Denver Rock Drill Mfg. Co. v. United States

LITTLETON, Judge. Plaintiff sues to recover $18,455.81, being the difference between the income and profits tax paid for the fiscal years ending March 31, 1914 to 1918, inclusive, and for the fiscal years 1920 and 1921, and the tax computed for those years on the basis of adequate deductions from gross income for depreciation of properties used in its business. It bases its right to recover these overpayments upon the provisions of section 284 (c) of the Revenue Aet of 1926 (26 USCA § 1065 (c), which provides that under certain circumstances overpayments resulting from the failure to take adequate deductions in prior years shall be refunded or credited without the filing of a claim therefor and regardless of the expiration of the five-year limitation period for the making of refunds without a claim. The defendant demurs to the petition on the grounds, first, that it does not set forth a cause of action against the United States, and, second, that it does not set forth a cause of action within the jurisdiction of this court. It is contended in support of the demurrer, first, that under section 3226, Rev. St., as amended (26 USCA § 156), there exists .no right to maintain a suit for the recovery of a tax unless a timely claim for refund therefor has been filed, and that section 3228, Rev. St., as amended by section 619 (e) of the Revenue Aet of 1928 (26 USCA § 157), provides that claims for refund must be presented to the commissioner within four years next after the payment of the tax; and, second, that even if plaintiff is entitled to maintain this suit, it is not entitled to recover the over-payments for the fiscal years ending March 31, 1914 to 1921, inclusive, for the reason that it reported no taxable income and paid no tax for the fiscal year ending March 31, 1922, and the Commissioner of Internal Revenue in his determination, in March, 1927, with respect to the fiscal years ending March 31,1922 to 1926, inclusive, determined no additional tax for the fiscal year ending March [835] 31, 1922, nine months of which constituted the last exeess-profits-tax period under the statute, and therefore did not decrease invested capital lor this fiscal year -within the meaning of section 284. (e). riaintiil duly filed income-tax returns for the fiscal years ending March 31, 1914 to 1916, inclusive, and income, excess-profits, and war-profits tax returns for the years ending March 31, 1917 to 1921, inclusive, and paid the taxes shown thereon to be due. The various revenue acts applicable to the calendar years 1917 to 1921, inclusive, imposed excess profits taxes, the computation of which necessitated the determination of invested capital as defined by the statutes, inasmuch as the excess-profits tax was computed on the earnings for each taxable year in excess of a fair return on the invested capital. March 17,1923, the revenue agent made a report of his investigation of plaintiff’s returns for the fiscal years ending March 31, 3914 to 1921, inclusive, recommending depreciation adjustments which decreased plaintiff’s invested capital. Tho commissioner approved tho revenue agent’s recommendation, and on October 15, 1923, notified it of his determination of overpayments for the fiscal years ending in 1914 to 1919, inclusive, and a deficiency for 1920, as follows: The coimuiuHionor refunded or credited to file plantin' the above-mentioned overpay-ments. The revenue agent’s report of March 17, 1923, and the determination of the commissioner, did not properly compute pLiinlif'f’s correct tax liability for the years in question for the reason that the depreciation adjustments made wore less than the deductions to which the plaintiff was entitled under the statutes. March 23, .1927, a revenue agent made a report of his investigation of: plaintiff’s returns for the fiscal years ending March 31, 1922 to 1926, inclusive, in which he recommended an additional tax for the fiscal years ending March 31, 1923 to 1926, inclusive, of $17,528.97. Plaintiff reported a loss for the fiscal year 1922 and paid no income or excess-profits tax for that year. The revenue agent likewise determined a loss for the fiscal year 1922. The commissioner approved the report and audit of the revenue agent and assessed the additional tax of $17,528.97 for the fiscal years ending March 31, .1923 to 1926, inclusive, together with interest of $4,996.83, which was paid October 24, 1927. The commissioner, in his audit in 1927, recomputed the allowable deductions for depreciation for tho fiscal years ending March 31, L914 to 1922, inclusive, and determined that the allowable deductions for depreciation for the fiscal years ending March 31, 1914 to 1918, inclusive, and 1920 to 1922, inclusive, were in excess of those taken by the plaintiff in the returns tiled and those allowed by the commissioner in his determination in 1923, in the following amounts: The above-mentioned depreciation adjustments reflect the proper depreciation allowable under the statutes for the years mentioned. Such adjustments also decreased plaintiff’s invested capital for the fiscal years 1917 to 1921, inclusive. Inasmuch as plaintiff incurred a loss for the fiscal year ending March 31, 1922, nine months of which fell in the excess-profits tax year of 1921, tho failure of the taxpayer to take adequate deductions for depreciation in prior years had no effect upon plaintiff’s income or excess-profits tax liability for said fiscal year ending March 31, 1922. A computation of the income tax and the excess-profits and war-profits tax for the fiscal years ending March 31, 1914 to 1918, inclusive, and the fiscal years ending March 31, 1920 and 1921, on the basis of adequate deductions for depreciation allowable under the statutes for such years, shows overpay-ments totaling $18,455.81, as follows: Ki:;- ■:) year ended Mar. SI— Amount 1914 ......... $4.52 1616 ............................................. 262.00 1917 ......... 999.47 1918 ............................................. 8,261.92 1920 ............................................. 7,913.18 1921 ............................................. 