St. Louis County Water Co. v. United States

delivered the opinion of the court*:

In this tax refund suit, plaintiff is seeking to recover $90,471.03 plus statutory interest on the amount of recovery, if any. Plaintiff asks this court to grant recovery by holding that the defendant was incorrect in assessing a deficiency in the amount of $37,460.88 for the year 1960 and $38,836.13 for 1961. Those deficiency assessments arose out of the following set of circumstances.

Plaintiff, since its incorporation in 1942, has been engaged in the business of supplying water to the inhabitants of St. Louis County, Missouri. It is a public utility type business and is, therefore, regulated by the Public Service Commission of Missouri. Plaintiff uses the accrual method of accounting and the calendar year as its taxable year.

During the taxable years of 1960 and 1961, the years here in question, plaintiff, in the normal course of operation, entered into contracts, to be described hereafter, for the extension of its existing water mains. These extensions, an essential facet of the business of the plaintiff as well as an essential need for the continued growth and well-being of St. Louis County, present the basis from which this case develops. In particular, it is the contracts to build these extensions that isolate and set forth the difficulties here to be resolved.

Those contracts required that whenever water mains were to be extended, the applicant for such extension was to pay plaintiff its estimated cost for such construction. The exact *595amount to be paid depended upon whether the extensions were to be made into (1) an area which was unoccupied and not as yet developed for residential purposes or, (2) into an area already occupied and developed, but in no event was the applicant expected to advance more than the actual cost of construction. In the first instance, covered by RBule 42 of plaintiff’s standard contract, the applicant, usually a real estate developer, would advance to plaintiff the estimated cost of construction while in the second situation, i.e., extension into a developed area, the applicant would advance to plaintiff, pursuant to Rule 43, a sum (X) equal to the excess of the estimated cost of extension construction (A) over four times the estimated annual revenue (B) from said extension [X=A — 4B]. The contracts for extension also provide that the moneys advanced for construction will be refunded to the applicant, without interest, over a period not to exceed 10 years beginning from the date of completion of the extension. Those refunds are computed on the basis of the addition of new customers together with the amount of revenue received therefrom each year. The contracts further provide that refunds will not exceed the total advances and, consequently, as each year passes plaintiff refunds a portion of that amount originally advanced to it by the applicant, depending upon how many new customers have subscribed for service on the new extension. That amount has varied for each extension but on an average plaintiff expects to refund at least 58 percent of the advances.

At the end of the aforementioned 10-year period, if repayment has not been made in full, plaintiff is then entitled to retain the balance of that amount originally advanced. This privilege is permitted and approved by the Public Service 'Commission of Missouri in order that the plaintiff may have a method of financing extensions into areas where there are no water mains in streets or roadways. Be that as it may, in this case we are not concerned with the propriety or impropriety of allowing plaintiff to retain unrefunded balances of construction advances; instead, we are concerned with the method by which it recovers, for Federal tax purposes, that portion actually refunded and, in particular, we are concerned with the depreciation deductions stemming from the *596inclusion of tbe newly constructed extensions in plaintiff’s depreciable asset account. Even more precisely, we are specifically concerned with the reasonableness of those deductions. Note, however, that we are not troubled by whether or not plaintiff is entitled to some amount of a depreciation deduction since it is conceded that plaintiff owns and maintains all extensions and at all times has the obligation to repair or replace any portion, or all, of any newly constructed main whenever necessary. Therefore, and to emphasize, we are concerned only with the reasonableness of plaintiff’s depreciation deduction.

The depreciation deduction, as computed by plaintiff, is arrived at for purposes of Federal income tax in the manner to be hereinafter described.1 Plaintiff, in accordance with practices developed at the creation of the corporation, first establishes a depreciable base for the water main extension to be depreciated.2 That depreciable base for years one through ten of the existence of that asset is presumed to be 100 percent of the value of the extension. However, at the end of year 10, when plaintiff is no longer required to make refunds of amounts advanced in respect to the extension being depreciated, plaintiff reduces the depreciable base by the amount unrefunded. Plaintiff then continues to depreciate its remaining depreciable base over the remaining useful life of the asset. Plaintiff used this approach with 'a composite account for all its extensions for each of the years here in question, 1960 and 1961, and claimed the resulting depreciation figure as a deduction on its tax returns for those years. Following an audit of the plaintiff’s Federal tax returns for 1960 and 1961 by the Internal Revenue Service, the plaintiff was assessed, on October 28, 1964, a deficiency plus *597interest of $90,471.03. Said deficiency was arrived at by the IES through reducing the aforementioned depreciable base for the water main extensions to an amount which corresponds more closely to the total amount actually refunded with respect to each extension. By so doing the depreciation deductions for 1960 and 1961 were reduced to an amount which the Internal Revenue Service claims to be a reasonable allowance for the exhaustion, wear and tear of the qualifying asset.

On November 5,1964, plaintiff paid the deficiency plus the interest thereon. On April 22, 1965, however, plaintiff filed its claim for refund of the amounts so paid plus interest on any refund. Thereafter, and on June 16, 1966, the Commissioner of Internal Eevenue notified plaintiff that its claim had been denied. Following said denial and within three years thereof plaintiff filed suit in this court to have the question of reasonableness resolved. Our commissioner, in an opinion carefully considered by this court, found that plaintiff was not entitled to recover. That conclusion was premised primarily upon the findings that plaintiff did not use a proper basis for the assets in question and thereby incorrectly computed its depreciation deduction whereby plaintiff’s income was not clearly reflected. On this appeal of that decision, plaintiff asserts that the efforts of our commissioner were misdirected and the question to be resolved is primarily one of reasonableness of the depreciation deduction thereby making the question of basis somewhat secondary. It is our opinion that plaintiff is correct for the following reasons.

