Mills v. United States

delivered the opinion of. the court:

Plaintiff sues to recover $1,082.63, plus interest, claiming that such amount represents interest , illegally collected and retained on an apparent, but not real, excess profits tax deficiency of $3,083.11 for 1941, which deficiency was refunded with $1,271.81 additional principal after application of section 722 of the Internal Revenue Code. (54 Stat. 986, as amended, 26 U. S. C. 722 (Supp. IY, 1940 Ed.), repealed by Act of November 8,1945,59 Stat. 568.) It is plaintiff’s position that it is entitled to the refund of interest as well as the principal. The facts as stipulated by the parties are summarized below.

Plaintiff filed its excess profits tax return for 1941 on March 15, 1942, showing an average base period net income of $66,051.23, computed without regard to section 722, which produced a credit against taxable income of $62,748.07, with a . resulting excess profits tax liability of $95,102.03. This amount was paid in four installments during 1942.

An application for determination of its profits tax under section 722 of the Internal Revenue Code was filed by the taxpayer on June 24, 1943, claiming a constructive average base period net income of $143,354.09. On July 27, 1945, plaintiff was informed by Revenue officials in the field that it was proposed to reject the claim for the determination of the tax under section 722, and to assert a deficiency in excess profits tax for 1941 in the amount of $3,562.13. After conferences between plaintiff and defendant, the plaintiff requested the defendant to refer the entire matter to the Technical Staff, Atlantic Division, Bureau of Internal Revenue. Plaintiff was advised on September 26,1946, that jurisdiction for handling determinations under section 722 was under the Excess Profits Tax Council which had been formed in April 1946, and its section 722 claim was accordingly returned to the Excess Profits Tax Council.

.. The Technical Staff, however, continued, consideration of the proposed standard issues1 deficiency and eventually determined. a standard issues deficiency of- $3,083.11. On De-*637céínber 23, 1947, plaintiff filed an “Offer of Waiver. of Restriction on Assessments and Collection of Deficiency Tax” onthat amount, specifically reserving its rights under section 722, because there was no ground for contesting that deficiency until the Excess Profits Tax Council rendered its decision on the section 722 claim.

On January 20, 1948, the Excess Profits Tax Council de-cidéd the plaintiff’s case and reached the conclusion that the taxpayer qualified in every way for relief under section 722 (b) (4) of the Internal Revenue Code, arid accordingly the Council granted a constructive average base period net income of $75,219.48, which produced a credit thereunder of $71,458.51. The plaintiff’s tax liability resulting therefrom was a deficiency in income tax of $1,350.02 and an overpayment of excess profits tax of $4,354.92. Plaintiff was notified of this by letter dated March 11,1948.

In the meantime, on February 27,1948, the standard issues deficiency of $3,083.11, referred to, supra, together with interest computed thereon of $1,082.63, was assessed against the taxpayer. Both of these sums were paid on March 11,1948,-the same date of the letter from the Revenue Agent in charge advising plaintiff of the January 20, 1948, decision of the Excess Profits Tax Council, and that the determination of its excess profits tax after the application of section 722 resulted in an overpayment of excess profits tax in the sum of $4,354.92 and a deficiency in income tax of $1,350.02.

. Following the filing on March 29,1948, of a waiver of restrictions on assessments and collections of the deficiency in tax and acceptance of the overpayment by plaintiff, the Commissioner issued a formal notice to plaintiff on April 29,. 1948, advising it of the overpayment of $4,354.92.

■ This overpayment of $4,354.92 was thereafter refunded or credited to plaintiff but the Commissioner did not refund the interest of $1,082.63 paid in connection with the February 27,1948, assessment referred to above. Plaintiff’s claim for this amount was denied and it is for this amount that suit is brought here.-

, The arguments advanced by. defendant in support of the Commissioner’s action regarding the $1,082.63 collected and retained as interest here, are substantially the same as those *638urged in Koppers Company, Inc. v. United States, 126 C. Cls. 847, cert. granted May 17, 1954. While it is true that in Koppers Company, Inc., supra, there had been no assessment nor payment of the potential standard issues deficiency, for reasons which appear below, we do not believe that there is any substantial factual or legal divergence sufficient to warrant a different result here.

