161 F. Supp. 580 | Ct. Cl. | 1958
Lead Opinion
delivered the opinion of the court:
The plaintiff, an operator of a retail department store, claims that it overpaid income and excess profits' taxes in the amount of $834,469.11 for its fiscal years ending on January 31 of each of the years 1942 to 1947. The basis of its claim is that it was entitled to, but was denied, the privilege ac
The privilege of section 22 (d) (6) (A) was granted only to taxpayers who used the “last in, first out” (LIFO) method of taking their inventories. In 1942 the LIFO method was still a fairly recent discovery of the accounting profession. Its advantage was that it showed whether the merchant was currently making any profit on his sales, considering the current cost of replacement of the goods sold. Under the older first in, first out method, he might be making a profit only because he was selling goods which he had earlier bought at a price below the now current price, or having a loss because the earlier bought goods had cost more than the now current price.
The plaintiff, at the end of its fiscal year 1942, took its inventory by the LIFO method. Its reason for doing so was not a tax reason, but the business reason referred to above. In fact, at that time, and until 1948 the Commissioner of Internal Bevenue was refusing to approve tax returns of department stores based on LIFO inventories. The plaintiff nevertheless made its returns on that basis for each of the years here in question, and the Commissioner entered into agreements with the plaintiff, for each of those years, extending the time for assessment of taxes, thus keeping the question open. In all those returns, the plaintiff’s inventories were on a store-wide basis, and were not broken down into departments or groups of departments. In 1947 the Tax Court of the United States, in the case of Hutzler Brothers Co. v. Commissioner, 8 T. C. 14, held that department stores were entitled to use the LIFO method. The Commissioner in 1948 acquiesced in that decision and changed his regulations to provide expressly how taxpayers using that method should make their inventories.
As pointed out at the outset, the plaintiff claims that it should have been accorded the benefits of section 22 (d) (6) (A) of the Internal Revenue Code of 1939. Its amended returns filed in 1948 showed that in some of its inventory divisions, i. e. groups of departments, in each of the years, there had been “involuntary liquidation,” i. e. the unit had not been able, because of the scarcity of certain goods, to keep its stock of goods up to normal. If that fact had appeared on its original returns, as filed for each of the years, it would have had the privilege of electing, if it thought it advantageous, to accept the privilege accorded by section22 (d) (6) (A).
In making that election, the plaintiff would have had to predict whether, when it would be able to refill its depleted inventories, the cost of the replacement of goods would be more, or less, than the cost of such goods in the year in which the election was made. If the prediction had been that the cost would be greater, it would have been wise to elect to take advantage of section 22 (d) (6) (A), since the greater future costs of replacement, carried back into the year of depletion of stocks, would increase the cost of goods sold and thus reduce the taxable profits for that year. If, having elected in a given year to use section 22 (d) (6) (A), it should turn out that prices later went down, the taxes for the year of election would be increased.
As noted above, the plaintiff’s returns, filed at the end of each of the years in question, and computing profits on
When, in 1948, the plaintiff filed amended returns for all the years in question, which returns used LIFO inventories based on departments rather than on the store as a whole, those returns, as stated above, showed “involuntary liquidations” in some of its departments in each of the years, and by that time it was apparent that, since prices had risen from year to year throughout the period, it would have been advantageous to the plaintiff to have had the benefit of section 22 (d) (6) (A). But it could not then, in 1948, make the election, because the section as it then stood required that the taxpayer make its election at the time it filed its return, and the plaintiff’s original returns had been filed in each of the years before 1948.
In 1950 Congress by Public Law 756, 81st Congress, 64 Stat. 592, amended section 22 (d) (6) (A). It changed the requirement that the election must be 'made at the time of the return, and said it might be made
at such time and in such manner and subject to such regulations as the Commissioner * * * may prescribe, * * *.
An important feature of the amendment was that it was retroactive. It was made applicable to any taxable year beginning after December 31, 1940 and before January 1, 1948.
The Commissioner in 1951 amended the regulation applicable to section 22 (d) (6) (A) to make it provide that the election under the section might be made within 6 months after filing the return for the year in which the liquidation occurred. This regulation, taken by itself, would have nullified the retroactivity of the amendment to the statute. However, there was in effect a general regulation to the effect that in any case where an election by a taxpayer is
The plaintiff says that (1) the Commissioner’s six months regulation was invalid because it nullified the statute and (2) even if the regulation was valid, the Commissioner’s action in refusing to extend the plaintiff’s time for election under the general regulation referred to above was arbitrary and capricious.
