8 T.C. 47">*47 The respondent determined a deficiency of $ 3,059.23 in the petitioner's income tax liability for the year 1941.

The issues are:

(1) The deductibility of $ 4,000 disallowed by the respondent and included in an interest payment of $ 4,219.33; and

(2) the deductibility of amounts paid for state gasoline taxes, for Federal taxes on theater admissions, and for New York City sales taxes.

FINDINGS OF FACT.

The petitioner resides in Summit, New Jersey, and filed his income tax return for the taxable year with the collector of internal revenue for the second district of New York. He is a lawyer, specializing in patent law, and is a member of the firm of Gifford, Scull & Burgess, with offices at 141 Broadway, New York City.

In December 1940 the petitioner was persuaded 1947 U.S. Tax Ct. LEXIS 314">*316 to take out single premium life insurance policies on his own life, having a death claim value of about $ 240,000. He borrowed from Archer & Co., collateral note dealers, $ 192,000 to pay the premiums thereon and hypothecated the policies, together with other life insurance policies, to secure the loan. On January 8, 1941, he borrowed $ 11,988.90 and pledged a new single premium life insurance policy as collateral. The notes covering the loans aggregated $ 203,988.90 matured on December 30, 1941. Interest at 2 per cent was due in advance.

8 T.C. 47">*48 On December 31, 1940, the petitioner paid all of the interest due on the $ 192,000 loan, except $ 47.92, which he paid on January 5, 1941. On January 10, 1941, he paid $ 237.11 as interest due on the $ 11,988.90 loan.

On October 16, 1941, Archer & Co. sent the petitioner a bill for $ 4,136.44 covering the interest on the notes for $ 203,988.90, dated December 30, 1941, due December 30, 1942, and designated "renewal of a similar obligation maturing December 30th."

On December 20, 1941, the petitioner borrowed from Archer & Co. the sum of $ 4,000, which that company paid to him by its check dated December 22, 1941. He executed his promissory1947 U.S. Tax Ct. LEXIS 314">*317 note, due in one year, payable to his creditor for the said sum. He then deposited the check in his bank account at the Summit Trust Co., hereinafter called the trust company, where it was commingled with other funds. The trust company cleared the check on December 27, 1941. The amount of interest, also due in advance, on the $ 4,000 note was $ 82.89. The petitioner had also borrowed $ 3,000 from the trust company on September 16, 1941, and repaid that loan on January 27, 1942.

On December 26, 1941, the petitioner drew his check on his account with the trust company, payable to Archer & Co., for the sum of $ 4,219.33 to cover the interest, due in advance, on his loans of $ 203,988.90 and also such interest on the $ 4,000 loan. The check was endorsed to the trust company, was cleared on December 27, 1941, and was paid on December 31, 1941.

During the year 1941 the petitioner made nine payments as interest on various items of his indebtedness to Archer & Co., the trust company, George F. Scull, the New England Mutual Life Insurance Co., the Chemical Bank & Trust Co., and others (including the $ 4,219.33 payment to Archer & Co.), aggregating $ 5,276.55.

On December 26, 1941, not1947 U.S. Tax Ct. LEXIS 314">*318 counting the $ 4,000 borrowed from Archer & Co., the petitioner had $ 3,180.79 in his checking account in the trust company. The petitioner borrowed from Archer & Co. because the interest rate was 2 per cent, while the rate charged by the trust company and the Chemical Bank & Trust Co. was higher. No additional collateral to secure the $ 4,000 note was required by Archer & Co. because the insurance policies held by that company were ample to secure the loans and their cash value was increasing yearly.

The petitioner did not borrow the $ 4,000 from Archer & Co. for the single purpose of paying the advance interest due on the $ 203,988.90 loan or the $ 4,000 loan. During December many bills, including life insurance premiums, became due and the petitioner needed to have sufficient funds to pay them. The proceeds of the $ 4,000 loan and other funds in petitioner's bank account were used to pay such bills, including the bills for interest and insurance premiums.

8 T.C. 47">*49 The petitioner expended certain sums for gasoline taxes paid to the States of New Jersey and New York, Federal excise taxes on admissions, and New York City sales taxes, which he estimated to be $ 20, $ 100, and $ 1947 U.S. Tax Ct. LEXIS 314">*319 20, respectively. The sum of $ 80 is a proper deduction for the total amount of such sums so expended.

The Commissioner disallowed the deduction of $ 4,000 of the $ 4,219.33 paid by the petitioner on December 26, 1941, as interest on his indebtedness to Archer & Co., on the ground that "the giving of a promissory note in the amount of $ 4,000 to the original creditor does not constitute a cash payment and therefore not an allowable deduction under the provisions of section 23 (b) of the Internal Revenue Code for interest paid." He also disallowed the deduction of the amounts claimed for payments of gasoline, admission, and New York City sales taxes as "not having been supported."

OPINION.

The first issue presents a purely factual question -- Did the petitioner pay to Archer & Co. the sum of $ 4,219.33 as interest on his indebtedness to that company, or did he, as respondent has held, pay the interest by giving a note which remained unpaid at the end of the year and constituted an addition to the original debt? It is agreed that the petitioner borrowed the $ 4,000 from the same creditor to whom he owed the larger loan. The only controversy is whether the petitioner actually made1947 U.S. Tax Ct. LEXIS 314">*320 a cash payment of interest to Archer & Co. in the total sum of $ 4,219.33, or only substituted his promise to pay for $ 4,000 of the amount due. The petitioner was on the cash basis and cash payments of interest made by him on such basis were deductible under the statute. (Sec. 23 (b), I. R. C.)

