Pacific Flush--Tank Co. v. Commissioner

PACIFIC FLUSH-TANK COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Pacific Flush--Tank Co. v. Commissioner Docket No. 103787. United States Board of Tax Appeals 45 B.T.A. 869; 1941 BTA LEXIS 1056; December 3, 1941, Promulgated *1056 DIVIDENDS PAID CREDIT. - Petitioner, on the accrual basis, issued its notes in December 1937, for salary bonuses and on account of such accrued expense was allowed a deduction from gross income for 1937. In 1938 such notes were paid in full. Held, that petitioner is entitled to a dividends paid credit under section 27(a)(4), Revenue Act of 1938, for the amount used to pay off such notes. Graydon H. Ellis, Esq., for the petitioner. David Altman, Esq., for the respondent. TYSON *869 The petitioner seeks redetermination of a deficiency of $309.49 in income tax for the taxable year ended December 31, 1938, and also a determination that it made an overpayment of $193.01 income tax for that year. Through certain adjustments, not in controversy in this proceeding, the respondent reduced petitioner's net income as reported on its return. The deficiency in controversy results from the respondent's disallowance of $20,100 of a claimed dividends paid credit for 1938 and petitioner assigns error in that part of the respondent's determination. The question presented is whether the respondent, acting pursuant to his regulations pertaining to*1057 section 27(a)(4) of the Revenue Act of 1938, properly disallowed as a dividends paid credit the amount of $20,100 paid during 1938 to retire petitioner's notes which had been *870 issued in that amount in December 1937, and delivered to its employees for additional compensation and, as such, had been properly allowed as an expense deduction from gross income for 1937. The case was submitted upon a stipulation of facts, which we adopt as our findings of fact, but include herein only that portion thereof deemed necessary for decision on the question presented. FINDINGS OF FACT. The petitioner, an Illinois corporation with its principal place of business in Chicago, filed a timely Federal income and excess profits tax return for the calendar year 1938 with the collector of internal revenue for the first district of Illinois. The petitioner kept its books and filed its tax returns on the accrual basis. On December 23, 1937, petitioner's board of directors adopted a resolution voting to certain officers and employees bonuses or additional compensation, totaling $25,255, for services rendered during 1937 and providing for payment thereof on or before December 27, 1937, in*1058 the manner elected by each of them, i.e., in cash or by petitioner's 4 percent note due on or before September 30, 1938. Pursuant to that resolution and the employees' election thereunder, bonuses totaling $5,155 were paid in cash by petitioner before December 31, 1937, and the remainder of the bonuses, amounting to $20,100, were evidenced by petitioner's 4 percent interest bearing notes executed on December 27, 1937, and delivered on the same date to petitioner's employees. All of such notes, totaling $20,100, were payable on or before September 30, 1938, and remained outstanding and unpaid at the close of business on December 31, 1937. The amount of $20,100, evidenced by the above mentioned notes, was accrued on petitioner's books as an expense for 1937, and in its Federal income and excess profits tax return for that year petitioner claimed and was allowed such amount as an ordinary and necessary business expense deduction from gross income. From February 21 to September 30, 1938, the petitioner paid in full the principal amount of $20,100 of the above mentioned notes, plus interest thereon. In its Federal income and excess profits tax return for 1938 petitioner claimed*1059 a dividends paid credit of $42,766, embracing dividends of $17,666 paid in 1938, a loan of $5,000 repaid in 1938, and also, the item here involved of $20,100 salary bonus notes paid in 1938. The respondent's disallowance of the latter item as a dividends paid credit was on the ground that, the amount of $20,100 having been allowed as a deduction from gross income for 1937, the same amount was not allowable *871 as a credit for 1938 within the meaning of section 27(a)(4) of the Revenue Act of 1938 1 and article 27(a)-3 of Regulations 101. 