If Congress by its 1950 amendment intended to re-open all the “involuntary liquidation” situations clear back to 1940, then the Commissioner’s six months’ regulation was contradictory to the statute, as the plaintiff urges. That Congress did not so intend seems clear both from the text of the statute and from its legislative history. The statute placed with the Commissioner the power to determine when the election had to be made. If it had intended to reopen all involuntary liquidation situations, it would merely have set the time for election at some date after the enactment of the statute in 1950. The committee reports spoke of the Commissioner’s power to relieve hardships. The intent of Congress was, then, that the Commissioner should, by regulations and action under them, relieve hardships.
As section 22 (d) (6) (A) stood before the 1950 amendment, the Commissioner had no power to extend the time for making the election. The statute said the election must be made at the time the return was filed, and that ended it. But the 1950 amendment and the six months’ regulation brought the situation within the terms of the general regulation reserving to the Commissioner the power to extend the time for making any election.
The plaintiff’s case, then, must rest upon its claim that the Commissioner was arbitrary in not extending the plaintiff’s time for making its election. Congress would not have intended that the Commissioner could, without reason or policy, extend or refuse to extend the time of election for individual taxpayers. A grant of such an arbitrary power to an executive officer is not to be assumed. If then, the statute was not to be, on the one hand, a grant of arbitrary power to the Commissioner, or, on the other hand, a nullity, Congress must have had some idea of what would be a hard
Present law provides that, in order to have the advantage of such a tax recomputation, the taxpayer must elect to have these provisions apply “at the time of the filing of the taxpayer’s income-tax return” for the year in which the inventory liquidation occurred. However, in some cases taxpayers did not know, at the time the return was filed, that it would be to their advantage to make such an election. For example, there are cases where, at the time of a subsequent investigation of the return, Government agents home segregated into two groups or classes an inventory which the taxpayer considered as consisting of only, one class of items. As a result of this segregation it is now held that a liquidation of the inventory of one class of items occurred, although there was no decrease in the number of both classes combined. It is held that, not having made a timely election, the taxpayer cannot apply the excess cost of replacing these items in a subsequent year to reduce the tax for the year in which the liquidation occurred. [Italics supplied.] [S. Rep. 2366, 81st Cong., 2d sess.]
As shown in finding 20, the Commissioner, in administering the amended statute, gave relief to a rope manufacturing company which, in its returns, showed a single inventory of fiber including both manila and sisal. This inventory showed no “involuntary liquidation” hence the taxpayer could not have, and did not, claim the benefits of section 22 (d) (6) (A). The Commissioner, upon examining the return, established separate inventories for manila and sisal, and the manila inventory showed an involuntary liquidation. The taxpayer claimed the benefits of section 22 (d) (6) (A). The Commissioner concluded that it was a hardship case, extended the time for making the election, and granted relief.
The plaintiff says that its situation is like that of the rope manufacturer, and is covered by the thought expressed in the committee reports. It used a store-wide inventory which showed no involuntary liquidation except in the year 1943; it was required by the Commissioner to break down its inventory according to departments; the breakdown showed
The Government says that if the plaintiff gets relief, it gets the benefit of hindsight, which a taxpayer whose current returns showed involuntary liquidations did not get. Those taxpayers, in electing, had to take the chance of whether future prices would go up or down. The plaintiff, in electing in 1951, took no chances. It knew just what had happened to prices in the years in question.
Congress must have known, when it passed the 1950 amendment, retroactive to 1940, that anyone who got any benefit from the amendment would have, when he made his election, the benefit of hindsight. The rope manufacturer who was granted relief by the Commissioner, of course, had the benefit of hindsight. If prices had not gone up in the meantime, he would not have asked for relief. There is nothing in the hindsight argument, if the amendment was to have any effect at all.
The Government says that the plaintiff knew, during all the years in question, what the trend of prices was in its different departments, although it was filing its returns on a store-wide basis. It says that the plaintiff had in its hands trade publications showing the percentages by which prices in the various departments of a department store had increased, and must have known that if it had broken down its inventory by departments, some departments would have shown involuntary liquidations. It will be remembered that during these years the Commissioner was taking the position that department stores could not use LIFO at all, whether store-wide or by departments. That being so, there was no reason why the plaintiff should make its original returns on a departmental basis, though the Commissioner ultimately, in 1948, required it to do so. The fact that the trend of prices, by departments, would be and was well known to a prudent storekeeper would not tell him whether the stock of goods in a particular department was depleted to the point of an involuntary liquidation, when he was making his inventory on a store-wide basis.