The salient facts of record are these: On September 16, 1941, the petitioner borrowed $ 3,000 from the trust company. On October 16, 1941, Archer & Co. sent to the petitioner a bill for the interest (due in advance) on the notes aggregating $ 203,988.90. On December 20, 1941, the petitioner borrowed $ 4,000 from Archer & Co., which issued on December 22, 1941, its check to him for that amount. He borrowed from Archer & Co. rather than from the trust company because they charged a lower interest rate. The check was deposited by petitioner in his general account and commingled with other funds in the trust company. The check was cleared by that company on December 27, 1941. On December 26, 1941, the petitioner paid $ 4,219.33 to Archer & Co. by his check, which was paid on December 31, 1941. On December 26, 1941, not including the proceeds of the $ 4,000 loan, the petitioner had $ 3,180.791947 U.S. Tax Ct. LEXIS 314">*321 in his bank account.

8 T.C. 47">*50 The petitioner did not borrow $ 4,000 solely to pay his interest due to Archer & Co. This item was one of several bills due in December. The cash received by the petitioner from the proceeds of his $ 4,000 loan was commingled with his other funds in the trust company. Its identity was lost and it could not be traced to the payment of the interest charge made in response to the notice of October 16, 1941. The petitioner made a cash payment of interest as such. He did not give a note in payment, as held by the respondent. Consequently, the interest payment of $ 4,000 disallowed by the respondent is properly deductible.

The situation in this case differs from that in John C. Cleaver, 6 T.C. 452; affd., 158 Fed. (2d) 342, where the bank computed interest for five years on the principal amount of each note and deducted the interest so calculated from the principal amount of each note and made the balance available to the taxpayer. Obviously, the interest in the Cleaver case never went through the hands of the borrower and never passed through his bank account. Though representing interest, 1947 U.S. Tax Ct. LEXIS 314">*322 it was merely an addition to the principal sum and did not become deductible until the notes were paid. Here the facts differ substantially.

The second issue presents the familiar problem of the proper amount of deduction allowable for sales taxes paid on gasoline and purchases in New York City and for Federal taxes on admissions. In numerous cases we have allowed approximate amounts for expenditures so paid under the reasoning of Cohan v. Commissioner, 39 Fed. (2d) 540. In that case the court said:

Absolute certainty in such matters is usually impossible and is not necessary; the Board should make as close an approximation as it can * * *. * * * to allow nothing at all appears to us inconsistent with saying that something was spent. * * * there was obviously some basis for computation, if necessary by drawing upon the Board's personal estimates of the minimum of such expenses.

We have found that $ 80 is a proper sum allowable as a deduction for such taxes and we so hold.

Decision will be entered under Rule 50.

Kern, J., dissenting: I am unable to agree with the conclusion reached by the majority.

On or before December 30, 1941, 1947 U.S. Tax Ct. LEXIS 314">*323 petitioner was obligated to pay to Archer & Co. the sum of $ 4,136.44 as interest upon his notes. While 8 T.C. 47">*51 it would appear that he had funds sufficient to pay his other bills payable, it is obvious that unless he borrowed money he could not pay the interest. He certainly could not pay his other bills and also pay the interest. On or about December 22, 1941, he obtained as an additional loan from Archer & Co. the sum of $ 4,000. On December 26, 1941, petitioner paid to Archer & Co. $ 4,219.33, which was the amount due as interest on his notes, plus interest in the amount of $ 82.89 on the additional loan of $ 4,000 which was payable in advance. These being the evidentiary facts found, I would conclude that petitioner borrowed $ 4,000 from Archer & Co. on December 22, 1941, for the purpose of paying interest to Archer & Co. on December 26, 1941, in the total sum of $ 4,219.33.

If petitioner executed his note to Archer & Co. on December 22, 1941, in the amount of $ 4,000, and Archer & Co. thereupon credited petitioner's indebtedness to it on account of interest ($ 4,219.33) by that amount ($ 4,000), it is clear that petitioner, who was on the cash basis, made no cash payment1947 U.S. Tax Ct. LEXIS 314">*324 of interest deductible by him in 1941. Keith v. Commissioner, 193 Fed. (2d) 596; see John C. Cleaver, 6 T.C. 452; affd., 158 Fed. (2d) 342.

In the instant case there are two factual variations: (1) Instead of taking the shortcuts of bookkeeping entries, the parties went through the full performance of Archer & Co. giving its check to petitioner in the sum of $ 4,000, petitioner depositing this check in his bank, and then petitioner giving his check to Archer & Co. in the sum of $ 4,000 plus $ 219.33; and (2) instead of the borrowing of the interest and the payment of the interest being simultaneous, there was a time interval of a few days (including Christmas) between the borrowing and the payment. These variations, in my opinion, are immaterial and can not exempt this case from being governed by the general rule followed in the cases above cited and laid down by the authorities which those cases discuss. That general rule may be stated as follows: When a taxpayer, on a cash basis, borrows money from a creditor with which he pays interest upon a debt owed to that creditor, there has been1947 U.S. Tax Ct. LEXIS 314">*325 no cash payment of interest which is deductible from gross income.