In formulating his recommended opinion, our commissioner characterized the issue primarily as one involving depreciable base. It is not hard to determine why he felt this area to hold the 'answer to plaintiff’s dilemma, since several cases decided prior to this case had been decided on the basis question. One of those cases, and the one whose facts are most similar to ours, is Elizabethtown Water Co. Consolidated, 7 T.C. 406 (1946). In that case the Tax Court, by Judge Opper, followed the precedent established in Detroit Edison Co. v. Commissioner, 131 F. 2d 619 (6th Cir. 1942), aff'd, 319 U.S. 98 (1943). Judge Opper in Elizabethtown *598noted that almost the exact issue concerning depreciation had been decided by Detroit Edison and he therefore saw little reason to distinguish the case. That precedent or practice as developed by the Detroit Edison case and perpetuated by Elizabethtown is to confront the depreciation deduction question in cases such as we have here in terms of the de-preciable base for the assets involved. For instance, consider the statement made by the Sixth Circuit Court of Appeals, by Judge Hamilton, in the lower court’s decision in Detroit Edison, supra at 622:

As will be noted from the enumerated sections of the Revenue Act on the subject, so far 'as the basic sum is to be determined, the sections of the statute authorizing the allowance are concatenated with the sections of the statute providing for the adjusted basis for the determination of gain or loss on the sale of capital assets.

It is statements like these, together with a deep concern to be thorough, that have caused the question of the reasonableness of the depreciation deduction to be considered initially in terms of the basis of the asset to foe depreciated.3

To be sure, this court does not feel that such an approach is in error. Indeed, it appears that it was essential 'to those cases and probably the only means by which they could be decided. However, in this case we feel that limiting our consideration to the 'basis question in hopes of resolving the reasonableness issue is not the best route to take. Note well, we do not say that basis is not relevant, because it surely is so, but we are of the opinion that since the creation of the accelerated depreciation provisions by the Internal Revenue Code of 1954 a different avenue of approach has been con-*599sfcructed and we intend to travel that route in determination of this case.4 Nevertheless, it is also our intention to show that, even if one strictly adheres to the idea that the 'basis question must first be settled, our approach does not violate that traditional concept.

With the enactment of the Internal Revenue Code of 1954 came section 167.5 (26 U.S.C. §167 (1964)). This section authorized, as did its predecessor section 23(1) of the 1939 Code, as a deduction from gross income, a reasonable allowance for the exhaustion, wear and tear, including an allowance for obsolescence. However, unlike its predecessor, section 167 contained subsection (b) which described and authorized use of certain specific methods and rates for the depreciation computation. One of those methods is described by section 167 (b) (4) as “any other consistent method.” Said section provides that such a method should produce an annual allowance “which * * * does not * * * exceed the total of such allowances which would have been used had such allow-*600anees been computed under the method described in paragraph 2 [167(b) (2) ].” The allowance allowed by section 167(b) (2) is the declining balance method which could be used, during the years in question, at a rate not exceeding twice the straight line method. This section, i.e., section 167 (b), provides the starting point for the discussion of plaintiff’s contention since it is plaintiff’s position that this court need look no further than section 167 (b) for a determination of the reasonableness of its deduction. It is this point, says plaintiff, that makes this case different from those where the basis question played a primary part.

Plaintiff alleges, and we tend to agree, that the test for determining the reasonableness of its depreciation deduction is to compare the allowance for depreciation which was actually taken by the taxpayer with the maximum allowance allowed by section 167(b). This test is gleaned, says plaintiff, from a plain reading of the statute where it recites that “* * * ‘reasonable allowance’ as used in subsection (a) [167 (a) ] shall include (but shall not be limited to) an allowance computed in accordance with regulations prescribed by the Secretary or his delegate, under any of the following methods:”. (26 TJ.S.C. § 167(b) (1964)) Therefore, application of the test requires merely a comparison of the allowance deducted with the maximum allowance possible under subsection (b) (2). Before making that comparison, however, it would be advantageous at this point to review the specific problem involved in this case so that the facts may be more easily applied to the foregoing legal discussion.

It will be recalled that defendant, through the Internal Revenue Service, challenged plaintiff’s depreciation deductions for the taxable years 1960 and 1961. It did this by reconstructing plaintiff’s depreciable base in water main extensions that were not 10 years old as of 1961 or 1962. Such reconstruction eliminated those amounts paid to plaintiff with respect to an extension which had not been refunded; in other words, the defendant claims that plaintiff did not take a reasonable allowance as a deduction for depreciation because that allowance was computed from an incorrect basis. Defendant says that until plaintiff has actually incurred the *601full cost of the extension it cannot compute its depreciation deduction on 100 percent of the value of the extension.

Plaintiff, on the other hand, contends that it is entitled to a reasonable allowance and furthermore that such an allowance is what has been deducted for 1960 and 1961. Plaintiff goes on to show that its allowance is computed with respect and in accordance with section 167 (b) (4). That subdivision, as noted earlier, provides for “any other consistent method,” which, says plaintiff, includes its method which has been referred to as a “modified straight line method.”

It has been found, and we shall accept the finding because we are not convinced to the contrary, that plaintiff’s method qualifies as “any other consistent method.” This was found because plaintiff uses a form of computation that allows for accelerated depreciation and yet does not fall within subsections (b) (2) or (b) (3). Moreover, we are convinced, and it has been found as a fact, that the plaintiff has used this method of accounting since its (plaintiff’s) incorporation in 1942; therefore, we find it to be a “consistent” method within the meaning of the statute.

Therefore, having determined that the method used by plaintiff is both an accelerated-type method and that it is consistently used, all that remains, says plaintiff, is to subject the allowance produced to the test as previously discussed. When this is done, and done even with the basis as reconstructed by the Internal Revenue Service, the test is satisfied. It is satisfied in that the depreciation allowance produced by using the double declining balance method, as prescribed by section 167 (b) (2) and applied to a cost basis, yields a figure which is more than that figure produced by using plaintiff’s method with the depreciable base of 100 percent of the asset during the first 10 years of its existence. Moreover, the deductions taken by plaintiff on a cumulative basis do not exceed that which could have been taken had plaintiff used the double declining balance with a cost basis. To make this point perfectly clear, consider the following figures submitted to the court as plaintiff’s exhibit 1, where it is clearly evidenced that plaintiff’s depreciation figures for the years 1960 and 1961 (column A) are less than those figures which *602represent the amount allowable under section 167 (b) (2) (column C).