The Government says that it is apparent that the plaintiff, until it had the benefit of the hindsight available to it
At the hearing before a trial commissioner of this court, testimony was limited to the issue of whether or not the plaintiff is entitled to relief, as provided for by Public Law 756, 81st Cong., 64 Stat. 592, which amended section 22 (d) (6) (A), supra; that is to say, whether the plaintiff’s elections to invoke the provisions of section 22 (d) (6) (A), supra, were filed within time. The extent of any involuntary liquidations within the meaning of section 22 (d) (6) (A) was reserved for later determination under Pule 38 (c) of this court.
Plaintiff is entitled to recover for the years 1942, 1944, 1945, 1946, 1947 and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Pule 38 (c) of the Pules of this Court.
It is so ordered.
Dissenting Opinion
dissenting:
Plaintiff sues to recover an alleged overpayment of income, declared value excess profits, and excess profits taxes
Plaintiff alleges that the Commissioner of Internal Revenue unlawfully deprived it of its right to elect to value its inventories for each of the taxable years on the basis of the replacement cost of the items therein, which had been liquidated involuntarily during each of the taxable years, as authorized by section 22 (d) (6) of the Revenue Act of 1939, as amended.
The Internal Revenue Act of 1939, before it was amended on September 5, 1950, by' Public Law 756, supra, provided that where items in a taxpayer’s inventory had not been replaced because of its inability to do so, the taxpayer might elect to value them on the basis of the cost of replacement, if they were actually replaced in a later year and prior to 1951. However, this election had to be made at the time of the filing of the taxpayer’s original return.
When plaintiff filed its returns it did not make an election to use replacement costs, because it says its then method of taking its inventory did not disclose any involuntary liquidation during any of the taxable years, except the year 1943. As to this year, although involuntary liquidations were disclosed, plaintiff says it did not make the election, because it did not think it would be to its advantage to do so.
But after the passage of Public Law 756, plaintiff did make an election to value its inventories on the basis of replacement cost of the items as to which there had been an involuntary liquidation. It contends that it made this election within the time contemplated by Public Law 756. The defendant contends that it did not.
Public Law 756 was passed long after the close of each of the taxable years in question. It nevertheless permitted a taxpayer to elect to use replacement cost in valuing its inventories for any taxable year “beginning after December 31, 1940, and prior to January 1, 1948.” It was, therefore, applicable to the taxable years in question. However, this election had to be made “at such time and in such manner and subject to such regulations as the Commissioner with the approval of the Secretary may prescribe.”
The taxpayer alleges (1) that the Commissioner’s regulation, as applied to a case such as taxpayer’s, is invalid, because contrary to the legislative intent expressed in Public Law 756; and (2) that the Commissioner’s denial of plaintiff’s request for an extension of time was arbitrary, and defeated the legislative intent as expressed in Public Law 756. That legislative intent, plaintiff says, was to relieve a taxpayer who had been deprived of the privilege of making the required election when it filed its original return. It says that its case comes within the situations which the committee reports show Congress intended to take care of.
The report of the Senate Finance Committee, which is substantially the same as the report of the House Ways and Means Committee, does show that Public Law 756 was intended to relieve taxpayers of a hardship which they may have suffered from the requirement of making an election at the time of the filing of the original return. As an illustration of the hardship which Public Law 756 was intended to correct, the Senate Committee report states:
* * * However, in some cases taxpayers did not know, at the time the return was filed, that it would be to their advantage to make such an election. For example, there are cases where, at the time of a subsequent investigation of the return, Government agents have segregated into two groups or classes an inventory which the taxpayer considered as consisting of only one class of items. As a result of this segregation it is now held that a liquidation of the inventory of one class of items occurred, although there was no decrease in the number of both classes combined. It is held that, not having made a timely election, the taxpayer cannot apply the excess cost of replacing these items in a subsequent year to re*462 duce the tax for the year in wbiich the liquidation occurred.
This bill provides that the taxpayer can make the required election “at such time and in such manner and subject to such regulations as the Commissioner with the approval of the Secretary may prescribe.” Since the amendment is retroactive to taxable years beginning after December 31, 1940, the Commissioner of Internal Revenue can provide relief in any case which appears to involve hardship. [S. Rep. 2366, 81st Cong., 2d Sess. See also H. Rep. No. 2756, 81st Cong., 2d Sess.]
