The opinion
*962 OPINION.
TRAmmell:
With respect to the question as to whether the taxpayer is entitled to have its taxes assessed under the provisions of section 328, the taxpayer has introduced no evidence from which the Board can find that there were any abnormalities affecting income or invested capital during the years involved. The deficiency letter states that the Commissioner had assessed taxes for 1918 under the provisions of section 328. We have no evidence that the Commissioner did not comply with the statute in the selection of comparatives and we are unable to find that the tax liability for that year was not correctly determined by the Commissioner.
For 1919, Docket No. 9531, the two questions involved are whether the taxes for 1918 should be prorated and deducted in determining invested capital for 1919, and the deductibility of an alleged donation of $25,000. On the first question section 1201 of the Revenue Act of 1926 is controlling. That section is as follows:
The computation of invested capital for any taxable year under the Revenue Act of 1917, the Revenue Act of 1918, and the Revenue Act of 1921, shall be considered as having been correctly made, so far as relating to the inclusion *963 in invested capital for such year of income, war-profits, or excess-profits taxes for the preceding year, if made in accordance with the regulations in force in respect of such taxable year applicable to the relationship between invested capital of one year and taxes for the preceding year.
In view of this provision of the statute we must hold that the action of the Commissioner, with respect to the reduction of invested capital is correct.
The check which the taxpayer issued in the amount of $25,000 for the purpose of the erection of the school building, was issued on December 31, 1919, to the board of directors of the corporation. No part of the fund was paid during 1919 for any purpose, so that the question is whether the taxpayer actually made a donation during 1919 for the purpose of erecting the school building. The fund was separated from the funds of the taxpayer only in that it was credited in the name of the directors of the corporation rather than in the name of the corporation itself. We are of the opinion that the board of directors were merely acting for and in behalf of the corporation when it received the check. The funds did not leave the control of the corporation until the money was paid out in the construction of the building. In order to constitute a gift or contribution there must be an actual delivery of the gift; that is, the gift must be complete. There must be a donee who receives the gift, either actually or constructively, and the donor must become divested of ownership and control over it. Partridge v. Kearns, 53 N. Y. S. 154.
Under the provisions of chapter 21 of Pell’s Code of North Carolina, the directors of a corporation are its managers. They are considered to be the agents of the corporation through which it carries on its business transactions. Coble v. Beall, 130 N. C. 533 ; 41 S. E. 793 .
The payment of $25,000 by the corporation was made to its managers and agents. A delivery to a third person as the agent of the donor is insufficient to meet the requirements of a gift or contribution until there is an actual delivery to the donee or the donee’s agent. Bickford v. Mattocks, 50 Atl. 894 .
In view of the foregoing, it is our opinion that there was no actual gift or contribution made by the taxpayer during 1919. For that reason it is our opinion that the taxpayer is not entitled to a deduction on account of the $25,000 paid to its directors during 1919 for the purpose of the erection of a school building. It is unnecessary for us to determine whether the contribution is deductible in determining the taxpayer’s net income for 1920, since that year is not before us.
Judgment for the Commissioner.