A. J. Tower Co. v. Commissioner

A. J. TOWER CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. A. J. Tower Co. v. Commissioner Docket No. 11402. United States Board of Tax Appeals 16 B.T.A. 101; 1929 BTA LEXIS 2643; April 22, 1929, Promulgated *2643 1. AMORTIZATION. - Held, deductions claimed in 1918 and 1919 returns for amortization of war facilities should be reduced by as much of an award received in 1920 from the War Department as was made to cover loss in war facilities. 2. L. S. Ayers & Co.,1 B.T.A. 1135, followed. W. S. Felton, Esq., for the petitioner. L. L. Hight, Esq., for the respondent. ARUNDELL *101 Petitioner appeals from deficiencies in income taxes of $12,083.50 for the calendar year 1918 and $4,880.44 for the calendar year 1919, these deficiencies having been asserted and advised of by respondent on December 1, 1925. The facts are stipulated and the issues presented by petitioner's assignments of error are upon the correctness of respondent's action in (a) determining the amount of amortization allowable to petitioner for 1918 and 1919 in respect to certain war facilities under section 234 (a)(8) of the Revenue Act of 1918, by deducting from the total computed amortization a part of the amount paid petitioner in 1920 by the War Department upon its claim for reimbursement for loss due to cancellation of its contracts, (b) in reducing invested*2644 capital on account of income and profits taxes for prior years, and (c) in reducing current earnings available for dividends by a tentative tax, thereby reducing surplus and invested capital. At the hearing petitioner withdrew its assignment of error (b). FINDINGS OF FACT. Petitioner is a Massachusetts corporation with office at Boston. In March and June, 1918, it entered into certain contracts with the United States, through the War Department, to manufacture oilskin suits, jackets, overalls and hats. These articles were for the use of the American forces in, france. In order to perform these contracts petitioner contructed certain buildings as additions to its factory *102 at a cost of $153,844.66 which were completed in the fall of 1918 and a few weeks later, on November 12, 1918, the contracts were canceled by the War Department due to the signing of the Armistice. At the time very little use had been made of these facilities. The residual postwar value of these facilities was $85,906.86. Thereafter, petitioner presented to the War Department a claim for damages sustained by it due to the cancellation of the contracts. The war contracts referred to merely*2645 provided for the petitioner furnishing certain articles in specified numbers and obligated the Government merely to accept and pay for these at prices fixed by the contracts. They contained no provisions obligating the Government to pay for facilities necessary to be constructed by petitioner or providing for cancellation of the contracts by the Government or providing that any cost or damage or elements of damage would be compensated for in case of cancellation by the Government. When petitioner filed its claim the Government alleged that the contracts were informal and not binding upon it, inasmuch as they had not been signed by a properly authorized contracting officer of the Government. However, under the provisions of the so-called Dent Act, the petitioner's claim was accepted for consideration. Numerous investigations were made by the War Department and hearings were held and, finally, in the year 1920, it settled petitioner's claim by a payment of $78,477.61. Of the amount so paid the sum of $39,809.38 was stated in the allowance to represent loss suffered by petitioner with respect to its war facilities. The full amount of the payment of $78,477.61 was included by petitioner*2646 as income in its return for the calendar year 1920. In determining the deficiencies here appealed from, respondent computed the amortization in respect of these facilities, allowable as a deduction, as $28,128.42, this being the original cost of $153,844.66 less a postwar residual value of $85,906.86 and less the amount of $39,809.38 paid in settlement by the War Department in 1920. Of the sum of $28,128.42 allowed by respondent, $20,670.23 was allocated by him to the year 1918 and $7,458.19 to the year 1919. In arriving at the deficiencies appealed from, respondent reduced invested capital for the calendar year 1918 by the sum of $23,204.92, and for the calendar year 1919 by the sum of $23,491.11, upon the ground that for the first mentioned year only $106,828.85 of a dividend of $141,258.91 paid by petitioner represented earnings within that year, and $34,430.06 was paid from surplus, and that for the last year mentioned only $125,145.30 of a dividend paid by petitioner in the sum of $160,000 represented earnings of that year and $34,854.70 was paid from surplus. In determining the amount of earnings available in each of these years for the payment of dividends, respondent*2647 *103 deducted a "tentative tax" as chargeable against the earnings for each respective year although such tax was not due or payable in either case within such taxable year. If such "tentative tax" had not been deducted in computing earnings available for dividends, such earnings would in each year have exceeded the amount of the dividend paid. OPINION. ARUNDELL: The first issue relates to respondent's action in computing amortization allowable to petitioner as a deduction from gross income for the calendar years 1918 and 1919 under the provisions of section 234(a)(8) of the Revenue Act of 1918. Petitioner claims the right to deduct the total amount of the loss in value of the facilities, which