Notwithstanding, repeats defendant, plaintiff cannot prevail because it is including in its depreciable base, for the first 10 years, 100 percent of the value of the asset, a part of which it has not suffered as cost. To approve such a practice, alleges defendant, violates fundamental principles long accepted as solid concepts of tax law, the first of which being that before depreciation can be computed, the proper depre-ciable base must be established. See, 4 Merfcens, Federal Income Taxation, section 23.21 (1966 Ed.).

Defendant’s point being well taken, we will now deal with the basis question. Note at the outset, however, that the order of our discussion indicates that we consider this case to be one primarily concerning reasonableness of the depreciation allowance and not one of the proper depreciable base.

It has been said that one of the basic concepts ingrained into the tax law is that “elements of the taxing act * * * do not stand independent and isolated from each other.” (Detroit Edison, supra, 131 F. 2d 619 at 623, aff’d, 819 U.S. 98 (1943), and that, therefore, and as applied to our case, section 167 (b) (4) cannot stand alone but must be read in conjunction with section 167 (g). That section provides that “the basis on which exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be the adjusted basis as provided in section 1011 * * Section 1011, when turning thereto, refers to section 1012 which establishes *603the basis for depreciation to be the cost of such property. With this rale, there can be no argument; moreover, we have no quarrel with the proposition that elements of an act must be considered together. As a matter of fact, we strongly advocate such practice; but, as a corollary to that practice, it should also be recognized that in considering relevant sections and subsections, the elements thereof should not be commingled to the point where the truly determinative part is engulfed by those that are only related. In this instance and under the facts of this case, it is our opinion that section 167 (g) is not the determinative one.

It is this section, or its predecessor section 23 (n) of the 1939 Code, which has, in cases such as Detroit Edison, supra, led the courts to consider the basis question as primary, and it is this section that defendant points to in its argument that plaintiff’s depreciation deduction is not proper. However, we are convinced, as noted, that this subsection, while obviously related and worthy of every consideration, is not an obstacle to our decision intimated at earlier. In more specific terms, we are of the opinion that subsection (g) of section 167 has been met with and satisfied. It has been applied and satisfied by plaintiff’s demonstration to this court that through reconstruction of its depreciable base, using the cost basis as required by section 167(g) (i.e., the very same cost basis advocated by the government in this case), its actual depreciation deductions taken are less than those possible under section 167(b) (2). Such a demonstration has a two-fold effect; first, it shows that plaintiff has satisfied all the requirements of section 167 and secondly, it aligns our decision with those which have been concerned primarily with basis as it applies to the depreciation area. The only difference in the latter instance is that those decisions which were principally concerned with the basis question had no other test upon which the depreciation deduction could be judged. Those cases did not have to be concerned with the innovations of the 1954 Code in the form of accelerated depreciation and the tests established pursuant thereto. Finally, we feel that the facts of this case dictated a decision first as to the reasonableness of the depreciation deduction and as a corollary we considered the basis question. Having *604been satisfied that plaintiff’s depreciation deduction was reasonable, and being of the opinion that plaintiff’s allowance is reasonable even when a reconstructed cost basis is used, we have no other choice than to hold for the plaintiff. Consequently, plaintiff is entitled to recover and judgment is entered for plaintiff accordingly, with the exact amount of recovery to be determined pursuant to Rule 131 (c).

dissenting:

I respectfully dissent from the court’s opinion and would reach the same result as our trial commissioner, although on more narrow grounds.

Our commissioner saw the instant question as one of plaintiff’s cost for purposes of ascertaining the depreciable 'base of water main extensions constructed under advance contracts. In so doing, he was guided by section 167(g),1 providing that:

(g) Basis for Depreciation. — The basis on which exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be the adjusted basis provided in section 1011 for the purpose of determining the gain on the sale or other disposition of such property.

Section 1011 refers to section 1012 which, in turn, provides that “[t]he basis of property shall be the cost of such property.”

The court, however, finds a different approach in the creation of the accelerated depreciation provisions by the Internal Eevenue Code of 1954. The rationale for this approach, as I understand it, is as follows: Section 167 (a) allows as a deduction for depreciation a reasonable allowance for the exhaustion, wear and tear of property used in the trade or business. Section 167(b), added by the 1954 Code, provides that “* * * ‘reasonable allowance’ as used in subsection (a) shall include (but shall not be limited to) an allowance computed in accordance with regulations prescribed by the Secretary or his delegate, under any of the following *605methods;”. Section 167(b)(4) provides that one such method is;

(4) any other consistent method productive of an annual allowance which, when added to all allowances for the period commencing with the taxpayer’s use of the property and including the taxable year, does not, during the first two-thirds of the useful life of the property, exceed the total of such allowances which would have been used had such allowances been computed under the method described in paragraph (2) [the declining balance method at a rate not exceeding twice the straight line rate].

Since plaintiff’s method of depreciation qualifies as “any other consistent method” within the meaning of subsection (b) (4) ,2 the court holds that it is necessary only to compare the allowance for depreciation actually deducted by plaintiff with the maximum allowance permitted by the declining balance method at a rate not exceeding twice the straight line rate — the so-called double declining balance method. When this comparison is made, the court finds that the depreciation allowance produced by the double declining balance method upon the cost basis determined by defendant is greater than the allowance actually taken by plaintiff. Thus, the court concludes that the allowance deducted by plaintiff meets the “test” of section 167 (b) that a reasonable allowance within the meaning of section 167(a) is an allowance computed under the section 167 (b) (4) method without regard to the depreciable base used in the computation of that allowance.

I can find no support for the court’s holding that section 167(b) introduced into the 1954 Code authority for the approach taken by the court. In enacting subsection (b) into law, the congressional mind was concerned with the timing of the depreciation deductions by which the cost of deprecia-ble property is recovered tax-free over the years of service. *606This congressional intent is made abundantly clear in the legislative history surrounding section 167 which provides in part:

Present law allows as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence. Depreciation allowances are the method by which the capital invested in an asset is recovered tax-free over the years it is used in a business. The annual deduction is computed by spreading the cost of the property over its estimated useful life. Most taxpayers use the straight-line method which spreads the cost evenly over the years, although other methods are available, including the declining-balance method subject to a limitation of the rate to 150 percent of the corresponding straight-line rate.