The parties have stipulated that the Excess Profits Tax Council decided on January 20, 1948, that plaintiff was entitled, under section 722, to a constructive average base period net income of $75,219.48, rather than the $66,051.23 shown in the original return; and that when this constructive average base net income was employed in the determination of the tax as required by the statute, plaintiff had overpaid its excess profits tax by $4,354.92. Implicit in this decision of the Excess Profits Tax Council of January 20, 1948, is a finding that the use of the average base period net income “* * * [resulted] in an excessive and discriminatory tax * * *” and that the taxpayer had “* * * [established] what would be a fair and just amount representing normal earnings * * 2 Under such circumstances section 722 of the Code expressly requires that:

* * * the tax shall be determined by using such constructive average base period net income in lieu of the average base period net income otherwise determined under this subchapter. [Emphasis supplied.]

The only pertinent factual difference between this case and the Koppers case, supra, is that the Commissioner formally assessed and collected a standard issues deficiency, even though the Excess Profits Tax Council had already decided that section 722 was applicable and that plaintiff was entitled to a constructive average base period net income sufficient to give it an excess profits tax credit which completely eliminated the “potential” deficiency. It seems clear from the stipulated facts in the instant case that the assessment and payment of the “potential” deficiency on which the interest here in question was collected, occurred, without protest, merely because the standard issues determination *639and that of section 722 applicability were- administratively separate. We do not believe that such accidental and wholly fortuitous circumstances warrant distinguishing the Hoppers case, supra, from this case. Accordingly, we hold that Koppers Company, Inc. v. United States, supra, is applicable and controlling in this case. In view of the Hoppers decision and rationale it is unnecessary to answer defendant’s con-tentiqns in detail. In that case we said, .beginning on page 854:

It [section 722] affords an alternative formula for determining the amount to be exacted when the economic facts of a particular corporation will not fit properly into the “average base period net income” mechanism. The result sought is a fair and equitable tax in lieu of, not in mitigation of, an excessive and discriminatory one. It follows therefore that where the factual and procedural requirements of Section 722 have been met, the Commissioner must take cognizance of that section in “determining” a “deficiency,” as those terms are used in Sections 292 (a) and 271.3 In so doing the constructive average base period net income must of necessity be used in arriving at the basis on which interest is computed as for the determination and assessment of the tax itself. Once Section 722 is, on the facts established, brought to bear on an appropriate situation it is an integral part of the applicable tax law and cannot be employed eclectically by the Commissioner of Internal Revenue. * * *

We believe that section 722 was designed so as not to exact from those corporations that qualify thereunder more than the true tax based upon a fair standard of normal profits. The tax was to be determined on the well-established annual basis concept which requires the tax to be predicated upon the facts in existence and economic events occurring in the particular taxable year. Therefore, when applicable, section 722 is in reality an alternative means of determining the excess profits tax due for the year. The whole section was designed to collect the correct and fair tax that was due for the year based upon the facts in existence in that year. Because of administrative difficulties it was infeasible, if not impossible, to actually decide during, the particular year, *640whether section 722 was applicable. Consequently, solely, because of this administrative difficulty the decision on the-applicability of - section 722. was postponed. However, the economic events'.giving rise to tax incidents occuring in-subsequent taxable .years are riot considered in deciding whether or not. section. 722 is applicable or in arriving at the, correct tax for the year. . .