2 *1060 OPINION. TYSON: There is no controversy herein as to the amount of $20,100 used by petitioner to retire its indebtedness in 1938 being reasonable with respect to the size and terms of such indebtedness. The respondent contends that the instant case is specifically covered by the applicable regulations, upon which he relies as the correct construction of section 27(a)(4), supra; that that section contains ambiguities which require interpretation to effectuate the legislative intent; and that, in the absence of statutory language clearly granting a double deduction or tax benefit for the same transaction, it is to be presumed that Congress did not intend to grant a double deduction. Respondent cites Spokane Dry Goods Co.,43 B.T.A. 793 (on appeal to the Ninth Circuit), as controlling here. The petitioner contends that, in using $20,100 during 1938 to pay an indebtedness evidenced by its notes which were in existence at the close of business on December 31, 1937, it thereby met all of the requirements specified for the allowance of a dividends paid credit in such amount pursuant to the broad language of section 27(a)(4), supra, which is unambiguous*1061 and contains no provision that it shall be inoperative in the event the taxpayer is entitled to a deduction of the same amount from gross income. Petitioner also contends that article 27(a)-3 of Regulations 101, supra, creates a rule contrary to the express provision of the statute and is therefore a nullity, and, further, that neither the rule laid down nor the reasoning in Spokane Dry Goods*872 Co., supra, is controlling here because that case involved a different factual situation to which section 27(e) was held to be applicable rather than the section 27(a)(4), here involved. We agree with the contention of petitioner that in using the $20,100 during 1938 to pay its indebtedness evidenced by its notes all the requirements for the allowance of a dividends paid credit under section 27(a)(4), supra, were met. The terms of the statute, as applicable to the facts of this case, are so plain, clear, and unambiguous as to require, in our opinion, no resort to construction in order to ascertain its meaning. However, if it could be said that the application of the literal meaning of the statute leads to results which should be avoided, i.e., the granting*1062 of a double tax benefit, and that therefore the statute should be construed in the light of the purpose and intent of Congress in enacting same, we nevertheless remain of the opinion that the use in 1938 of the $20,100 to discharge petitioner's indebtedness came within the purview of section 27(a)(4), supra. We reach this latter conclusion through a consideration of the legislative history of the statutes relating to the dividends paid credit granted to corporations, as disclosed by the congressional committee reports. Section 27(a)(4) first appeared in the 1938 Act and the prior revenue acts contain no provisions similar thereto. It was inserted in the 1938 Act while that act was being considered by the Joint Conference of the Senate and House Committees. The committee reports show that the 1938 Act, as finally agreed upon, retained the principle of the undistributed profits tax provided for in the 1936 Act. Report No. 1860 of the committee of Ways and Means of the House of Representatives, 75th Cong., 3d sess., with reference to the dividends paid credit provided for in section 27 of the 1938 Act, stated that the dividends paid credit "is usable by a corporation to*1063 diminish its tax wherever the determination of the tax is affected by the amount of dividends distributed" [p. 21]. The report further stated that "the committee believes that the tax should not be framed as a penalty surtax on undistributed profits but should be designed on the basis of a flat tax rate with a tax credit which will give reasonable encouragement to the distribution of dividends" [p. 4]; that, "In order to encourage the distribution of dividends, it is planned to allow a credit" of a certain percent of dividends, paid out against the maximum flat tax rate qmposed; and that "This credit is so designed as to produce a minimum tax * * * when there is complete distribution." [P. 5.] From these committee reports it clearly appears that the broad general purpose underlying the enactment of section 27 of the 1938 *873 Act as to dividends paid credits was to induce and encourage the distributions of dividends by a corporation to its shareholders, which would result in a diminution of the corporation's tax and the imposition of a tax on such dividends in the hands of the stockholders. We are of the opinion that in connection with effectuating such purpose Congress, *1064 in enacting section 27(a)(4), supra, intended to give relief to corporations by way of a dividends paid credit for the amount paid out for the retirement of indebtedness as therein specified, which amounts thus became unavailable for dividends; and this is true even if the tax benefit of the credit so given may be duplicated, as here, in whole or in part, by another tax benefit through the allowance of a deduction from gross income in a former year on account of the accrual of such amount as a deductible business expense. Furthermore, as