has been taxed as the individual income of the stockholders.
14. On April 22, 1926, plaintiff duly filed with the Commissioner of Internal Revenue a claim for refund of $7,718.63 for income and profits taxes claimed to have been theretofore illegally collected from it for the year 1918. Thereafter, on or about the 29th day of May, 1926, plaintiff's claim for refund was rejected by the Commissioner of Internal Revenue.
Arnold R. Baar, of Chicago, Ill. (Wilbur A. Giffen and KixMiller, Baar Hoffman, all of Chicago, Ill., on the brief), for plaintiff.
Arthur J. Iles, of Indianapolis, Ind., and Herman J. Galloway, Asst. Atty. Gen. (George H. Foster, of Washington, D.C., on the brief), for the United States.
Before BOOTH, Chief Justice, and WILLIAMS, LITTLETON, GREEN, and GRAHAM, Judges.
The plaintiff is a Missouri corporation, with its principal office at Kansas City. Since 1910 it has been engaged in the business of an advertising agency. In 1919 the plaintiff filed for the year 1918 its tax return upon the basis of a personal-service corporation. The Commissioner of Internal Revenue denied the plaintiff personal-service classification, re-audited plaintiff's return, and assessed a deficiency tax against the plaintiff of $7,718.63. Without paying the tax, the plaintiff appealed to the Board of Tax Appeals. The board, following a hearing, approved, on April 14, 1925, the determination of the commissioner. On March 22, 1926, the plaintiff, under written protest, paid the tax and filed a claim for refund, which on the 29th of May, 1926, was denied by the commissioner. This suit is for the recovery of the deficiency tax paid as above.
Section 200 of the Revenue Act of 1918, 40 Stat. 1058, provides as follows:
"That when used in this title — * * *
"The term `personal service corporation' means a corporation whose income is to be ascribed primarily to the activities of the principal owners or stockholders who are themselves regularly engaged in the active conduct of the affairs of the corporation and in which capital (whether invested or borrowed) is not a material income-producing factor; but does not include any foreign corporation, nor any corporation 50 per centum or more of whose gross income consists either (1) of gains, profits or income derived from trading as a principal, or (2) of gains, profits, commissions, or other income, derived from a Government contract or contracts made between April 6, 1917, and November 11, 1918, both dates inclusive."
Section 900(g) of the Revenue Act of 1924, 43 Stat. 337 (26 USCA § 1218 note), makes the findings of the Board of Tax Appeals prima facie evidence of the facts therein stated.
The issue here is one of fact. Both the plaintiff and defendant cite a multitude of cases, too many to review in detail; from them, however, it is apparent that the real contention is centered exclusively upon an ascertainment of facts. If the plaintiff's business activities and corporate organization come within the requirements of the revenue act, it may not be denied the classification for which it contends. This is conceded by both parties to be the established rule, and we need not fortify the statement by a long list of cases heretofore before the Board of Tax Appeals and the courts.
The applicable section of the revenue law imposes upon the plaintiff in this case the establishment of four indispensable facts, which we discuss in order. First, the income of the corporation "is to be ascribed primarily to the activities of the principal owners or stockholders." The Board of Tax Appeals found this fact to have been proven. The record herein corroborates the findings of the board in this respect. The list of stockholders set out in Finding III discloses the number and proportionate ownership of the capital stock of the corporation, and the board found that they were all regularly and actively, to the exclusion of all outside interests, engaged in the business. The defendant's challenge to the verity of this finding is rested solely upon what is said to be a situation which negatives the fact of the principal stockholders being actively engaged in the business. The present record discloses that certain stockholders active in the business of the corporation acquired their stock by purchase from H.K. Turnbull, president of the company, by an initial payment of a certain sum in cash, deferred payments to be met out of dividends earned by the company. It is further proven that when certain of these stockholders withdrew from the corporation their stock was repurchased by Mr. Turnbull, he paying therefor all the payments theretofore made thereon, either in cash or by way of dividends; the certificates of stock having been retained by Turnbull until all payments for the same were duly made. The proof is conclusive that the certificates of stock were made out in the name of the purchaser, and the transfer of the same to him, duly authenticated in the books of the corporation. True, the former owner retained what he deemed adequate security for deferred payments on the stock; but the transaction proves a sale on credit. The certificates were merely evidence of ownership of stock, Pacific National Bank v. Eaton, 141 U.S. 227, 11 S. Ct. 984, 35 L. Ed. 702, and the failure to possess it by the purchaser, if the intention of the parties was to consummate a sale, does not convert the transaction into something other than a sale, Beardsley v. Beardsley, 138 U.S. 262, 11 S. Ct. 318, 34 L. Ed. 928. The stockholders involved in this transaction were concededly active in the business of the corporation, devoted their entire time to its affairs, and the nominal salaries they received clearly indexes that their primary concern was the production of dividends in which they had a monetary interest as stockholders, and which they received in proportion to their stock interests. We find nothing in the present record to impeach the findings of the board upon this issue.