This brings us tó what we consider the crux of this problem of interest on pure potential deficiencies, and on “poten-: tial” or temporary deficiencies which are assessed and collected but subsequeritly eliminated by the application of section 722. We believe that the defendant has obscured the real issue of whether the decision of the applicability of section 722 should.be Applied retroactively for all purposes, that is, just as though the decision had been made in the taxable year. We believe that it should be applied retroactively for all purposes because, as stated above, section 722 is in reality an alternative means of determining the true and correct tax due for the year.' ' When so applied, the difference between the true and correct excess profits tax and what has been paid is the adjustment.tobe made by way of refund or deficiency. Under section 292 (a), the standard provision allowing interest on deficiencies, the Government is entitled tó interest on any real deficiency in excess profits tax, and by reason of section 3771 (gj the taxpayer is not entitled to interest for years beginning prior to January 1,1942, or for years thereafter until one year after the filirig of its 722 application or September 16,1945; whichever is the later.

We deem it :óf rió consequence, insofar as the taxpayer’s right to a refund of interest on a standard issues deficiency is concerned when the deficiency was partially or wholly eliminated by the application of section 722 to the same year, that due to fortuitous circumstances the standard issues deficiency was assessed and collected with interest thereon before the Commissioner decided, or notified the taxpayer of his decision, to apply section 722. ■

If the taxpáyér iricorrectly computed its excess profits tax, the Commissioner could have obviously assessed and collected a deficiency therefor with interest thereon. Hówever, onc¿ it is determined that section 722 is .applicable, the Commis*641sioner must apply that section retroactively to the year in question and refund, insofar as excess profits taxes are concerned, the difference between the true and correct tax determined to be payable to the Government and the aggregate of the excess profits tax collected for that-year plus any interest ■collected thereon. '' !

We agree with the well reasoned decision of Kuder Citrus Pulp Co. v. United States (D. C. S. D. of Fla.), 117 F. Supp. 395, where the court stated at page 398:

In my view, the allowance of Section 722 relief by the Commissioner demonstrates beyond question that plaintiff’s excess profits credits for the years involved were too low from the very moment the applicable tax returns were filed. These credits did not become too low by virtue of the allowance of relief by the Commissioner. That allowance was simply recognition of a fact which already existed. The credits were too low from the very beginning and consequently did not' constitute a fair standard for determining the- excess profits to be taxed away from plaintiff. In other words, once the Commissioner’s determination of, appropriate relief under Section 722 was made, such relief related bac7c and tools effect as of the time the affected tax returns were filed, i. e. nunc pro tunc. [Emphasis -supplied.]

The defendant contends that the rationale of the Supreme Court in Manning v. Seeley Tube & Box Co., 338 U. S. 561, in its holding that interest on á deficiency was not abated when the deficiency itself was abated by the carryback of a net operating loss, is applicable to this 'case. We do not agree, for the reasons related in Koppérs,'supra,-&ná. those about to be given. The defendant contends that no distinction should be made between section 3771' (e), the section discussed by the Supreme Court in the Manning case, supra, and section 3771 (g) insofar as the Govérnment’s right to retain interest is concerned. However, this ignores the basic difference between those two sections. No interest on an overpayment resulting from the carryback of a:net operating loss has ever been allowed a taxpayer -under section 3771 (e) because the original tax for the year in question was the correct tax which had been assessed and collected based upon economic events that occurred and were inexistence in that taxable year. The adjustment in tax-resulted-from -facts and *642events occurring in subsequent years which are totally irrelevant in resolving, the question of the tax liability of the taxpayer as of the end of the particular taxable year. The amount determined to be due the Government as of the end of that year was unquestionably due at that time.

Section 3771 (g) and its counterpart section 292 (b) were designed for a different purpose and thus have a different effect. The disallowance of interest altogether on overpay-ments and deficiencies under those two sections was only temporary to allow an opportunity to establish administrative procedures to administer fairly and effectively the excess profits tax law.4 As indicated above, interest is allowed taxpayers on overpayments, and to the Government on deficiencies, resulting from the application of section 722 for taxable years beginning after December 31,1941, for any period after one year from the filing of the application for section 722 relief, or September 16,1945, whichever is the later.

