Thorlight-Duncker Carpet Co. v. Commissioner

THORLICHT-DUNCKER CARPET COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Thorlight-Duncker Carpet Co. v. Commissioner Docket No. 19399. United States Board of Tax Appeals 22 B.T.A. 466; 1931 BTA LEXIS 2113; February 28, 1931, Promulgated *2113 1. STATUTE OF LIMITATIONS. - The statutory period for assessment is shown to have been extended by agreements in writing, consequently, the proposed deficiencies are not barred. Sections 278(c) of the Revenue Acts of 1924 and 1926, and sections 274(a) and 277(b) of the Revenue Act of 1926. 2. CHANGE OF ACCOUNTING PERIOD. - For many years prior to 1919 petitioner had kept its accounts and closed its books on a basis of calendar years. It determined to change its system and on October 31, 1919, took its inventory and closed its accounts for the period of 10 months ending on that date. It failed to receive the approval of the Commissioner to this change of accounting period for the year 1919, but the change was approved for the period ending October 31, 1920. Clendening Co.,1 B.T.A. 622, and Virginia Lumber & Box Co.,3 B.T.A. 341, followed in holding that the approval of the Commissioner was necessary. 3. DISCOUNTS ON ACCOUNTS RECEIVABLE - RESERVES FOR. - At the end of each accounting period the petitioner had the established practice of computing the proper discounts upon accounts receivable outstanding on such dates and reducing sales*2114 account in such amount. Held, that the respondent's rejection of this method is approved, and that in redetermining the deficiencies the petitioner should have the benefit of the deduction of all discounts on accounts receivable actually accounted for during the accounting period. 4. INVENTORY OF MERCHANDISE - VALUATION AT COST. - The petitioner purchased at invoice prices less agreed trade discounts. Held, that pursuant to Regulations 45, articles 1582 and 1583, petitioner may in computing the cost of merchandise in inventory reduce the invoice figures by an amount of such discounts computed upon the basis of an average established by the experience of the petitioner over a long period of years. 5. EXCESS-PROFITS CREDIT. - The record shows that the respondent computed the excess-profits credit for the 10-month period ending October 31, 1920, in accordance with the provisions of sections 326(5)(d) and 305 of the Revenue Act of 1918. Chase Morsey, Esq., for the petitioner. T. M. Mather Esq., for the respondent. TRUSSELL *467 Petitioner complains of deficiencies in income and profits taxes determined by the respondent as follows: *2115 for the calendar year 1919, $54,566.26; for the period ended October 31, 1920, $22,457.05. Upon motion duly made and granted the petitioner was permitted to amend the petition, leaving the issues as follows: The petitioner alleges that (1) the deficiencies are barred by the statute of limitations; (2) the tax liabilities should be computed on a basis of a fiscal period ended October 31, 1919, and a full fiscal year ended October 31, 1920; (3) sales should be reduced for each year by an amount equal to discounts allowable on accounts receivable; (4) respondent has refused to allow the petitioner to take its inventories at the lower of cost or market at the close of each year; (5) respondent has failed to revalue the opening inventory consistently with the method of computing income adopted in the determination of the deficiencies; (6) there has been a failure to allow the proper amount of excess profits credit of the period ended October 31, 1920. FINDINGS OF FACT. The petitioner is a Missouri corporation with its principal office at St. Louis, and it was engaged during the taxable years in the business of buying and selling at wholesale, and also at retail, rugs, carpets, *2116 draperies, furniture, decorations, and kindred lines. This business was started in 1863, and the petitioner has conducted it since 1890. The petitioner employed a prominent firm of public accountants to audit its accounts and to prepare its tax returns. Its accounts are kept upon the accrual basis, and the returns were made on the same basis. *468 With respect to its sales at wholesale, it has been the practice of the petitioner since 1914 to enter the amounts of its sales at the invoice prices and to set up on the books at the end of each year, in determining net profits, a reserve for discounts from the wholesale invoice prices, and to which the customers are entitled under the terms of the sales. These discounts are not cash discounts and are customarily allowed without reference to the time of the payment of the account. In each year the amount of the reserve was computed by ascertaining the proportion which the actual discounts allowed during the year bore to the total amount of the collections, and this average rate was applied to the aggregate of the wholesale accounts receivable standing unpaid at the end of the year. It was extraordinarily unusual for a customer*2117 to fail to receive the agreed-upon discount. Wholesale accounts receivable amounted as follows: December 31, 1918, $397,260.57; October 31, 1919, $1,235,468.44; October 31, 1920, $1,201,082.55. The amounts of the reserve for the discounts set up on the books and deducted from income amounted as follows: October 31, 1919, approximate rate 3.88 per cent, actual amount, $48,000; October 31, 1920, approximate