Next, it is established beyond doubt that the principal stockholders were continuously active in the business. The defendant's contention in opposition to this fact is not sustained by the record. During eleven months of the year in issue the nonactive stockholders owned 18.2% of the outstanding capital stock of the corporation, and save for a single month did they own more. See Andrews-Bradshaw Co. v. United States, 65 Ct. Cl. 354. Treasury Regulations 45, art. 1529, is not in conflict with this holding. We quote it as follows:
"No definite percentage of stock or interest in the corporation which must be held by those engaged in the active conduct of its affairs in order that they may be deemed to be the principal owners or stockholders can be prescribed as a conclusive test, as other facts may affect the presumption so established. No corporation or its owners or its stockholders, however, shall make a return in the first instance on the basis of its being a personal-service corporation unless at least 80% of its stock is held by those regularly engaged in the active conduct of its affairs."
The paid-in capital of the corporation was assuredly nominal and not in any sense a material income-producing factor, unless the defendant's argument to the contrary is sustainable. The fundamental basis upon which the defendant contends for the use of capital as a material factor in producing income is predicated upon the system adopted in carrying on the plaintiff's enterprise. The plaintiff, it is said, paid the publications for advertising space engaged in behalf of its customers in advance of payments received therefor from its customers. In enumerated instances this is true, and manifestly exacted the use of funds. The answer to the contention is found in the case of Snitzler-Warner Co. v. Commissioner, decided by the Board of Tax Appeals May 2, 1929, 16 B.T.A. 342. The defendant admits that the plaintiff did not guarantee the accounts of its customers with the publishers, and the advance payments made by the plaintiff served only to secure a cash discount from the publishers, which was passed on to the customer by the plaintiff, and established the plaintiff as what is termed a "recognized agency." It is indeed difficult to perceive wherein the method produced income to any material extent. In the Snitzler-Warner Co. Case just cited the board said:
"The fact that a business has capital, or in certain contingencies might require capital, is not sufficient to deny personal service classification, if, in fact, capital is not a material income-producing factor. S.A. Conover Co., [Dec. 2302] 6 B.T.A. 679.
"The general practice of the petitioner was to pay bills to publishers after receiving payment from clients. However, in some cases, the petitioner did pay publishers amounts due from clients before the clients paid petitioner. The evidence discloses that throughout the year 1920 the average amount petitioner expended to pay publishers' bills, before receiving payments, either by notes or cash, from clients was $66,030.22 and that during the year 1921 this amount was $35,504.86. * * *
"Did the payment of publishers' bills by petitioner to the extent set forth above affect the volume of petitioner's business in such manner that it might be said that capital was a material income-producing factor? We believe not, when we consider that the gross income of the petitioner for the years 1920 and 1921 was $183,527.80 and $235,381.65, respectively, and that the gross billings for space for the years 1920 and 1921 amounted to $1,338,687.74 and $1,359,510.33, respectively. * * *
"We conclude that capital was not a material income-producing factor in petitioner's business during the years in question."
The board in its findings allocated out of the corporation's income certain sums to active stockholders upon the theory of individual responsibility for securing accounts which produced the sums. If one stockholder was attached to a particular advertiser, the paid-in commission received from him was ascribed to the activities of this stockholder. The present record, we think, discloses the error in the finding and overcomes its prima facie effect. The proof, clear and convincing, without contradiction from the defendant, establishes a business policy upon the part of the corporation which excludes the possibility of ascribing any definite portion of the annual income to any single stockholder. To secure the account of an advertiser involved individual effort and cooperation from all the interested parties. Customers were not enlisted when first introduced to a stockholder. On the contrary, as a preliminary it was first necessary to investigate the customer's business, ascertain his sales methods, obtain his publicity needs, and then convince him by a physical exhibit of the intended course to be pursued that the services of the agency would prove profitable. To do this required personal service of a high order, and until it was accomplished no income of significance came into the treasury. If the account of the advertiser was secured, the proof shows, not only individual, but combined effort was made to retain it and attain results for the customer. The president of the corporation was in command. He supervised all the accounts and, in cooperation with the other stockholders, was responsible for the income. The fact that one man may have been in charge of a single or several accounts does not entitle him to receive the full credit for the income derived therefrom, for the evidence conclusively shows that the co-operative policy of the corporation enlisted the combined services of the stockholders in meeting with the requirements of its customers. A signal illustration of what we mean is found in the case of Krebs, an active employee of the corporation. Krebs introduced Turnbull to a prospective advertiser, one whose account was especially desirable. Krebs had been in the employ of the prospective customer and stood well with him. The account was afterwards secured, not by reason of anything save the success of Turnbull in making a survey of the customer's advertising needs and convincing him of the possibilities of success. Krebs was not at the time proficient in the business and could not have possibly secured the customer or retained him, because of his admitted inexperience, yet the board ascribed the entire income of the corporation, amounting to $86,155.09, to Krebs. The situation with respect to the other stockholders, aside from Turnbull, is not materially different than in the case of Krebs. True, the others were more experienced, but the income of the corporation was largely due to Turnbull, assisted as stated in the findings.
The findings of the board, with the exception above noted, entitled the plaintiff to classification as a personal-service corporation. They are complete, and we need not go further into detail. The statute was complied with.
Judgment will be awarded the plaintiff for $7,718.63, with interest.
WILLIAMS, LITTLETON, GREEN, and GRAHAM, Judges, concur.