* * * * *

There is evidence that the present system of depreciation acts as a barrier to investment, particularly with respect to risky commitments in fixed assets. Comparatively slow rates of write-off tend to discourage replacement of obsolete equipment and the installation of modem, up-to-date machinery. Under long-run peacetime conditions, in the absence of the inflationary pressures existing in the forced-draft economy of the postwar period, present tax depreciation methods might depress business capital expenditures below the level needed to keep the economy operating at high levels of output and employment.

Your committee’s bill provides for a liberalization of depreciation with respect to both the estimate of useful life of property and the method of allocating the depreciable cost over the years of service.

* * * * *

More liberal depreciation allowances are anticipated to have far-reaching economic effects. The incentives resulting from the changes are well timed to help maintain the present high level of investment in plant and equipment. The acceleration in the speed of the tax-free recovery of costs is of critical importance in the decision of management to incur risk. The faster tax writeoff would increase available working capital and materially aid growing businesses in the financing of their expansion. For all segments of the American economy, liberalized depreciation policies should assist modernization and expansion of industrial capacity, with resulting eco*607nomic growth, increased production, and a higher standard of living.

* * * * *

The changes made by your committee’s bill merely affect the timing and not the ultimate amount of depreciation deductions with respect to a property. [H. Rpt. No. 1337, 83d Cong., 2d Sess. at 22-25 (1954).] (Emphasis supplied.)

Furthermore, the report of the Senate Finance Committee states with respect to section 167(f),3 the basis subsection:

Subsection (f) corresponds to section 114(a) of the 1939 Code. * * *. No substantive changes are made. [S. Rpt. No. 1622, 83d Cong., 2d Sess. at 206 (1954).] (Emphasis supplied.)

In sum, the congressional intent was to provide for acceleration of the deductions for depreciation computed upon cost to the taxpayer as under prior law.4 Congress set forth in subsection (b) methods of allocating that cost over the years of service which would be deemed capable of producing the “reasonable allowance” deductible pursuant to subsection (a), provided the other statutory requirements were met. S. Rpt. No. 1622, 83d Cong., 2d Sess. at 201 (1954). This is, in fact, the plain reading of the introductory language of subsection (b) from which the court gleans its “test” for determining the question of reasonableness.

Although the court believes, and I disagree, that section 167 (g) is not determinative in this case, the court is also of the opinion that subsection (g) has been satisfied: “It has been applied and satisfied by plaintiff’s demonstration to this court that through reconstruction of its depreciable base, using the cost basis as required by section 167 (g), its actual depreciation deductions taken are less than those possible under section 167 (b) (2).” I now turn to the question of whether subsection (g) has been satisfied.

*608This question was determined against plaintiff in the case of Elizabethtown Water Co. Consol., 7 T.C. 406 (1946), which, as found by the trial commissioner, cannot be distinguished from the case at hand. The issue in Elizabethtown was whether the taxpayer could include in its depreciable base the cost of installing water main extensions where the cost was deposited with the taxpayer subject to refund over a 10-year period. Defendant disallowed as a portion of the depreciable base the mean of unrefunded deposits between the beginning and close of the tax years in controversy. The Tax Court reviewed the existing authority and stated:

Were it not for a single aspect, this proceeding would be identical in principle with Detroit Edison Co. v. Commissioner, 319 U.S. 98, and would similarly call for dis-allowance of the depreciation deducted by petitioner on extensions and connections paid for by its customers. The controversy here, which was not reached in the Supreme Court’s discussion of the Detroit Edison case, covers the extent to which petitioner’s obligation to refund the payments in question to its customers avoids the rule of that case.

It might appear on superficial inspection that two classes of payments are involved — those which petitioner could no longer be compelled to return, and those which would still be returnable upon the specified conditions. Since, however, the view we take of the matter is otherwise, the two classes of payments will be dealt with together.

In our estimation, the present situation cannot in any respect be adequately removed from the scope of the Detroit Edison principle. The sums in question, whatever the condition of their repayment, were delivered to petitioner and used by it to construct the capital assets in question. To that extent they diminished the investment which petitioner out of its own capital, incorporated in the improvements — in other words, its own cost under the rule of Detroit Edison Co. v. Commissioner. When, if ever, the sums were repaid, for whatever reason, petitioner’s investment would come into existence, but not until then. See Reisinger v. Commissioner (C.C.A., 2d Cir.), 144 Fed. (2d) 475. Even though it kept its accounts on the accrual basis, the obligation to repay was at all times too speculative to constitute an accruable liability. [7 T.C. at 411-12.]

*609In Detroit Edison Co. v. Comm'r, 319 U.S. 98, at 102 (1943), the Supreme Court declared:

But we think the statutory provision that the “basis of property shall be the cost of such property” [§ 1012 of the 1954 Code] normally means, and that in this case the Commissioner was justified in applying it to mean, cost to the taxpayer. (Emphasis supplied.)

I do not think that plaintiff has met the cost basis requirement of subsection (g) by presenting computations which show that plaintiff’s actual deductions for depreciation were less than the allowances that would have been authorized had plaintiff used the double declining balance method applied to a cost basis. Section 167(b) sets forth four accounting methods for computing depreciation of property. These include (1) the straight line method, (2) the declining balance method, (3) the sum of the years-digits method, and (4) “any other consistent method * * It is obvious from the wording and structure of the statute that the four authorized methods are in pari materia. The trial commissioner found that in computing its depreciation, plaintiff used a composite rate of 1.52 percent, representing an estimated composite average useful life of 65.79 years for plaintiff’s depreciable plant. The trial commissioner described this as a modified form of the straight line method. Insofar as the case before us is concerned, it is one of the other “consistent” methods described in section 167 (b). However, there is nothing in the statute which authorizes a taxpayer who uses any of the four methods to disregard cost as a basis in applying the method selected by him. Consequently, there is no more authority in the statute for plaintiff to disregard the cost basis of its property in applying its accounting method than there would be for a taxpayer using the declining balance method to apply that method to an erroneous and unrealistic basis other than cost. In order to satisfy subsection (b) (4) together with subsection (g), plaintiff’s deductions pursuant to its method computed upon the cost basis to plaimtiff must not exceed the allowances permitted by the use of the double declining balance method computed upon the cost basis to plaintiff. In other words, the subsection (g) cost basis requirement re*610mains constant while plaintiff’s annual allowance pursuant to its subsection (b) (4) method is tested against the subsection (b) (2) ceiling.