another indication that the purpose and intention of Congress in enacting section 27(a)(4) was to allow a credit for the amount used to pay off notes, as was done here, even though the amount represented by such notes arose out of a transaction entitling petitioner to take a deduction therefor, it is to be observed that Congress excepted from the benefit of the credit only the deduction allowable by statute for interest, and it refrained from excepting any of the other deductions from gross income (such as the numerous types of business expenses, one of which is here involved) allowed by the revenue statutes which, under many conceivable*1065 circumstances, might become represented by notes. This would make applicable the doctrine of Expressio unius est exclusio alterius. We conclude that, even if the allowance of the credit claimed here would result in duplicating, in whole or in part, a tax benefit to the petitioner, it nevertheless appears clear that Congress intended to and did expressly grant such credit. We further conclude that the above quoted portion of article 27(a)-3 of Regulations 101 is contrary to the statute and is therefore a nullity as applied to the facts of this case. Spokane Dry Goods Co., supra, is not controlling here, as contended by respondent, for it involved entirely different factual circumstances which brought into operation the specific provisions of section 27(e) of the 1938 Act dealing with dividends paid in obligations of the corporation. There, the taxpayer, on the accrual basis, declared a dividend in 1936 payable in cash or, at the option of its shareholders, in the notes of the corporation. A portion of such dividend was paid with the taxpayer's notes, the total amount of which (having an actual value equal to their face value) was taken as a dividends*1066 paid credit for 1936. In 1938, the taxable year involved, the taxpayer paid the principal amount of some of those dividend notes and claimed a dividends paid credit, under section 27(a)(4) of the 1938 Act, for the *874 amount so paid out in redemption of the notes. The Board, in applying section 27(e), supra, denied the claim of the taxpayer because the facts showed that there was no excess in the amount paid by the taxpayer in the taxable year 1938 in redemption of its dividend notes over the fair market value of those notes at the time of their delivery in 1936 in payment of the dividend. That case, being controlled by section 27(e) which deals specifically with the redemption of obligations used in payment of dividends, is distinguished from the case here which is controlled by section 27(a)(4) without any relation to section 27(e). The observations of the Board with regard to a double deduction contained in the last paragraph of its opinion, if made with reference to section 27(a)(4), were so made through consideration of that subdivision in connection with, and as cumulative to, the effect of section 27(e). The respondent erred in his determination. Reviewed*1067 by the Board. Decision will be entered under Rule 50. HILL concurs only in the result. DISNEY and HARRON dissent. Footnotes 1. SEC. 27. CORPORATION DIVIDENDS PAID CREDIT. (a) DEFINITION IN GENERAL. - As used in this title with respect to any taxable year the term "dividends paid credit" means the sum of: (1) * * * [Dividends paid in taxable year.] (2) * * * [Dividend carry-over from two preceding years.] (3) * * * [Operating deficit of preceding year.] (4) Amounts used or irrevocably set aside to pay or to retire indebtedness of any kind, if such amounts are reasonable with respect to the size and terms of such indebtedness. As used in this paragraph the term "indebtedness" means only an indebtedness of the corporation existing at the close of business on December 31, 1937, and evidenced by a bond, note, debenture, certificate of indebtedness, mortgage, or deed of trust, issued by the corporation and in existence at the close of business on December 31, 1937, or by a bill of exchange accepted by the corporation prior to, and in existence at, the close of business on such date. Where to indebtedness is for a principal sum, with interest, no credit shall be allowed under this paragraph for amounts used or set aside to pay such interest. A renewal (however evidenced) of an indebtedness shall be considered an indebtedness. [As amended by section 222 of the Revenue Act of 1939, which inserted the last sentence.] ↩ 2. * * * No credit may be allowed under section 27(a)(4) for amounts used or irrevocably set aside to pay or retire indebtedness which represents an item which is allowable as a deduction from gross income, either for the same year or a different year. * * * [The amendment of this article by T.D. 4948, 1939-2 C.B. 88↩, did not change the above quoted language.]