Tobin Packing Co. v. Commissioner

THE TOBIN PACKING CO., INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Tobin Packing Co. v. Commissioner Docket No. 99483. United States Board of Tax Appeals 43 B.T.A. 642; 1941 BTA LEXIS 1476; February 14, 1941, Promulgated *1476 In 1935 the petitioner, a processor of hogs, accrued its liability for processing taxes imposed under the Agricultural Adjustment Act. In May 1935 it retained attorneys to contest the constitutionality of the act, agreeing to pay them a certain percentage of the taxes saved if and when the tax was held invalid. After the tax was held invalid on January 6, 1936, petitioner eliminated from its deductions the unpaid processing taxes for 1935 but accrued its obligation to pay the attorneys' fees and claimed a deduction therefor as expenses in its return for 1935. Held, the respondent erred in disallowing the deduction. Clement J. Clarke, Jr., Esq., for the petitioner. William V. Crosswhite, Esq., for the respondent. TURNER *642 The respondent determined deficiencies in income tax and excess profits tax for 1935 in the respective amounts of $5,998.46 and $2,181.26. The only question presented is whether petitioner is entitled to deduct from gross income for the year 1935 a liability for attorneys' fees in the amount of $34,360.91 incurred in donnection with its contest of the validity of the taxes imposed under the Agricultural Adjustment*1477 Act. The case was submitted upon a written stipulation of facts, together with several exhibits attached. FINDINGS OF FACT. Petitioner is an Iowa corporation, with its principal place of business at Fort Dodge, Iowa. It filed its income tax return for 1935 with the collector of internal revenue for the district of Iowa. It keeps its books and files its returns on the accrual basis. Since December 1934 the petitioner has been engaged in the business of processing hogs. The Agricultural Adjustment Act, P.L. No. 10 of the Seventy-third Congress, provided for the imposition of a processing tax on a number of products, including hogs. On or about May 14, 1935, petitioner, together with others, entered into a contract *643 with Humbert B. Powell and George Wharton Pepper, attorneys at law, to represent them in contesting the constitutionality of the Agricultural Adjustment Act in so far as it related to the imposition of processing and floor stock taxes on hogs. Under the terms of the contract petitioner agreed to pay the attorneys a portion, not to exceed $3,000, of a retainer fee of $20,000, and in addition a certain percentage of all processing and floor taxes which*1478 might be saved by it from May 1, 1935, until the final decision of the Supreme Court of the United States, to wit: "5% on the first million dollars, or fraction thereof saved the undersigned; 4% on the second million dollars; 3% on the third million dollars * * *." In June 1935 the petitioner filed a bill of complaint in the United States District Court for the Northern District of Iowa, praying for relief from the said processing taxes and naming as defendant Charles D. Hudson, individually and as collector of internal revenue for the State of Iowa. On January 6, 1936, the Supreme Court of the United States handed down its decision in , holding that the Agricultural Adjustment Act, in so far as pertinent here, was unconstitutional. As a result of that decision the District Court on February 3, 1936, entered a decree in favor of the petitioner, permanently enjoining the defendant, Charles D. Hudson, from collecting any further taxes from the petitioner under the Agricultural Adjustment Act. The foregoing decree relieved petitioner from paying $1,092,245.04 as processing taxes which had been imposed under the Agricultural*1479 Adjustment Act. Of this amount $1,067,259.70 was imposed for the year 1935 and accrued by petitioner as a liability in that year. The balance was attributable to the year 1936. After the decree the accrual of the said $1,067,250.70 was eliminated by the petitioner from deductions in determining net income for the year 1935. The respondent did not disturb the elimination of the aforesaid unpaid processing taxes from the income tax deductions for said year. Under the terms of the contract between petitioner and the attorneys above referred to, the petitioner, on May 15, 1935, paid to the attorneys as a retainer fee and deposit on account of costs the amount of $1,500. A further amount of $35,459.49 was paid to the attorneys on February 7, 1936, of which amount the sum of $34,360.91 related to the aforesaid $1,067,259.70 of processing taxes for 1935. In its income tax return for 1935 the petitioner deducted the attorneys' fees of $34,360.91 