In my opinion, this is the only way that subsections (b) and (g) can be read in harmony. The result of the court’s decision is to allow plaintiff to deduct depreciation computed upon a depreciable base which is presumed to be 100 percent of the value of a water main extension, rather than upon a base which is the cost of plaintiff. I regard this as a violation of the statutory mandate of section 167 (g).

Since I think that the decision in Elizabethtown Water Co. Consol., supra, is controlling and that plaintiff is required to include in its depreciable base only the amounts actually refunded, it is necessary to consider plaintiff’s alternative contention that its depreciable base is 58.6 percent of the total advances subject to refund. This is the amount which plaintiff says it can reasonably expect to pay for extensions constructed under its advance contracts according to plaintiff’s past experience.

Plaintiff relies on Rev. Rul. 55-119, 1955-1 C.B. 352, and the case of John C. W. Dix, 46 T.C. 796 (1966), aff'd, 392 F. 2d 313 (4th Cir. 1968), following the ruling, for the proposition that plaintiff can estimate its cost herein. In those situations, however, the taxpayer’s annual cost was fixed and all that remained in order to determine the depreciable base was the valuation of what the taxpayer had agreed to pay. Plaintiff’s annual cost is not so fixed but is contingent upon various conditions set forth in the advance contracts so that any valuation of what plaintiff has agreed to pay would be purely speculative. Where the taxpayer’s obligation is of a contingent and speculative nature, the courts have refused to value the obligation and include any amount in the depreciable base. F. & D. Rentals, Inc. v. Comm'r, 365 F. 2d 34 (7th Cir. 1966), cert. denied, 385 U.S. 1004 (1967); Detroit Edison Co. v. Comm’r, 131 F. 2d 619 (6th Cir. 1942), aff'd, 319 U.S. 98 (1943); Columbus & Greenville Ry. Co., 42 T.C. 834 (1964), aff'd per curiam, 358 F. 2d 294 (5th Cir. 1966); Albany Car Wheel Co., 40 T.C. 831 (1963), aff'd per curiam, 333 F. 2d 653 (2d Cir. 1964); Elizabethtown Water Co. Consol., supra.

*611Plaintiff’s reliance on Crane v. Comm'r, 331 U.S. 1 (1947); Cambiria Dev. Co., 34 B.T.A. 1155 (1936); Herzog Bldg. Corp., 44 T.C. 694 (1965); and McCormac v. United States, 191 Ct. Cl. 483, 424 F. 2d 607 (1970), is also unfounded, because those cases similarly involved definite obligations where the amount which the taxpayer had agreed to pay was subject to valuation.

For the reasons stated above, I would hold that plaintiff is not entitled to recover and would dismiss the petition.

Skelton, Judge, joins in the foregoing dissenting opinion.

FINDINGS OK FACT

The court, having considered the evidence, the report of Trial Commissioner William E. Lay, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, St. Louis County Water Company, is and was at all times relevant to this proceeding, a corporation organized and existing under the laws of the state of Missouri, with its principal place of business located at 8390 Delmar Boulevard, University City, Missouri. The plaintiff employs the accrual method of accounting and the calendar year as its taxable year. The taxable years in issue are 1960 and 1961.

2. Since its incorporation in 1942, plaintiff has engaged in the business of supplying water for and to the inhabitants of St. Louis County, Missouri. In the respective years 1960 and 1961, plaintiff’s distribution system consisted of approximately 1,982 miles and 2,058 miles of water mains, and plaintiff served approximately 159,118 and 164,641 residential, commercial and industrial customers. In the period between the beginning of 1950 and the end of 1960, plaintiff increased its depreciable plant from approximately $16 million to approximately $52 million.

3. Plaintiff’s business is regulated by the Public Service Commission of Missouri which has jurisdiction over rates and charges; forms of contract or agreement; rules and regulations relating to rates, charges, or services; and all general privileges and facilities granted or allowed.

4. During both taxable years in issue, the extension of plaintiff’s water mains necessary to serve prospective cus*612tomers in territories or areas where there were no water mains in the streets or roadways, was governed by plaintiff’s Rules 42 and 43. Both of these rules were issued in 1935 by the company whose assets plaintiff acquired in 1942 and became effective in accordance with the statutes of Missouri and the procedures of the Public Service Commission of Missouri on August 2, 1935. As described in findings 5 and 6 below, the extensions of water mains under Rules 42 and 43 are made pursuant to standard form written contracts wheréby the water main extensions are financed with funds advanced to the plaintiff by the applicants for such extensions. Approximately 95 percent of the total amount of the funds advanced is received under Rule 42 and approximately 5 percent of the total amount is received under Rule 43.

5. Rule 42 and the contracts thereunder contain the terms for the extension of water mains into areas which are unoccupied and not developed for residential purposes. These terms provide that an applicant for the extension of water mains shall advance to the plaintiff the estimated cost of such extensions. Such advance is adjusted to actual cost as soon as the water main extension is installed, by a refund, if the estimate exceeds actual cost. The contracts for extensions under Rule 42 provide the following regarding repayment of advances:

The Water Company will make refunds to you as follows: (A) For each new permanent customer taking water service for continuing use under a regular yearly contract, attached through a separate connection to the main laid at your cost and expense within the first ten years after the completion of the above extension, you will receive a refund of $50. (B) For each new large permanent customer under a regular yearly contract, attached through a separate connection to this extension within the first ten years after the completion of the above extension, you will receive an initial refund of $50 at the time such a customer is connected. On completion of the first yearly billing period, the Water Company will refund to you two and one-half times the amount of annual revenue received during the first year of service to such large customer less the initial refund of $50.

*613Rule 42 provides that no interest will be paid by the plaintiff on the amount advanced to it. If repayment in full has not been made upon expiration of the 10-year “refund” period which commences when the water main extension is installed, plaintiff becomes entitled to retain any unrepaid balance of the advance.

