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Written by : Charles Fortenberry
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hey what's up everybody this is attorney dan nguyen and today i want to talk about trademarks and whether trademark costs are tax deductible so i don't profess to be a tax attorney or cpa or an enroll agent or a tax professional but i do have being a business owner and having dealt with taxes um on a tangential basis i think i can do my best to answer this question but first you gotta understand what what the irs uses as a standard for what can be tax deductible now generally speaking and this is what i found on the irs website you know it has to be ordinary and necessary okay and so then you get to ask hey what's ordinary and necessary that is common and acceptable in your particular industry in my opinion and i think most most accountants uh tax professionals agree that legal fees and trademark costs are tax deductible okay and so uh it is a furtherance of your business it is something that you are protecting for your business and so i think certainly it is ordinary and necessary for your business and are tax deductible so uh you know if you are a business owner looking to um protect your business name your logo or slogan and uh you know get want to get a tax deduction as a bonus feel free to reach out to us and we can see um you know how we can help you okay this is dan talk to you soon bye
Thanks for your comment Pete Phuong, have a nice day.
- Charles Fortenberry, Staff Member
hello friends you are tuned in to the supreme court historian youtube channel this is going to be our first ever tax law decision and also our collections first ever intellectual property law decision this is the commissioner of income tax bombay versus finlay mills limited decided by the supreme court on the 1st of october 1951 the case revolves around three concepts the concept of a trademark and what is its registration what does it amount to and the concepts of revenue expenditure and capital expenditure so let us discuss these three concepts at the outset in a very brief manner by giving illustrations so the first thing that we will discuss is the concept of a trademark which is basically what we uh call a brand name for example so as an illustration let's take let's take this channel supreme court historian i have named this uh channel supreme court historian and i'm uploading videos on this particular subject under this channel heading what if somebody else creates that same name and starts uploading videos as well do i have any legal remedy against this other person the remedy is if i had already registered my channel name as a trademark then nobody else can use it so i can prevent other people from using my brand name and to do that i have to register my channel name as a trademark in order to register as a trademark i obviously have to pay the government some sort of fee some sort of expense has to be incurred by me now what does this income fall under when i file my tax returns is it a revenue expenditure or is it a capital expenditure i am assuming now that i am a company a company incurs certain operational expenses periodically such as paying salaries to its employees or maintaining its offices and premises stuff like that all of that falls under revenue expenditure on the other hand um larger expenses which are not periodical which are uh which are what we call once and for all those expenses which result in the generation or creation of an asset such as buying land or building a factory or buying machinery all of these are assets belonging to the company and the expenses incurred in creating these assets they fall under capital expenditure and it is these three concepts around which cit bombay versus finlay mills revolves the facts are as follows 1943-44 and 1944-45 assessment years the tax returns filed by finlay mills for these two tax for these two assessment years contained certain entries under revenue expenditure these entries related to the expenses that finlay mills had had paid in order to register their trademark these expenses had been incurred by by way of the fee that they paid to the patents office in order to create these these trademarks and according to finlay mills this money that they spend should fall under revenue expenditure the tax department disagreed according to the interpretation of the income tax department the money paid for registering your trademarks should fall under capital expenditure according to the tax department represented in this situation by the commissioner of income tax bombay according to them the registering of a trademark results in the creation of an asset according to them a trademark is basically an asset according to finlay mills the trademark is just your regular operating expense so this uh particular question had to be decided by obviously the judicial authorities which happened to be in uh income tax cases it was the jurisdiction was held by the income tax tribunal which found in favor of finlay mills the income tax tribunal said that indeed trademark registration fees fall under revenue expenditure for this purpose for arriving at this decision the income tax tribunal had relied on a bombay high court judgment uh that had come on the 2nd of september 1946 cit bombay versus century spinning and weaving century spinning and weaving was another textile mill in bombay just like finlay mills was a textile mills in bombay obviously the trademarks that both of them had registered must have been the name of the fabric that they had they had been manufacturing something like raymond or vimal or something like that i'm not very well informed in these matters so anyway uh the cit bombay versus century spinning and weaving was relied upon by the income tax tribunal but cit bombay wanted to overturn this decision so they asked the income tax tribunal to pose this question to the bombay high court again basically they wanted the bombay high court to overturn its own decision that it had given in the century spinning and weaving case on 23rd march 1949 the bombay high court refused to overturn and instead reaffirmed its decision in the century spinning and weaving case thus upholding the income tax tribunal's decision as well the bombay high court basically once again reiterated that trademark registration fees fall under revenue expenditure and the cit bombay decided to appeal this to the supreme court obviously if you have to overturn that decision it has to go to the supreme court the case was heard by a three judgment chief justice and justices mahajan and and chandra shekhar ayer the bench basically had to then ah figure out the import of these three concepts what is really a trademark and what does its registration amount to what is capital diff expenditure and how does it differ from revenue expenditure the cit was represented by the attorney general mcc talwad and he made this argument he relied on an old house of lords judgment british insulated and health b cables versus arthritis happened to be the name of the income tax commissioner in in britain in whatever part of britain this was being contested the house of lords laid down the principles of differentiating between capital expenditure and revenue expenditure and to quote lord caves pretty immortal words when an expenditure is made not only once and for all but with a view to bringing into existence an asset or an advantage for the enduring benefit of the trade there is very good reason for treating such an expenditure as properly attributable not to revenue but to capital so let's break this uh lengthy and informative sentence into bullet points the first point is basically when you try to differentiate how will you define a particular expenditure as expenditure according to lord cave it should fulfill the following criteria first of all it should be an expenditure that is made once and for all it should not be a recurring perpetual expenditure that you have to make like salary for example right salary quite clearly falls under revenue expenditure or operating expenses and not capital expenditure so this should be the kind of expense you do expense you incur only once and once and for all like you buy that particular piece of land once you have to keep on buying that land over and over again you build that particular factory once and for all so these kind of expenses have to be capital expenditure but that is just one of the criteria the next criterion according to lord gave is that this expenditure expenditure should be made with a view to bringing into existence an asset or an advantage an asset should be creat
Thanks LuzzaraP your participation is very much appreciated
- Charles Fortenberry
About the author
I've studied human behavioral ecology at Truman State University in Kirksville and I am an expert in sociology of social movements. I usually feel blah. My previous job was public relations manager I held this position for 23 years, I love talking about lacrosse and camogie. Huge fan of Edward R. Murrow I practice scuba diving and collect chemical elements.
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