rate, 4.08 per cent, actual amount $49,000. With respect to its inventories, containing over 25,000 items of merchandise on hand at the end of each year, it has always been the practice of the petitioner to value the goods at the lower of cost or market. The purchases of the petitioner are made upon terms which include a discount from the invoiced price. These discounts are allowed to the petitioner without reference to the date when the account is paid. In ascertaining the cost of the goods in inventory, it has been the custom of the petitioner, beginning in 1914, to first price the several items at the invoice prices and then to deduct from the aggregate thereof an allowance for the discounts to which the petitioner has been, or will be, entitled upon payment of the accounts. *2118 This allowance is computed at the proportion which the total discounts actually allowed to the petitioner during the year bears to the total purchases expressed in terms of the invoice prices. The inventory of December 31, 1918, was valued, net, in the amount of $1,599,525.90, after deducting an allowance in the amount of $62,000 for discounts; the inventory of October 31, 1919, was valued, net, at $766,438.12, after deducting an allowance in the amount of $32,000 for discounts; the inventory of October 31, 1920, was valued, net, at $3,232,805.66, after deducing an allowance in the amount of $123,000 for discounts. The average discounts were computed at the following rates: October 31, 1919, 4.058 per cent; October 31, 1920, 3.8125 per cent. With reference to all of the discounts, both receivable and payable, here under consideration, the actual rates ranged on different *469 classes of goods from 2 per cent to 10 per cent. The methods of computing and of allowing for the discounts were adopted many years ago upon the recommendation of the public accountants employed by the petitioner. The same methods of allowing for the discounts were practiced in the returns filed*2119 by the petitioner for the years prior to 1919, and the respondent, after field examinations, has accepted the returns without revision in this respect. It had been the custom of the petitioner, prior to 1919, to keep its accounts and file its returns upon the basis of a calendar year. In 1919, upon the advice of the public accountants, it was determined to change to a fiscal year ending October 31. This change was deemed advisable due to the trade custom of setting the new market prices on November 1, of each year. By closing its year on October 31 the petitioner was enabled to value its inventory as of the same date, thus avoiding the complications incident to a delay of two months subsequent to the basic trade date. The petitioner took inventory and closed its books as of October 31, 1919. At the suggestion of the public accountants the petitioner addressed a letter to the Collector of Internal Revenue at St. Louis on January 2, 1920, requesting permission to file, on January 15, 1920, a return for the 10-month period ended October 31, 1919, but giving no reasons for the change of accounting period. The Collector immediately replied, directing the petitioner to address the*2120 Commissioner at Washington in this regard. Petitioner wrote the Commissioner under date of January 5, 1920, making the same request, but giving no reason for the change of accounting period. Having heard nothing from the Commissioner in reply to this letter, the petitioner filed its return for the 10-month period ended October 31, 1919, on January 14, 1920, and the tax shown on this return was assessed March 11, 1920. However, prior to assessment, the Commissioner had replied to the petitioner under date of January 26, 1920, refusing permission to file the fiscal period return, giving as his reason the regulation that the application should be filed at least 30 days prior to the due date of the proposed return. Thereupon a lengthy correspondence ensued, culminating in an appeal to the Committee on Appeals and Review, but the desired express permission was never received for 1919. The petitioner took inventory and closed its books as of October 31, 1920, and filed, on February 14, 1921, a return for the full fiscal year ended October 31, 1920. Upon the insistence of the respondent the petitioner executed, on January 3, 1923, and filed, amended returns reporting for 1919 on*2121 *470 the calendar year basis, and for 1920 on a basis of the fiscal period of 10 months ended October 31, 1920. The petitioner and the respondent agreed in writing as follows: Nov. 28, 1924. INCOME AND PROFITS TAX WAIVER In pursuance of the provisions of existing Internal Revenue Laws, Trorlicht-Duncker Carpet Co. a taxpayer, of St. Louis, Mo., and the Commissioner of Internal Revenue, hereby consent to extend the period prescribed by law for a determination, assessment, and collection of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the year 1919 under the Revenue Act of 1924, or under prior income, excess-profits, or war-profits tax Acts, or under Section 38 of the Act entitled "An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes," approved August 5, 1909. This waiver is in effect from the date it is signed by the taxpayer and will remain in effect for a period of one year after the expiration of the statutory period of limitation within which assessment of taxes may be made for the year or years