Also as opposed to the facts in Manning v. Seeley Tube & Box Co., supra, it is not so clear in the instant case as to be beyond controversy that the taxpayer must “ * * * compute its [correct] tax * * without regard to section 722, at the time it files its return, because this section continues “ * * * and pay the tax shown on the return * * This statement, when considered in conjunction with the statement that “ * * * the,tax shall be determined by using such constructive average base period net income in lieu of the average base period net income otherwise determined * * *,” raises serious doubt as to whether Congress intended that section 722 be a pure “relief” provision rather than an im tegral part of the tax law to be applied to and as of, the taxable year in determining the true and correct tax due for that year. There is nothing in the legislative history to suggest that Congress intended to depart from the deep rooted annual basis concept and the established procedure of only exacting interest on real deficiencies. Had it been their im tent, we believe it would have been clearly expressed in either the statute or committee reports. Without such an expression we refuse to impute an intent to Congress to depart from *643the animal basis concept, and to allow the Government to retain interest on a purely potential or temporary deficiency which is based upon a tax that is admittedly excessive and discriminatory.

Under the facts of the instant case we find that the application of section 722, which we have held takes effect, if at all, as of the time the return for the year in question is filed, results in there being no deficiency for 1941 upon which the Commissioner can retain interest. For the reasons set out above and those enunciated in the Koppers Company case, supra, the plaintiff is entitled to recover the interest here sued for and interest thereon allowed by law. Judgment will be suspended to await the filing of a stipulation by the parties showing the exact amount due in accordance with this opinion.

It is so ordered.

dissenting:

For the reasons which I gave in dissenting from the opinion of the court in Koppers Company, Inc. v. United States, 126 C. Cls. 847, I respectfully dissent.

FINDINGS OP PACT

The court makes the following findings of fact upon the record, the stipulation by the parties, and the arguments and briefs of counsel:

1. The taxpayer is a corporation with its principal office in Landis, North Carolina, and files its tax returns on a calendar year basis.

2. March 15, 1942, the taxpayer filed an excess profits tax return on Form 1121 reporting an average base-period net income of $66,051.23 which produced a credit against taxable income of only $62,748.07 and an excess profits tax liability for the year of $95,102.03, which amount was paid in four installments during the year 1942.

*644■ 3. June 24, 1943, the taxpayer filed, on Form 991, which was an application for determination and computation of its profits tax under section 722 of the Internal Revenue Code, claiming a refund of a portion of the excess profits tax paid for the year 1941. The basis of the application was a claimed constructive average base period net income of $143,354.09. On September 9, 1944, taxpayer filed a claim for refund (Form. 843) for 1941 grounded upon its application for determination of its tax under section 722;

4. By letter dated July 27, 1945, the Internal Revenue Agent in Charge, Greensboro, North Carolina, informed the taxpayer that the revenue officer examining the taxpayer’s •1941 and 1942 tax returns had recommended the assertion of a deficiency in excess profits tax for 1941 in the amount of $3,562.13 and had recommended the denial of the taxpayer’s claim under section 722. The proposed deficiency arose from adjustments unrelated to the computation of the taxpayer’s excess'profits credit under section 722. On or about September 27,1945, a protest was filed by the taxpayer objecting to these adjustments and objecting to the denial of its claim under section 722.