as an accrued expense. The respondent disallowed the deduction, stating in the notice of deficiency that the "amount set up as accrued expenses is disallowed as the decisive event establishing the liability did not occur until 1936." *1480 *644 OPINION. TURNER: The petitioner's first contention is that a definite and fixed liability in the amount of $34,360.91 accrued in the year 1935. It argues on brief as follows: * * * The contract agreed upon provided that the Attorneys should get a percentage of the processing taxes which the petitioner was saved. The effect of this contract was that if the petitioner's Attorneys were successful, a portion of the processing taxes would go to the Attorneys instead of the Government. From the first million dollars of processing taxes saved after the execution of the contract, the Attorneys were to receive 5%. The payment of this 5% was a definite and fixed liability of the petitioner, and so far as this 5% was concerned the petitioner was in the position of a stakeholder waiting to see which of two claimants should receive the money. The only contingency, from the standpoint of the petitioner, was as to the other 95% of the processing taxes. Regardless of what happened, the petitioner had a definite fixed liability for 5% of the processing taxes which it was incurring by the processing. This liability was complete at all times and did not depend on some future*1481 event. Therefore, the petitioner argues, the attorneys' fees paid in 1936 are deductible in 1935, under the doctrine enunciated by the Supreme Court in . The petitioner's second contention is that in order to clearly reflect income this liability must be deducted in 1935, citing section 34 of the Revenue Act of 1934. On brief the respondent simply contends that in 1935 the petitioner was under no "enforcible liability" to pay the attorneys' fees, advancing no agrument or discussion relative to petitioner's alternative liability for processing taxes. He also argues that section 43 of the Revenue Act of 1934 does not permit the deduction in 1935. We think the respondent erred in disallowing the deduction. It must be conceded that at the end of 1935 the petitioner had incurred a liability for at least the amount of the deduction claimed. It was not known at that time whether it would be paid out as taxes to the Government or as expenses to the attorneys, but in either event it would have been a deductible item. At the end of 1935 all the events had occurred fixing the amount of a definite liability and the contingency*1482 settled by the decision of the Supreme Court was that the amount was to be paid to the attorneys instead of the Government. Up to the amount involved here the petitioner's economic position was not and could not have been changed by the decision of the Supreme Court and we do not think the deduction should be denied merely because the obligee could not be identified at the end of the year. To allow the deduction in 1935 clearly reflects income. Moreover, we do not think this case can be satisfactorily distinguished from . There a cotton processor in 1935 accrued its liability for processing taxes and contracted to readjust its sale price to relieve its vendees of so much *645 as represented the passing on of the processing tax if and when the tax was held invalid. After the tax was held invalid on January 6, 1936, it canceled the accrual of 1935 taxes and substituted the amount of its contractual liability to its vendees and claimed deductions in its 1935 return for such contractual liability. We held the deduction was proper, stating that "an accrual of either income or outgo which is clearly in doubt may, and*1483 often should, be adjusted when shortly thereafter in the next year the doubt is removed." That doctrine is equally applicable to the facts of the present case. Cf. , and . Another issue raised in the petition has been disposed of in the written stipulation of facts as follows: Counsel for respondent stipulates that the processing taxes disallowed in the amount of $9,264.20 in the deficiency letter shall now be allowed as a deduction in the said amount of $9,264.20. This stipulation is in consideration of an agreement executed this 13th day of May, 1940 by the petitioner that the petitioner shall include in gross income in income tax returns under existing income and profits tax acts or corresponding provisions of future income and profits tax acts, for the year or years received or accrued, depending upon the method of accounting employed, any and all sums paid as taxes under the provisions of the Agricultural Adjustment Act subsequently refunded or credited. Decision will be entered under Rule 50.