Crаnford Delano NEWELL, Petitioner, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.
No. 85-7676
United States Court of Appeals, Ninth Circuit
March 20, 1987
813 F.2d 1259
The nature of a tax is determined by its operation, not by the labels applied to it. Educational Films Corp. v. Ward, 282 U.S. 379, 387, 51 S.Ct. 170, 171, 75 L.Ed. 400 (1931). Moreover, the law of this circuit indicates that the tax in question operates as a tax on incremental revenue, not as an excise tax. We so held in Tenneco West, Inc. v. Marathon Oil Co., 756 F.2d 769, 772-73 (9th Cir.), cert. denied, --- U.S. ---, 106 S.Ct. 134, 88 L.Ed.2d 111 (1985), and we are not free to depart from that holding here. In Tenneco we concluded that the WPT was a tax on the difference between the price of crude oil before decontrol and the price after decontrol, see
The contractors seek to distinguish Tenneco by noting that it dealt with contractual language different from the language in the case before us, but their argument misses the mark. The importance of Tenneco is not its construction of language in a particular contract, but its treatment of the WPT as a tax on incremental revenue and its rejection of the labels “excise” or “severance.”
The contractors would not be able to charge WPT payments to their net profits accounts even if Tenneco were so easily distinguished, for they have not paid the WPT “in proportion to” their contractors’ percentages, as articlе 18 requires. To pay the WPT in proportion to their contractors’ percentages, they would be required to distribute the tax burden as follows: the THUMS companies, which receive eighty percent of the oil, would pay eighty percent of the tax; Pauley, which receives ten percent of the oil, would pay ten percent of the tax; Chevron and Petro-Lewis, each of which receives five percent of the oil, would pay five percent of the tax apiece. As the contractors concede, they have not paid the WPT in this fashion. Nor would it be sensible for them to do sо, for paying the tax in proportion to contractors’ percentages would ignore differences among the contractors, such as size of net income, that have important consеquences under the WPT. See
In sum, our decision in Tenneco, as well as the contractors’ treatment of the tax, indicate that the WPT is not an excise tax that may be charged against net profits accounts. The judgment of the district court is therefore AFFIRMED.
James C. Sargent, Michael J. Maloney, Mark S. Shipow, New York City, for petitioner.
Daniel L. Goelzer, Eric Summergrad, Catherine T. Dixon, Washington, D.C., for respondent.
Before GOODWIN, PREGERSON and HALL, Circuit Judges.
GOODWIN, Circuit Judge:
Cranford D. Newell petitions for reversal оf a Securities and Exchange Commission (SEC) Order denying his motion to dissolve or modify a 1982 Bar Order which prevents him from pursuing certain activities. The sole question is whether his petition for review was timely filed under Section 213(a) of the Investment Adviser‘s Act,
Section 213(a) of the Investment Adviser‘s Act and Section 25(a)(1) of the Securities Exchange Act of 1934, each provide that a party aggrieved by a final order of the SEC may obtain review of the order in the United States Court of Appeals by filing an action “within sixty days after the entry” of the order.1
Newell contends that we should interpret the date of “entry,” under the statutory authorities, as a date other than the caption date of the order. This contention has been raised and addressed in two cases.
In Lile v. SEC, 324 F.2d 772 (9th Cir. 1963), we reviewed a motion to dismiss, based on
In 1964, in response to the criticisms raised in Lile, the SEC amended its rules of prаctice. The new rule clarified the date of an “entry” of a final order and also affirmatively required prompt placement of the order in the public domain. Amended SEC Rule 22(k), codified at
In computing any period of time involving the date of the entry of an order by the Commission, the date of entry shall be (1) the date of the adoption of the order by the Commission, as reflected in the capitоn of the order.... The order shall be available for inspec
tion by the public from and after the date of entry, unless it is a non-public order. (Emphasis added.)
