Russell Milling Co. v. Commissioner

*195OPINION.

The taxpayer’s first contention is that it should be allowed to deduct, as accrued at December 31, 1916, one-half of the income and excess-profits taxes imposed by the ftevenue Act of 1917 for the portion of its fiscal year 1917 within the calendar year 1917. The theory upon which it bases this claim is that as it kept its accounts upon an accrual basis, and the 1916 Act permitted a deduction for all taxes for the calendar year 1916 or a fiscal year following thereafter, and as it was subjected to excess-profits taxes under the Act of 1917 upon the whole net income for the fiscal year, reduced to as many twelfths as there were months in its fiscal year 1917 falling within the calendar year 1917, and for income tax upon the same proportion after reducing the income by the excess-profits tax com*196puted under Title II of that act, in addition to the 2 per cent tax imposed by the Act of 1916 upon the entire net income for the year, after making the deduction for excess-profits taxes; and as income taxes accrue proportionately with the income occasioning the income tax, that one-half the income and excess-profits taxes for the portion of the fiscal year 1917 within the calendar year 1917 accrued in that portion of the fiscal year 1917 prior to December 81,1916. The Commissioner allowed as a deduction one-half the tax computed under the Revenue Act of 1916, and declined to allow as a deduction any part of the tax imposed by the Revenue Act of 1917.

The Commissioner was clearly right in refusing to allow as a deduction any portion of the income and excess-profits taxes imposed by the Revenue Act of 1917. Section 1207 of that Act amended paragraph 4 of subdivision (a) of section 12 of the Revenue Act of 1916 so as to except from deduction income and excess-profits taxes imposed by authority of the United States for the year 1917. Nor could the taxpaper accrue as at December 31, 1916, any part of such taxes, for the reason that no part of the tax was then due. The theory that income taxes accrue proportionately with the income occasioning the income tax, even if it were sound, would not warrant the deduction claimed.

The next point presented by the taxpayer is his claimed right to deduct in the fiscal year 19Í7 State, county, and municipal taxes paid in December, 1916, for the year 1916, and one-half the taxes of the same character for the year 1917, accrued at June 30, 1917.

Section 200 of the General Statutes of Kansas, 1914 edition, provides that all taxes shall be due on the 1st day of November in each year. The taxes are payable on or before December 20, or at the option of the taxpayer in two installments — one on or before December 20 and the other on or before June 20 of the following year. The State, etc., taxes for the year 1916 were actually paid in full in December, 1916. The Commissioner allowed as a deduction for the fiscal year 1917 one-half the 1916 taxes paid in full in December, 1916, and in taxpayer’s said fiscal year and permitted it to accrue State, etc., taxes for the year 1917 to June 30, 1917, but denied the right to deduct the other half of the 1916 taxes. By this procedure the taxpayer has failed to obtain as a deduction one-half the taxes paid for the year 1916 within its fiscal year 1917. We think the Commissioner erred twice in this decision— first, in refusing to allow as a deduction for the taxpayer’s fiscal year 1917 the entire amount of taxes paid in December, 1916, for that year, and second, in permitting the taxpayer to accrue as at June 30, 1917, one-half the taxes which later became due for the year 1917. It is not necessary to enter into a discussion of when taxes are accrued further than to say that they can not be accrued until they become due, and as within the taxpayer’s jurisdiction they are not due until November 1, no part is accrued prior to that time. We are of opinion that the entire 1916 State, county, and municipal taxes paid in December, 1916, should be allowed as a deduction in computing taxpayer’s net income for its fiscal year ended June 30, 1917, and that no part of the 1917 State, etc., taxes is properly accruable or deductible in that fiscal year.

The taxpayer contends that the Commissioner erred in reducing its invested capital by the sum of $3,772.89 by reason of additional de*197preciation accumulated by a revenue agent over a period of 10 years prior to June 30,, 1916. The facts show that the taxpayer had a reserve for depreciation on its books at June 30, 1916, in the amount of $20,0001 that in auditing its books the agent computed a reserve for depreciation from the beginning of the corporation to that date of $23,772.89, and that its invested capital was reduced by the difference between the two amounts. It further appears that the taxpayer had not in the prior years deducted depreciation at constant rates but had adopted the policy of deducting depreciation as the profits of the business appeared to warrant. No depreciation was taken in some years and in others a large amount was taken. There is no evidence before us that the depreciation taken by the taxpayer did not represent the actual depreciation sustained or that the theoretical depreciation computed by the revenue agent more nearly showed the actual value of the assets.

In view of the fact that there was a difference of only $3,772.89 over a 10-year period between the taxpayer and the agent, it is only fair to assume that the taxpayer was more familiar with the actual condition of its business and more competent to judge of the amount of the depreciation of its assets than the revenue agent who arrived at the amount by applying a rule of theoretical depreciation; further, no allowance was made for replacements in the prior years, and in the circumstances we are not disposed to disturb the depreciation set up by the taxpayer. Before taking such action evidence must be submitted showing clearly that the depreciation actually sustained had not been written off during the period in question.

The last claim of taxpayer relates to a reduction of invested capital for the fiscal year 1918 by $659.80 due to a deduction of interest paid in the fiscal year 1917 in excess of the limitation for interest bearing indebtedness permitted by law- Through error this amount was deducted in computing invested capital for the year 1918. As the Commissioner has admitted error as to this item, the amount will be restored to invested capital for the fiscal year 1918.