6. Rule 43 and the contracts thereunder contain the terms for the extension of water mains necessary to serve new customers in areas already occupied and developed. These terms provide that if the estimated cost of the extension is greater than $50, the new customer shall advance to the plaintiff a sum equal to the excess of the estimated cost of the extension over four times the estimated annual revenue to the plaintiff therefrom. The contracts for extensions under Rule 43 provide the following regarding repayment:

The Water Company will make refunds to you as follows : (A) On completion of the first yearly billing period, the Water Company will refund to you four times the difference between the amount of annual water revenue originally estimated by the Water Company to be received for service furnished the above original applicant, and the actual water revenue received during the first year from said original applicant, provided the first year’s actual revenue is greater than the estimated annual revenue. For the purpose of computing the first year’s water revenue, the time shall start from the beginning of the first regular billing period after the main is installed and is in service. (B) For each new customer taking water service for continuing use under a regular service contract, attached through a separate connection to the main laid under the terms of this contract, within ten years after the completion of the above extension, you will receive a refund of $50.

Rule 43 provides that no interest will be paid by the plaintiff on the amount advanced to it. If repayment in full has not been made upon expiration of the 10-year refund period which commences when the water main extension is installed, plaintiff becomes entitled to retain any unrepaid balance of the advance.

*6147. Water main extension rules such as plaintiff’s Rules 42 and 4B are permitted and approved by the Public Service Commission of Missouri in order to provide public utilities with a method of financing their construction of extensions into territories and areas where there are no water mains in the streets or roadways. The exclusion from rate base of water main extensions to the extent they are financed with customer advances for construction or contributions in aid of construction, as more particularly described in finding 17, infra, protects existing consumers from excessive rates that would result from noneconomic extensions required of the utility in the performance of its public service.

8. Plaintiff constructs, owns, and maintains all extensions to its system of water mains governed by Rules 42 and 43, and supplies water to all consumers a's they request connections to such mains.

In addition, plaintiff has at all times the obligation to repair and replace part or all of any newly extended water mains whenever necessary and to continue supplying water to areas served by the new extensions as long as any consumers occupy such areas.

Once an extension governed by either Rule 42 or 43 has been laid, water service must be maintained by plaintiff even if relocation of the main becomes necessary because of highway construction or other reasons. This must be accomplished at plaintiff’s own expense without additional financing assistance from the developer or prospective customers, no matter 'how recently the extended main was laid nor how frequently relocation may be required.

In a case where the plaintiff 'has an easement over privately owned land, as distinguished from public roadways and other government-owned property, the plaintiff is reimbursed for relocation expenses by the governmental authority which has required the relocation.

9. Plaintiff keeps its books 'and records in accordance with the Uniform System of Accounts prescribed by the Missouri Public Service Commission, which system is the same in all *615respects here material as the Uniform System of Accounts prescribed by the Federal Power Commission.

On the “Liabilities and Other Credits” side of plaintiff’s balance sheet there are sis classes of accounts. These classes are (1) Proprietary Capital, (2) Long-term Debt, (3) Current and Accrued Liabilities, (4) Deferred Credits, (5) Operating Reserves, and (6) Contributions in Aid of Construction.

The Deferred Credits classification includes an account called “Customer Advances for Construction” which is described as follows:

This account shall include advances by or in behalf of customers for construction which are to be refunded either wholly or in part. When a person is refunded the entire amount to which he is entitled according to the agreement or rule under which the advance was made, the balance, if any, remaining in this account shall be credited to account 271, Contributions in Aid of Construction.

In this case, the account titled “Customer Advances for Construction” contains not only refundable amounts advanced by prospective consumers under Rule 43 but also refundable amounts advanced under Rule 42 by real estate developers of new areas who are making provision for the availability of water service to the properties being developed. The account contains advances received by plaintiff under both its Rules 42 and 43.

Other accounts in the deferred credit classification include “Unamortized Premium on Debt” and “Other Deferred Credits,” the latter account embracing advance billings and receipts and other deferred credit items not provided for elsewhere, including amounts which cannot be entirely cleared or disposed of until additional information has been received.

The “Contributions in Aid of Construction” account is described in the Uniform System of Accounts as follows:

A. This account shall include donations or contributions in cash, services, or property from states, muniei-*616palities or other governmental agencies, individuals, and others for construction purposes.

B. The credits to this account shall not be transferred to surplus or to any other account without the approval of the Commission.

C. The records supporting the entries to this account shall be so kept that the utility can furnish information as to the purpose of each donation, the conditions, if any, upon which it was made, the amount of donations from (a) states, (b) municipalities, (c) customers, and (d) others, and the amount applicable to each utility department.

Note. — There shall not be included in this account advances for the construction which are ultimately to be repaid wholly or in part. (See account 252 Customer Advances for Construction.)

10. In accordance with such Uniform System of Accounts, upon receipt of an advance from a developer or prospective consumer, the “Cash” account on the plaintiff’s books is debited for the amount thereof and a corresponding credit is posted to the “Customer Advances for Construction” account. When all the work on an extension has been completed and the actual cost is known, any sum advanced by the developer or prospective consumer in excess of actual cost is returned to him and the foregoing entry is reversed to the extent of the amount returned. All sums so advanced go into the plaintiff’s general funds and are not segregated in any manner.

11. Repayment of funds advanced by prospective customers is made by plaintiff on the basis described in findings 5 and 6, supra, up to the full amount of each advance during a 10-year period from the date the extension is installed. When a “refund” is made, the account on plaintiff’s books called “Customer Advances for Construction” is reduced by a debit and a corresponding credit is posted to the “Cash” account.

Upon expiration of said 10-year period, if repayment in full has not been made, plaintiff becomes entitled to retain the balance of any unrepaid advance. In accordance with the Uniform System of Accounts adopted by the Missouri Pub-*617lie Service Commission, any nonrefundable balances in the “Customer Advances for Construction” account at the end of the 10-year “refund” period are transferred to the account called “Contributions in Aid of Construction.” This is done by a debit to “Customer Advances for Construction” and a credit to “Contributions in Aid of Construction.” Depreciable base for tax purposes is also reduced by all amounts credited to “Contributions in Aid of Construction” as more particularly described in finding 18, infra. With respect to individual water main extension projects financed with prospective customers’ advances, repayments have ranged from 0 to 100 percent.

