The opinion
Smith,
concurring: I concur in the result reached by the Board upon Issue IX. The statute permits a corporation to deduct from gross income “ all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Sec. 234 (a), Revenue Act of 1918. It seems clear from the findings made upon this issue that the entire amount of $30,906,-508.93 expended by the petitioner for maintenance of its ways and structures during the last ten months of 1920 constituted ordinary and necessary expenses. The amount was so classified upon the petitioner’s books of account, and as operating expenses in its report made to the Interstate Commerce Commission. There is no evidence that any part constituted capital expenditures. It can no more be said that $5,589,968.23 represented capital expenditures than it can be said that the entire amount represented capital expenditures.
In making these expenditures petitioner paid out its own funds. At the time it made the expenditures it had no assurance that it would in any wise be reimbursed for them in later years, and in fact there is no evidence that the petitioner was reimbursed. I think, therefore, that, regardless of whether the Director General made an allowance for undermaintenance during the period of Federal control, the petitioner is entitled to deduct the entire amount paid for maintenance of its ways and structures during the last ten-month period of 1920 as ordinary and necessary expenses.