mentioned, or the statutory*2122 period of limitation as extended by Section 277(b) of the Revenue Act of 1924, or by any waivers already on file with the Bureau. (Signed) TRORLICHT-DUNCKER CARPET CO., Taxpayer. By C. H. DUNCKER, President. D. H. BLAIR, Commissioner. (Seal) F. C. BIEL, ATTEST: Secretary OCTOBER 21, 1925. In pursuance of the provisions of existing Internal Revenue Laws Trorlicht-Duncker Carpet Company, a taxpayer of 12th and Locusts Streets, St. Louis, Missouri, and the Commissioner of Internal Revenue hereby waive the time prescribed by law for making any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the year (or years) 1919 and period Jan. 1, 1920 to October 31, 1920 under existing revenue acts, or under prior revenue acts. This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1926, and shall then expire except that if a notice of a deficiency in tax is sent to said taxpayer by registered mail before said date and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall*2123 be extended sixty days, or (2) if an appeal is filed with said Board then said date shall be extended by the number of days, between the date of mailing of said notice of deficiency and the date of final decision by said Board. (Signed) TRORLICHT-DUNCKER CARPET COMPANY, By C. H. DUNCKER, Pres. D. H. BLAIR, Commissioner. C A D (Seal) Attested: F. C. BIEL, Secretary. *471 The agreement dated November 28, 1924, was stamped by the distribution center of the Bureau of Internal Revenue on December 12, 1924, and the agreement dated October 21, 1925, was stamped "received" October 24, 1925, by the service division of the Bureau of Internal Revenue. In determining the deficiencies the respondent has computed the tax liabilities upon the basis of a full calendar year for 1919, and of a 10-month fiscal period ended October 31, 1920, making adjustments of net income and invested capital so far as pertient here as follows: for 1919, additions to net income, discount on accounts receivable, $48,000; discount deducted from inventory at the end of the year, $32,000; pro rata transfer of two-twelfths of the net income for the 12 months ended October 31, 1920, $54,940.56; *2124 no adjustment was made by the respondent for 1919 to cover a revision with respect to discount deducted from the inventory at the beginning of the year; for 1920, additions to income, discount on accounts receivable net difference between reserve at beginning and end of year, $1,000; discount deducted from inventory at the end of the year, $123,000; deductions from net income, discount deducted from inventory at beginning of year, $32,000; pro rata adjustment of two-twelfths of the net income for the full 12-month fiscal year ended October 31, 1920, $54,940.56; with reference to invested capital for 1920, additions, reserve for discount on accounts receivable, $48,000; adjustment to bring prior year to a calendar basis, $54,940.56. In computing the deficiencies for 1920, the respondent has determined an amount of $1,343,826.71 invested capital which would be allowable on a basis of a full year of 12 months, and has allowed for the 10-month fiscal period an excess-profits credit in the amount of $92,088.45. The deficiency notice was mailed to the petitioner on July 8, 1926. OPINION. TRUSSELL: The petitioner contends in the first issue that the assessment of the proposed deficiencies*2125 is barred by the statute of limitations. To the contrary, however, the evidence shows that the petitioner and the respondent, through agreements in writing effected as contemplated in sections 278(c) of the Revenue Acts of 1924 and 1926, an extension of the periods of limitation and prior to the expiration of the periods agreed upon the respondent determined the deficiencies and mailed the deficiency letter to the petitioner so that the running of the statute of limitations is stayed by this appeal, see sections 274(a) and 277(b) of the Revenue Act of 1926. In the second issue the petitioner claims that its return for a 10-month period ended October 31, 1919, should be accepted and *472 thereafter a fiscal year ending on October 31, should be regularly recognized. Prior to 1919, the petitioner reported on the calendar year basis. The respondent has computed the tax for 1919 upon the basis of a calendar year and has put the desired change to a fiscal year into effect by a period of 10 months ended October 31, 1920. It appears that the Commissioner never approved the proposed change of accounting period for 1919. The petitioner cites our decision in *2126 , but that case is not in point, where the Commissioner had repeatedly accepted and recognized the change in accounting period and the taxpayer sought to go back and revise the whole procedure. In disposing of this issue adversely to the contention of the petitioner we followed , and , wherein we held that a change of accounting period proposed by a taxpayer must have the approval of the Commissioner. In the third issue the petitioner desires to be allowed to value its accounts receivable in an amount somewhat less than the charges invoices. We are satisfied from the evidence that these discounts effect upon income of discounts which it was understood between the parties would be deductible from the amounts shown upon the invoices. We are satisfied from the evidence that these discounts were not contingent upon cash settlement