12. During the period 1960 through 1967, plaintiff entered into a total of 2,058 contracts for extension of its water mains under Kules 42 and 43 as follows:

Year Number 0} contracts entered into

1960 _ 261

1961_ 275

1962 _ 290

1963 _ 254

1964 _ 266

1965 _ 273

1966 _ 218

1967 _ 216

Since more than 200 new contracts are being entered into annually, there are in excess of 2,000 contracts in effect in a single year on which “refunds” may be paid. The total number of separate “refunds” which must be computed and made by plaintiff annually averages in excess of 6,000 and even though “refunds” due the same party under different contracts are combined in a single “refund” check, more than 4,000 “refund” checks are issued on an average each year by plaintiff.

13. Refundable advances received by the plaintiff in the years 1943 through 1967, and those advances which became nonrefundable contributions at the end of their respective *61810-year “refund” periods in the years 1953 through 1967, are as follows:

*61914. Total annual refunds of advances made by plaintiff under all Rule 42 and 43 contracts in effect during the years 1943-1967 are as follows:

Annual Refunds of Advances Under Rules 42 and 43

Tear Amount

1943 _ $17,657.00

1944 _ 892. 72

1945 _ 2,365.18

1946 _ 20, 659. 86

1947 __ 60,469.15

1948 _ 107,685.23

1949 _ 135,373. 73

1950 _ 198,013. 34

1951_ 252,033.74

1952 _ 236,102. 55

1953 _ 312,793.91

1954 _ 563,123. 33

1955 _ 555, 943. 61

1956 _ 729,755.21

1957 _ 452,434.19

1958 _ 611,905. 27

1959 - 640,825.26

1960 - 735,142. 38

1961_ 723, 598. 97

1962 _ 716,197.37

1963 _ 843,867.07

1964 - 933,765. 01

1965 - 1,039,974.40

1966 _ 1,086,513.13

1967 - 902,959.15

*62015. The balance of refundable advances on hand at December 31 each year during the period 1943 through 1967 was as follows:

REFUNDABLE ADVANCES On HAND AT DECEMBER 31

Year Amount

1943 _ $3,399

1944 _ 45,171

1945 _ 146,205

1946 _ 362,449

1947 _ 557,717

1948 _ 751,401

1949 _ 912,332

1950 _ 1,203,430

1951_ 1,464,123

1952 _ 1, 827, 947

1953 _ 2,293,021

1954 _ 2, 952,273

1955 _ 3,763,785

1956 _ 3,979,947

1957 _ 4,172,702

1958 _ 4,445,592

1959 _4,911,170

1960 _ 5,037,800

1961_ 5,204,4-14

1962 __ 5,730, 633

1963 _ 5,982,684

1964 - 5,978, 059

1965 _ 6,162,398

1966 - 5,785,405

1967 - 5,926, 616

16. Plaintiff’s cumulative experience up to the close of the years 1960 and 1961 is that 58.6 percent of all advances received under Rules 42 and 43 was refunded and that 41.4 percent of such advances became nonrefundable Contribu*621tions in Aid of Construction at the end of the 10-year refund periods. The computation of the 58.6 percent and 41.4 percent is set forth below:

*62217. La computing plaintiff’s annual depreciation allowances for regulatory agency purposes, the total amounts in plaintiff’s depreciable plant accounts (unreduced 'by “Customer Advances for Construction” or “Contributions in Aid of Construction”) are used as the base for depreciation. However, the regulatory agency requires the exclusion of amounts in both the “Customer Advances for Construction” and “Contributions in Aid of Construction” accounts from the rate base used to determine the fair rate of return which plaintiff is entitled to earn on its total capital dedicated to public service. As advances are refunded by plaintiff, the amounts refunded are added to rate base. This practice has been consistently followed for regulatory agency purposes since the adoption of Rules 42 and 43.

18. Under the plaintiff’s depreciation accounting practice, used consistently since its incorporation in 1942 both for federal income tax purposes and for other corporate purposes, plaintiff computed its depreciable base by eliminating from the total of plaintiff’s depreciable plant accounts the cumulative balance in the “Contributions in Aid of Construction” account. The depreciation rate is applied to the average of the beginning and ending balances in a single composite depreciable plant account which is the total of all individual depreciable plant accounts, as adjusted above. Thus, the depreciable plant accounts, as adjusted, include the amounts in the “Customer Advances for Construction” account, to the extent that water mains financed with such advances have been installed. The cost of such mains is added to the depreciable plant 'accounts when the m¡ains are installed. The effect of this practice is that the entire original cost of constructing Rule 42 and 43 water main extensions is included in depreciable base during the first 10 years from the date each such extension is installed. However, at the end of this 10-year period, if the advance relating to such extension has not been fully refunded, the remaining amount, which then becomes nonrefundable, is transferred to the “Contributions in Aid of Construction” account and is thus removed from the depreciable base of plaintiff’s properties in computing annual depreciation allowances. Plaintiff has consistently reduced its total utility plant each year by the *623aggregate amount of nonrefundable “Contributions in Aid of Construction” in determining its depreciable property base for federal income tax purposes since 1954, at which time the cost of its total utility plant was reduced for such purposes by the portion of advances which had become nonrefundable under Rules 42 and 43 in the years 1953 and 1954. The plaintiff did not report in income in any year the amount of contributions or advances. The plaintiff did not make an adjustment in any year for depreciation taken in prior years on advances either ultimately refunded or unre-funda'ble in the given year.

19. For the years in issue, annual allowances for depreciation were computed for federal income tax purposes using a composite rate of 1.52 percent representing an estimated composite average useful life of 65.79 years for plaintiff’s depreciable plant. This composite rate of depreciation was consistently used by plaintiff for federal income tax purposes from 1942 through 1961 for computing depreciation on its utility plant. At the time this composite rate was determined by the taxpayer and accepted by the Internal Revenue Service, the full construction cost of Rule 42 and 43 extensions was included in depreciable base during the first 10 years after the extensions were installed as described in finding 18, supra. The useful life of such extensions is 100 years.