After a conference in the office of the Revenue Agent in Charge, certain adjustments were made in taxable income for 1941 and the deficiency in excess profits tax was reduced to$3,308.52, but the denial of the taxpayer’s claim under section 722 was sustained. The taxpayer did not agree to the determination and requested that the entire matter for both the years 1941 and 1942 be referred to the Technical Staff, Atlantic Division, of the Bureau of Internal Revenue for consideration. This was in accordance with usual practicé and procedure. September 26, 1946, the taxpayer was advised that under' established procedure jurisdiction for handling claims under section 722 was under the Excess Profits Tax Council formed about April 1946, and was further advised that its claim had been returned to the Field Committee of the Excess Profits Tax Council operating in the office of the Revenue Agent in Charge at Greensboro, North Carolina. The Technical Staff continued consideration of the standard issues concerning the determination of taxable income for both years and, after conferences, an agreement was finally *645reached whereby the taxpayer, in order to settle the question -of' its income signed a waiver on assessment of a deficiency in excess'profits tax for 1941 in the amount of $3,083.11 without application of section 722. Under date of December 23, 1947, the taxpayer filed an Offer of Waiver of Restrictions on Assessments and Collection of Deficiency in Tax specifically reserving its rights under section 722. ■ By reason of the waiver of restrictions, the deficiency in excess profits of $3,083.11, together with interest thereon of $1,082.63, was assessed against the taxpayer on the February 27, 1948, Assessment List for North Carolina, and the taxpayer paid both sums on March 11,1948.

5. On August 15, 1947, the Internal Revenue Agent in Charge, Greensboro, North Carolina, mailed the taxpayer a copy of the Revenue Agent’s Report dated June 30, 1947, concerning the examination of the taxpayer’s claims under section 722 for 1941. The report was submitted after conferences with representatives of the taxpayer, at which conferences requests were made for submission of data in support of the application for determination of the profits tax under section 722. Thereafter, the revenue agent, on the basis of the data assembled by him, recommended a constructive average base period net income of $69,544.09 instead of the $66,051.23 used on the filed excess profits tax return. The credit against income thus recommended by the revenue agent was 95% of the $69,544.09. September 30, 1947, the taxpayer filed a protest objecting to the conclusions set forth in the August 15, 1947, letter from the Internal Revenue agent and asserting that the taxpayer- was entitled to a substantially higher excess profits credit than that recommended by the Revenue Agent’s report.

6. After consideration of the protest and evidence submitted by the taxpayer, the Excess Profits Tax Council, under date of January 20, 1948, decided and held that the taxpayer qualified for relief under section 722 (b) (4) of the Internal Revenue Code and thereby granted a constructive average base period net income of $75,219.48, which produced a credit thereunder of $71,458.51. The taxpayer’s tax liability resulting therefrom was a deficiency in income tax of $1,350.02 to which the taxpayer makes no objection, and an *646overpayment of excess profits tax of $4,354.92, of which the taxpayer was notified by letter from the Internal Revenue Agent in Charge, Greensboro, North Carolina, dated March 11,1948. March 29,1948, the taxpayer filed a Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of the overpayment thus determined.

7. On April 29, 1948, the Commissioner of Internal Revenue approved the decision of the Excess Profits Tax Council and issued a formal notice to the taxpayer by registered mail advising that the determination of its final excess profits tax liability, for 1941, disclosed an overpayment in the amount of $4,354.92 and the disallowance of the balance of its claim for refund filed September 9, 1944.

8. The Commissioner of Internal Revenue thereafter refunded the overpayment referred to in finding 7 above (Schedule No. 135571) in the amount of $4,354.92 but did not refund the interest paid in the amount of $1,082.63, which had previously been collected. This interest payment, made pursuant to the assessment described in finding 4 above, was the interest collected on the “potential” deficiency in excess profits taxes for 1941 after the Excess Profits Tax Council had held and decided that section 722 of the Internal Revenue Code was applicable.

9. August 25, 1949, the taxpayer filed a claim for refund demanding refund of the interest of $1,082.63, on the grounds that payment of this interest on the 1941 excess profits tax deficiency, determined while the case was under consideration by the Excess Profits Tax Council, was illegally and erroneously collected and retained.

10. March 1,1951, the taxpayer was notified by registered mail of the disallowance of its claim for refund of $1,082.63.

CONCLUSION OK LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiff is entitled to recover.

The entry of judgment is suspended to await the filing of a stipulation by the parties showing the amount due plaintiff, computed in accordance with this opinion.