within some time limit and the issue is not to be confused with those relating to cash discounts. The discounts ranged from 2 per cent to 10 per cent according to different classes of goods. The amounts*2127 reserved upon the books and which the petitioner desires to be considered in determining the tax liabilities resulted from summary average rates applied indiscriminately to the aggregate of the outstanding accounts receivable. We know of no regulation of the Commissioner permitting such a practice with respect to accounts receivable. The proposed method is somewhat analogous to a summary inventorying of accounts receivable. We think there were no insuperable obstacles which prevented a reflection upon the books of any truly net values of sales. However, the actual amounts of the discounts if and when subsequently allowed were reflected in a separate account upon the ledger. The effect of the determination of the respondent has been to allow the deduction of these discounts in the actual amounts and concurrently with their allowance. We think this practice with respect to accounts receivable is preferable for our purposes in this case, and conclude that the revision claimed by the petitioner should not be allowed. In the fourth issue the petitioner desires to be allowed in computing cost to deduct from the value of its inventory at invoice prices allowances for discounts from*2128 the invoice prices. These were not cash discounts dependent upon the contingency of payment, but *473 were trade discounts uniformly allowable to the petitioner. Their deduction in valuing the inventory is permitted, optionally, in Regulations 45, reading as follows: ART. 1582. Valuation of Inventories. - Inventories must be valued at (a) cost or (b) cost or market, as defined in article 1584 as amended, whichever is lower. ART. 1583. Inventories at Cost. - Cost means: (1) In the case of merchandise purchased, the invoice price less trade or other discounts, except strictly cash discounts, approximating a fair interest rate, which may be deducted or not at the option of the taxpayer, provided a consistent course is followed. The question is reduced to the ascertainment of a satisfactory method of accounting for the discount for income tax purposes. The testimony shows that in number the individual items amount to thousands in the inventories of the petitioner, and it is, we think, obvious that an accounting for the exact net cost of every separate item involved a multiplicity of detail which it was not unreasonable to have the petitioner and its accountants*2129 view as impossible of practicable accomplishment. After consideration of the testimony we are satisfied that the method adopted by the petitioner in computing the amount of the discounts is substantially accurate and therefore is satisfactory for the purpose of ascertaining cost. The petitioner cites a number of our decisions: ; ; ; ; ; ; ; ; ; . These are all more or less in point. The deficiencies should be recomputed, giving effect to the allowances for discounts on goods in inventory, as claimed by the petitioner and as deducted in valuing the inventories concerned. The fifth issue is a contention of the petitioner in the alternative, and relates to an obvious*2130 inconsistency on the part of the respondent in computing net income for 1919, in that the inventories at the beginning and end of the year are not valued consistently upon the same basis as of course they should be. Our conclusion in the fourth issue removes this inconsistency. The remaining, the sixth, issue is a question of the proper method to be followed in computing the amount of the excess-profits credit for the 10-month period of 1920. The respondent has first determined an amount of invested capital properly allowable for a full year and has computed an amount of excess profits credit on a basis of 8 per cent of ten-twelfths of this capital. The petitioner claims *474 that the computation of 8 per cent should be based upon the entire invested capital allowable for a full year. In support of its contention the petitioner cites , but that case is not in point, for the reason that the Court there determined a question of construction of the wording of the Revenue Act of 1917 as applied to the wholly different facts of a final return of a dissolved partnership. The Revenue Act of 1918 was not*2131 construed. The pertinent provisions of the Revenue Act of 1918 are as follows: SEC. 326. That the excess-profits credit shall consist of a specific exemption of $3,000 plus an amount equal to 8 per centum of the invested capital for the taxable year. * * * SEC. 326. (5) (6) The invested capital for any period shall be the average invested capital for such period, but in the case of a corporation making a return for a fractional part of a year it shall * * * be the same fractional part of such average invested capital. * * * SEC. 305. That if a tax is computed under this title for a period of less than twelve months, the specific exemption of $3,000, wherever referred to in this title, shall be reduced to an amount which is the same proportion of $3,000 as the number of months in the period is of twelve months. It is apparent that the respondent has complied exactly with the statute. In recomputing the deficiencies the same method of computation should be followed. Judgment will be entered pursuant to Rule 50.