20. The federal income tax return filed by plaintiff for each of the taxable years 1942-1959 has been subjected to examination by the Internal Revenue Service with only the four exceptions — 1947, 1949, 1951 and 1952. In no examination of plaintiff’s tax returns filed for taxable years prior to 1960 and 1961 has the Internal Revenue Service eliminated from depreciable base any part of the refundable “Customer Advances for Construction” now in controversy. The plaintiff never requested a ruling from the Internal Revenue Service with regard to the depreciation practice described in findings 18 and 19, supra, and such depreciation practice was never discussed in any Revenue Agent’s report prior to the one made in connection with the examination of plaintiff’s tax returns for the taxable years 1960 and 1961.

21. After examination of plaintiff’s tax returns for the years 1960 and 1961, the Internal Revenue Service reduced *624plaintiff’s depreciable base by the mean average for each year of all refundable but unrefunded advances on mains installed and reduced plaintiff’s depreciation allowance as follows:

22. Mr. John C. Padgett, an expert certified public accountant, testified on behalf of the plaintiff. He is the managing partner of the St. Louis office of Lybrand, Boss Bros. & Montgomery, which is a national and international firm of certified public accountants. Since plaintiff’s incorporation in 1942, it has been a client of that firm;. Under Mr. Padgett’s supervision, the firm regularly audits plaintiff’s books and records, reviews the preparation of its annual federal and state income tax returns, and renders various types of management consulting services.

23. Mr. Padgett testified as to plaintiff’s method of computing depreciation on property constructed with advances under Rules 42 and 43 for federal income tax and other non-regulatory purposes as set forth in detail in findings 18 and 19, supra. Mr. Padgett testified that plaintiff’s method of computing depreciation matches the depreciation deduction against the revenue derived from the properties, commences the depreciation at the time the property is physically subject to wear and tear, provides for the recovery of the full cost of the property over its useful life, and recognizes as plaintiff’s cost of the property the full amount of the monies ad*625vanced by the developers and the customers at the time said property is placed in service. He further testified that to the extent that part of the cost may not be refunded, there is an acceleration of depreciation in the first 10 years over the depreciation that would be obtained by use of the straight-line method of depreciation and to that extent was not purely straight-line depreciation. Mr. Padgett testified that in his opinion plaintiff’s method of computing depreciation was sound and was in accordance with accepted accounting principles.

24. Mr. Jerome Y. Halperin testified on 'behalf of the plaintiff as an expert to determline the amount of advances under Rules 42 and 43 which plaintiff would be required to refund as of the end of 1960 and 1961. Mr. Halperin is a certified public accountant, an attorney and a tax partner in the Detroit office of the firm of Lybrand, Ross Bros. & Montgomery. He is the regional tax director for the central region of the United States for that firm, and is also chairman of the national real estate industry group for the firm. He has had experience in evaluating the various liabilities of a business enterprise.

25. Mr. Halperin testified that in his opinion the amount of advances which plaintiff would be required to refund in a given year (such as 1960 and 1961) could be determined with reasonable and substantial accuracy by using the plaintiff’s cumulative experience, as set forth in finding 16, supra, which showed that on a cumulative basis 58.6 percent of the advances received was refunded and 41.4 percent of the advances was not refunded for the years from 1943 to 1960 and 1961. Mr. Halperin testified that this computation could produce, with reasonable and substantial certainty, the amount of refunds required in a given year, such as 1960 and 1961, because the computation reflected all the actual operating experiences applicable to plaintiff, because the computation was based on a 11- or 18-year period, and because the computation was based on a large number of Rule 42 and 43 contracts (over 200 contracts entered into each year). Mr. Halperin further testified that he had verified the reliability of the data used for 1960 and 1961 by checking with plaintiff’s personnel and by using data from subsequent years which *626showed a higher refund experience than in 1960 and 1961. Mr. Halperin testified that the computation for a reasonable addition to a reserve for bad debts and the computation of the life of easements were examples of computations accepted by the Internal Revenue Service which were similar to the computation of plaintiff’s refund experience, in that cumulative or aggregate data of the taxpayer’s past experience, as opposed to determination on the basis of individual separate items was used in the determination of taxable income. Mr. Halperin cited the determination of the estimated salvage value of am asset and the determination of the cost of an asset purchased for a private annuity payable over the seller’s life as examples of where the taxpayer’s prior experience is used to determine the amount of cost which the taxpayer is allowed to recover through depreciation.

26. Plaintiff’s experience in making refunds of funds advanced by prospective customers for water main extensions establishes that 58.6 percent of the total advances received with respect to such extensions installed during the preceding 10 years may be refunded and that 41.4 percent may become mirefundable by the expiration of their respective 10-year refund periods.

27. Including in the depreciable base of the Rule 42 and 43 assets in controversy, 58.6 percent of the advances received with respect thereto (or including the advances actually repaid by the end of the taxable years in question), the maximum permissible allowances for depreciation which plaintiff would be entitled to claim under section 167 (b) (4) I.R.C. 1954 (using the double declining balance method) are greater than the depreciation allowances actually claimed by plaintiff as depreciation deductions in the taxable years 1960 and 1961 (using its modified straight-line depreciation method).

28. Within the time prescribed by law, the plaintiff filed federal income tax returns for the years 1960 and 1961 with the District Director of Internal Revenue at St. Louis, Missouri, and paid the taxes shown thereon in installments on or before the statutory due dates. Upon audit of these tax returns, the Internal Revenue Service made the adjustments described in finding 21, supra. The plaintiff unsuccessfully *627protested the action of the Internal Revenue Service, and on October 23,1964, the Commissioner assessed additional taxes and deficiency interest as follows:

These amounts totaling $90,471.03 were paid by plaintiff on November 5, 1964.

29. On April 22,1965, claims for refund of federal income taxes and deficiency interest paid for the calendar years 1960 and 1961 in the amounts of $45,564.23 and $44,906.80, respectively, or such other amounts as are legally refundable, were timely filed with the District Director of Internal Revenue, St. Louis, Missouri.

30. By certified mail dated June 16, 1966, the Commissioner of Internal Revenue notified the plaintiff that these claims for refund had been disallowed. Accordingly, the period of limitation on suits for refund embodied in section 6532(a) (1), I.R.C. 1954, does not operate as a bar to this action.

CONCLUSION OE LAW

Based upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and judgment is entered to that effect, with the amount of recovery to be determined in further proceedings pursuant to Rule 131 (c).