984.72 [836] September 21, 1928, plaintiff filed claims for refund of the amounts above mentioned on the ground that such overpayments should be refunded under, section 252 of Revenue Act 1921 (42 Stat. 268), section 281 of 1924 (26 USCA § 1065 note), and section 284 of 1926, 26 USCA § 1065 and note. December 21, 1928, the commissioner disallowed these claims and notified the plaintiff that, “The rejection of these claims will appear officially in the next schedule to be approved by the commissioner.” Plaintiff requested a reconsideration of the claims, and on October 21, 1929, the commissioner advised it that no furlher consideration would be given to the ease. In the circumstances of this case we are of opinion that plaintiff is not entitled to recover the overpayments for the fiscal years ending March 31, 1914 to 1921, inclusive. The manifest intent and purpose of section 284 (c) of the Revenue Act of 1926 and similar provisions of prior revenue acts were to authorize a refund for prior years only when the taxpayer is called upon to pay a greater excess-profits tax for the year under consideration than he would be required to pay if no adjustments of deductions taken in prior years were made. The amount of the profits tax payable in any of the excess-profits tax years is dependent upon the amount of invested capital. When the invested capital for any year is decreased for any reason, the profits-tax liability is. correspondingly increased. The deductions for depreciation taken by the taxpayer from gross income from year to year reduce the amount of invested capital to be used in determining the profits-tax liability. The depreciation reserve charged against invested capital by the taxpayer in making its return for each year is ordjnarily the aggregate of the deductions taken from gross income in prior years. When, therefore, the commissioner, in making an audit of the tax liability for a particular year, makes adjustments and increases the deductions taken in prior years and increases the amount chargeable against invested capital for the year under consideration, the profits-tax liability for the last-mentioned year is increased. The taxpayer is therefore required to pay a larger tax 'for the year under consideration in which invested capital is decreased than he would be called lipón to pay if such adjustments were not made. At the same time, due to the bar of the statute of limitation, the overpayments for prior years resulting from the increase in the deductions taken could not be refunded but for some special provision in the statute. In these circumstances Congress enacted the section providing that in the ease of such decrease in invested capital any overpayments for prior years resulting from failure of the taxpayer to take adequate deductions from gross income should be refunded without the filing of a claim, and notwithstanding the expiration of the statute of limitation. We think section 284 (e) was not intended to apply if, for the year under consideration, the commissioner determines that the taxpayer instead of having a net income sustained a loss. In such ease invested capital is not important and there is no decrease of invented capital within the meaning of the statute. The amount of depreciation reserve existing in any year has no effect upon the amount of a net loss which may, under certain circumstances, be deducted in a subsequent year. The situation presented in this case is the same as if the taxpayer had taken certain deductions from gross income for depreciation in all of the excess-profits tax years from 1917 to December 31, 1921, inclusive, and the. commissioner, in the audit of the tax liability for taxable years subsequent thereto, for which no profits tax was imposed, should determine that the annual deduction for depreciation should be greater than had been taken in prior years. In such a ease the taxpayer would not be entitled under seetjon 284 (e) to a refund for prior-years on the ground that it had failed to take adequate deductions for depreciation. In this case the plaintiff made its returns and paid its income and profits tax on the basis of the deductions taken thereon for the fiscal years ending March 31, 1914 to 1921, inclusive. In March, 1923, the commissioner made an audit of the fiscal years ending March 31, 1921, and prior years. In this audit he made adjustments in the plaintiff’s depreciation account and increased the deductions taken by the plaintiff for the fiscal years 1914 to 1921, inclusive, and refunded or credited the over-payments for prior years based upon the depreciation adjustments made. The depreciation deductions determined by the commissioner October 15, 1923, for the fiscal years 1914 to 1921, inclusive, were less than the deductions allowable under the statutes; but this suit is not predicated upon that determination. If it were, it could not be main-, tained, inasmuch as the petition was not filed until more than six years after October 15, 1923. The plaintiff is therefore in position of having paid income and profits taxes for the fiscal years ending March 31, 1914, to March 31, 1922, inclusive, on the basis of the net income, invested capital, and the deductions claimed by it and allowed by the commis- [837] sioner. The fad that die deduction taken and allowed in each of these years was less than that allowable under tho statutes does not alone entitle plain!ill to a refund for the fiscal years ending March 31, 191-1 to 1921, inclusive. The situation contemplated by section 284 (c), which will give the taxpayer a light to a re iuud for prior years, is a decrease of invested capital for the year under audit, which increases the profits tax for that year. When such decrease of invested capital and increase of the tax which would otherwise be payable results from an inervase ot deductions from income taken by the taxpayer in preceding years, it is apparent that, if other questions do- not enter into tho computation of the income and the tax, an overpayment will be shown in the years prior to the year under consideration, if the increased deductions are given effect in prior years. In these circumstances Congress considered that, from the standpoint of abstract justice, the taxpayer should receive the return of the excess tax paid for the previous years in so far as such excess resulted from the increase of deductions taken in those years, if ho should be called upon to pay an increased tax brought about by the action of the commissioner in increasing the deductions taken in previous years and decreasing the invested capital for the year under consideration. In Ihe absence of section 284 (c) the relurn of the overpayments would be impossible by reason of the expiration of the statute of limitation. “To remedy this injustice of increasing Ihe taxpayer’s taxes on account of his mistakes in accounting without gyving him the benefit of the sums already received by reason of those mistakes, the provision in question was enacted.” Southwestern Oil & Gas Co. v. United States (D. C.) 29 F.(2d) 404, 407; Id. (C. C. A.) 34 F.(2d) 446. In view of our conclusion that the plaintiff is not entitled to recover upon the merits, it is not necessary to discuss the contention of the defendant that a suit may not be maintained to recover overpayments under section 284 (e) of the Revenue Act of 1926, 26 USCA § 4065 (e) unless the taxpayer filed a claim for refund within the time prescribed by sections 3228 and 3826, R. S., as amended (26 USCA §§ 157 and 156). The demurrer is sustained, and the petition is dismissed. It is so ordered. BOOTH', Chief Justice, and WILLIAMS and GREEN, Judges, concur.