Rule 22(k) solves the notification problem raised in Lile and gives certain meaning to the term “entry.” Although SEC procedures may sometimes delay an individual‘s or the public‘s access to a final order, certainty cannot be served by an “entry” date interpreted other than as the caption date. To hold otherwise would deny the plain meaning and clear intent of the rule.
Medical Committee for Human Rights v. SEC, 432 F.2d 659 (D.C.Cir.1970), vacated for mootness on other grounds, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972), was decided after the amendment to Rule 22(k). The case concerned a petition for rеview of an SEC order which had been filed sixty-six (66) days after a final order had been issued. The court decided that the petition was timely filed despite the statutory sixty-day limit because the petitioner had first been notified of the result by telephone, and was tardily provided with a written copy of the order only after request.
Medical Committee has no direct application here. It cannot be read, as Newell contends, to stand for the proposition that placement of a final order in the public domain or receipt of the order by an aggrieved party is the proper date of “entry” under the statutory аuthorities. In fact, the court took care to distinguish the case before it from a typical case involving the commencement of the statutory appeal period. The court expressly noted that the caption date “entry” rule of Rule 22(k) represents a compromise between Congress and the SEC which strikes a balance “between the need to have Commission orders opеrate with finality, and the aggrieved party‘s need to have both adequate notice ... and sufficient time to prepare his petition.” Medical Committee, 432 F.2d at 665.
We find support for the view that the correct date of “entry” under the statutes is the caption date by recognizing the need for temporal certainty with respect to the commencement of appeal periods. Fairness demands a fixed and cеrtain date of entry and the Rule 22(k) caption date rule provides it. Parties contemplating the filing of a petition from a SEC final order should rely on the date found in the caption of the order. Such timing rules are not unfair. Similar rules govern the commencement of appeal periods for the federal courts. See
Appellant filed this petition for review on December 5, 1985, sixty-three (63) days aftеr the issuance of a final order bearing a caption date of October 3, 1985. As a consequence, this petition was untimely filed and we lack subject matter jurisdiction over the action.
We reserve for decision, if it is ever necessary, the question of a prejudicial delay on the part of the SEC in complying with its own Rule 22(k). The sixty-day period in which to seek review after the date of entry allows fоr normal handling of mail. In this case, the caption date was clear, the time was running and nothing in the record suggests a basis for tolling the time.
Dismissed.
PREGERSON, Circuit Judge, dissenting:
Because I do not agree that the date typed in the caption is necessarily the date of entry under
The statutes instructing that an aggrieved party has sixty days from the datе of entry of an SEC order to petition for review of that order do not define the word “entry.” “Entry” under the statutes is purportedly defined, however, in
The problem with the majority‘s decision is that it upholds the first part of the regulation and ignores the second. Octo
Holding Newell to the date typed in the order‘s caption but not holding the SEC to its obligation to make the order public as of the caption date not only violates the terms of the regulation but also overlooks the message stated in Lile v. Securities Exchange Commission, 324 F.2d 772 (9th Cir. 1963). There we declared that the 60-day period should not сommence until there has been “notice to all the world.” Id. at 773. See Medical Committee for Human Rights v. Securities Exchange Commission, 432 F.2d 659, 664 (D.C.Cir.1970), vacated for mootness on other grounds, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972) (suggesting that the 60-day period does not begin until “written information regarding the basis of the decision was available.“).
I suggest that a fairer interpretation of
Notes
Section 25(a)(1) provides:Any person or party aggrieved by an order ... may obtain a review of such order in the United States court of appeals within any circuit ... by filing in such court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or set aside in whole or in part.
15 U.S.C. § 80b-13(a) (emphasis added).
A person aggrieved by a final order of the Commission ... may obtain review of the order in the United States Court of Appeals ... by filing in such court, within sixty days after the entry of the order, a written petition requesting that the order be modified or set aside in whole or in part.
15 U.S.C. § 78y(a)(1) (emphasis added).