Plaintiff says that its method of taking its inventory did not disclose any involuntary liquidations of items in its inventory, and that it did not discover that there had been such liquidations until after it had taken its inventory in accordance with the regulations of the Commissioner of Internal Revenue, which had been adopted after the decision in Hutzler Brothers Co., v. Commissioner, 8 T. C. 14. These regulations required that inventories of department stores using the LIFO (last in first out) method should be taken on a departmental, instead of on a storewide basis. Before the promulgation of the regulations, plaintiff had taken its inventories on a storewide basis. This method, it says, did not disclose involuntary liquidations, because liquidations in some departments were offset by increases in others. Its ignorance of the fact of involuntary liquidations, it says, excuses it for not having made the elections at the time it filed its returns, and that Public Law 756, supra, entitled it to make the elections at the time it did, which was in 1951.
When plaintiff filed its original returns, it did not have the benefit of any regulations of the Commissioner of Internal Revenue respecting the taking by department stores of inventories on the LIFO method, because, during all of the taxable years in question, the Commissioner of Internal Revenue took the position that a retail department store was not entitled to take its inventories on the LIFO basis. However, the Tax Court in Hutzler Brothers Company v. Commissioner, supra, in January 1947, held that the Commissioner’s position was erroneous, and that a retail department store was entitled to take its inventory on this
Not having the benefit of any regulations by the Commissioner of Internal Revenue governing the taking of an inventory by a department store on the LIFO basis, plaintiff was obliged to use its own judgment on how to take it. It adopted the Fairchild Total Store Price Index, and took its inventory on a storewide basis. This disclosed a liquidation only in 1943, as stated hereinbefore.
When the Commissioner of Internal Revenue amended his regulations permitting a retail department store to use the LIFO method, he required it to take its inventory, not on a storewide basis, as the taxpayer had done, but on a departmental basis, and he further required it to use the Bureau of Labor Index, instead of the Fairchild Total Store Retail Price Index, which taxpayer had used.
The Fairchild Total Store Retail Price Index applied the same percentage of increase or decrease to all items in the inventory for the entire store, whether they were cosmetics, carpets, alarm clocks, or what-not. The Bureau’s regulations required the use of an index for each department or group of departments of the store, and it required the use of the Bureau of Labor Index, or an acceptable index prepared by taxpayer, rather than the Fairchild Index.
After the Commissioner of Internal Revenue had issued his regulations on March 4, 1948, permitting inventories on the LIFO method, the taxpayer recomputed its inventory. Then, for the first time, it says, it discovered that there had been involuntary liquidations. However, it did not at that time elect to use replacement cost in valuing the items as to which there had been involuntary liquidations, because, it says, under the law as it then was, the time for the making of this election had long since expired, the law at that time requiring that the election be made when the original return was filed.
Hence, this taxpayer says it never knew there had been involuntary liquidations as to certain items in its inventory until long after the time had expired within which it was permitted to make an election to use replacement costs. It says
However, the Commissioner’s regulations issued under this law required the making of an election six months after the return had been filed. Since this time had long since run as to all the returns, the taxpayer filed an application for an extension of time, as it was entitled to do under the regulations. This was done on August 8, 1951, which was about two and one-half months after the issuance of the Commisisoner’s regulations. This request for an extension of time was denied. Plaintiff says it was entitled to the extension as a matter of law.
Public Law 756 was not intended to give all taxpayers the right to make an election to use replacement cost. It provided that the election should be made “at such time and in such manner and subject to such regulations as the Commissioner with the approval of the Secretary may prescribe.” Under this provision, large discretion was undoubtedly vested in the Commissioner in prescribing the circumstances under which tñe taxpayer might make such an election, but this discretion, of course, had to be exercised by the Commissioner reasonably, and in such way as to carry out the intent of Congress in the passage of Public Law 756 — certainly not in a way to thwart that intent.
I am of opinion that regulations requiring the making of an election at a time long since passed when the regulation was promulgated did thwart the will of Congress. But the regulations provided for the granting of an extension of time, upon application of a taxpayer. If the extension was granted, so as to permit the making of the election, of course such a taxpayer could not complain of the unreasonableness of the regulation. It is only those taxpayers who were entitled to an extension and who were denied it who can complain. Those taxpayers who were entitled to an extension were those taxpayers who were entitled to make the election. The question then is: Was the plaintiff entitled to make the election after the passage of Public Law 756?