it is agreed was $67,937.80, irrespective of the fact that in 1920 the War Department, in settlement of its claims on account of cancellation of the contracts, for performance of which the facilities were acquired, paid $78,477.61, and that $39,809.38 of this amount was paid on account of the loss in value of facilities, the amounts paid by the War Department being reported as income by petitioner for the year 1920. Respondent in determining the amount allowable as a deduction*2648 reduced the total amortization by the amount of $39,809.38 reimbursed to petitioner in 1920. Section 234(a)(8) of the Revenue Act of 1918 provides: In the case of buildings, machinery, equipment, or other facilities, constructed, erected, installed, or acquired, on or after April 6, 1917, for the production of articles contributing to the prosecution of the present War, and in the case of vessels constructed or acquired on or after such date for the transportation of articles or men contributing to the prosecution of the present War, there shall be allowed a reasonable deduction for the amortization of such part of the cost of such facilities or vessels as has been borne by the taxpayer, but not again including any amount otherwise allowed under this title, or previous Acts of Congress as a deduction in computing net income. * * * The petitioner in filing its returns for the taxable years in question had the right, under the provision quoted, to a deduction, in arriving at net taxable income, of such part of the amortization of his war facilities as was borne by him. It is agreed that the difference between the cost and the postwar value of such facilities was $67,937.80 and*2649 petitioner took credit for this amount. The question for decision is whether this basis should be decreased by an amount paid in a subsequent year by the Government upon a claim filed by petitioner for damages suffered by him due to cancellation of his contracts, one of the allowed elements of such damage being a part of the cost to him of facilities installed for the manufacture of the materials called for by the contracts. *104 In the case of , we laid down this rule (p. 558): Whether the Government contracts under which a taxpayer produced articles contributing to the prosecution of the war specifically provided for amortization as such or, in other words, provided that the Government would pay the cost, or any part thereof, of the facilities acquired or constructed by a taxpayer in order to carry out the contracts, seems to us to be not controlling. The real question is: Did the Government actually pay or bear the expense of such facilities? If it did, such part of the cost borne by the Government must be subtracted from the cost of facilities acquired by the taxpayer upon which the amortization deduction*2650 is allowed. There is no deduction allowed to a taxpayer with respect to such part of the cost of facilities which was not borne by him. Whether such cost of facilities was actually borne by the Government originally when the facilities were acquired, or whether it was borne by the Government subsequently when the settlements of the contracts were made between Government and the taxpayer, is immaterial. We believe that the contention of the Government in this regard, as a matter of law, is well founded, but whether such principle is applicable to the facts in this case presents more difficulty. (Italics added.) In that case we concluded that the amortizable cost of war facilities should not be reduced by the amount of the Government award, which was a lump sum settlement, because it was not shown that any part of the claim for the cost of facilities was allowed in the settlement that was made. In , and , we held, citing the Standifer case, that the amortizable cost was properly reduced on account of awards made. In neither case does it appear that the contracts provided*2651 for the Government bearing any part of the cost of facilities. In the Liberty case the award involved was "for loss in value of special facilities chargeable to cancelled contracts" and in Rosenwald & Weil it was made "as reimbursement for part of the cost of special facilities." Under these decisions it is not necessary for the Government to have contracted in the first instance to pay a part of the cost of the facilities or that it later recognized a contract liability in that respect; whether or not there is any contractual liability, if the Government pays or bears any part of the cost, then so much has not been borne by the taxpayer and the cost must be reduced accordingly for amortization purposes. Petitioner argues that under the established principle of computing tax on an annual basis the payment received in 1920 should not be related back to 1918 and 1919 so as to affect income for those years. Section 234(a)(8) specifically provides for a reexamination of returns filed and redetermination of taxes on account of adjustments for amortization of war facilities. There is no issue raised as to the allocation by the respondent of the deductions allowed for the*2652 years 1918 and 1919. *105 Upon the remaining issue we hold that respondent's action in reducing invested capital for each of the taxable years in question by deducting from income available for dividends an amount representing a tentative tax upon earnings for that year, but not due or payable within such year, was in error. Current earnings or accumulated surplus may not be so reduced. ; . The deficiencies should be recomputed in accord with the foregoing findings of fact and opinion. Reviewed by the Board. Judgment will be entered under Rule 50. TRUSSELL dissents.