As the Senate Keport shows, the law was intended to give the Commissioner of Internal Revenue authority to give
If plaintiff, through no fault of its own, had been unable to discover the involuntary liquidations until after the Commissioner of Internal Revenue had amended his regulations in 1948, then I think plaintiff would present a case of hardship ; but such is not the case.
Prior to the fiscal year ending January 31, 1942, plaintiff had taken its inventories on a departmental basis, using the FIFO (first in first out) method. But in this year it determined to use the LIFO method and to take its inventories on a storewide basis, instead of a departmental basis. Such an inventory disclosed no involuntary liquidations. Although there had been involuntary liquidations in some departments, these liquidations were offset by increases in others. For this reason plaintiff did not know that there had been involuntary liquidations, and, hence, it says there was no occasion for it to make an election to value its inventories on replacement cost. .
However, at the time plaintiff adopted the storewide basis, and the use of the Fairchild Index, there was then available to it the index prepared by the National Industrial Conference Board, which had been prepared at the direction of the National Retail Dry Goods Association, to which association plaintiff belonged. This index was prepared on a departmental basis, and showed price changes by separate departments for a typical department store. Had this index been used, it would have disclosed involuntary liquidations in some of the departments of the store.
Since this index was available to plaintiff at the time it filed its income tax returns for each of the taxable years in question, and at the time it changed to the LIFO method of valuing its inventories, and since it would have disclosed involuntary liquidations, it was possible for plaintiff to have discovered whether or not there had been involuntary liquidations in any of its departments. In order to shift from the FIFO to the LIFO method, plaintiff was not obliged to abandon its former method of taking its inventories by departments and shift to the storewide inventory. Had it not done so, it would have discovered the involuntary liqui
This shifting was not forced on plaintiff; it was its own voluntary act. Had it made this discovery, it would then have been under the obligation to decide whether or not to make an election to value liquidated items at replacement cost, and to make this election when it filed its returns.
• Hence, plaintiff’s ignorance of the fact that there had been involuntary liquidations was due to its own choice in adopting the Fairchild Total Store Retail Price Index, instead of the departmental index prepared by the National Industrial Conference Board at the instance of the National Retail Dry Goods Association.
For this, no one is responsible except the plaintiff. The Commissioner of Internal Revenue had nothing to do with its making this selection. The Commissioner was then taking the position, it is true, that a retail drygoods store was not entitled to use the LIFO method at all. This was erroneous, of course, but it had nothing to do with plaintiff’s decision to use the Fairchild Total Store Retail Price Index, instead of a departmental index prepared by the National Industrial Conference Board.
2. When plaintiff took its inventory for the fiscal year ending January 31, 1943, involuntary liquidations were disclosed, even on the basis of taking the inventory on a store-wide basis; but plaintiff did not then make the election to value its inventories on the basis of replacement cost. Certainly it was under the obligation to make this election as to this particular year when it filed its returns for that year. Plaintiff says it was not then obliged to make the election because it did not then know that it would be to its advantage to do so. This is no excuse. No taxpayer could be certain whether or not it would turn out to be to its advantage to elect to value its inventory on the basis of replacement cost. Whether or not it would be to its advantage depended upon whether prices in the future rose or fell. If they rose, it would be to its advantage; if they fell, it would be to its disadvantage. This was a risk every
Public Law 756 was not intended to give taxpayers the benefit of hindsight; it was only intended to relieve them from a hardship, for which they were not responsible, a hardship which prevented them from making the election at the time of filing their returns.
3. At the time plaintiff filed its amended returns under the regulation promulgated by the Commissioner of Internal Eevenue, after the decision of the Tax Court in Hutzler Brothers Company v. Commissioner, supra, it then discovered that there had been involuntary liquidations in some of its departments, but at that time it did not undertake to elect to value its inventory on a replacement basis. It says it did not, because the law then in force required that this election be made when the original return was filed. However, it would seem that since the Commissioner of Internal Eevenue did not recognize the right of a taxpayer to take its inventory on a LIFO basis when plaintiff filed its original returns, plaintiff might well have taken the position in its amended returns that it was then entitled to make the election; but it did not do so. I do not mean to say the plaintiff was entitled to do so, but that it would have been plausible for plaintiff to have urged that it was. Other department stores did so. See Louis Pizitz Dry Goods Co. v. Deal, 208 F. 2d 724.
At the same time plaintiff filed these amended returns for 1942 to 1947, inclusive, it also filed its original return for the fiscal year ending in 1948. This return showed very large involuntary liquidations, but plaintiff did not, as to this year, elect to value the liquidated items on a replacement basis.
From its failure to make the election as to 1943, for its failure to do so when it filed its amended returns, and also when it filed its return for 1948 — from this it would appear that plaintiff never intended to make this election; that
I am of opinion that Public Law 756 did not give plaintiff the right to make an election to use replacement costs, under all the circumstances of this case. See Huron Milling Co. v. United States, 131 C. Cls. 733.
I would dismiss plaintiff’s petition.
FINDINGS OF FACT
The court, having considered the evidence, the report of Commissioner George H. Foster, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiff is a Pennsylvania Corporation engaged in the operation of a retail department store in Pittsburgh during all times involved in this case.
2. Plaintiff kept its books and filed its Federal income returns on the accrual method of accounting for fiscal years ending January 31. ■ In computing the cost of goods sold, it used the retail method for valuating inventories.
Generally, the retail inventory method consists of recording the costs of the opening inventory, the purchases for a department or a group of departments, and the retail values at which the goods are to be sold. The departmental percentage of markup is then computed. The sum of the retail value of the beginning inventory plus the retail value of purchases is then reduced by the amount of sales to arrive at the retail value of the ending inventory. This amount is verified by a physical inventory which is priced at retail. This ending inventory is then reduced to cost by, in effect, subtracting from the retail value the markup previously determined. The sum of the opening inventory at cost, plus purchases at cost, less the closing inventory at cost, results in the cost of goods sold for the period. This method results in the taxpayer’s having its inventory stated in dollar amounts without the assignment of cost to any specific item. The inventory shows that the taxpayer has a certain dollar
The LIFO method of inventory valuation can be used with the retail inventory method instead of FIFO. The LIFO method assumes that the last goods purchased are the first ones sold, and therefore the goods left in the inventory at the end of the year are assumed to be those first purchased. Therefore, the cost of the goods sold is assumed to be the cost of the last goods purchased and the cost of goods remaining in the inventory is assumed to be the cost of those first purchased.
The retail inventory method may be illustrated by the following example of a men’s furnishings department:
The composition of the ending inventory of $512 as between shirts, neckties, socks, underwear, etc., and the cost of the respective items would be unknown. All that is known is that the total cost of the men’s furnishings department inventory is $512.
3. Under ordinary inventory procedure, in cases other than retailers, detailed cost accounts of the individual items purchased are made.. A physical inventory showing quantities is taken periodically and the cost of the known items on hand is ascertained. For this purpose, if the articles in the inventory have become so intermingled that the cost of specific goods cannot be ascertained, it is assumed that the goods sold were those first acquired. This is known as the first-in-first-out method of inventory valuation, sometimes called FIFO.
Where there are voluminous purchases and sales of a great variety of items, as in department stores, it is impracticable, if not impossible to follow the ordinary procedures. For this reason the retail method of inventory valuation was adopted and its practice was approved by the Commissioner of Internal Revenue.
4. For the year ending January 31, 1941, plaintiff filed its returns on the retail method of inventory valuation, employing the first-in-first-out method of ascertaining the cost of goods in inventory.
Prior to filing the return for the year ending January 31, 1942, plaintiff’s officers discussed among themselves and with their accounting advisers the question of adopting the so-called LIFO method of inventory valuation.
The officials of plaintiff were as much, if not more, interested in this method from the standpoint of stating the profits of the company. They contemplated it for reporting the financial position of the company even if it would not be acceptable to the Commissioner of Internal Revenue.
One difficulty with the transition to such a valuation method was the necessity of having an index of prices, measuring the price changes, with which to convert retail prices for the year to the prices prevailing at the assumed earlier date of acquisition.
In the case of those not on a retail method, the transition was relatively simple.
At the time when the plaintiff filed its original return for the said fiscal years 1942 to 1947, inclusive, and until 1948, when the Commissioner amended his regulations, he was erroneously maintaining by regulations and practice the position that the LIFO method could not be used by department stores and others using the retail inventory method. There were no regulations or rulings prescribing procedures or standards to be followed by such taxpayers in computing their inventory valuations under the LIFO method.
The Fairchild Total Store Eetail Price Index from November, 1940, through July, 1947, is as follows:
The National Eetail Drygoods Association’s report of March 16,1942 states in part as follows:
The following report indicates that retail prices, weighted by the quantity of inventory holdings of a typical department store, advanced by 15.75 per cent from January 31, 1941 to January 31, 1942. The rise was general throughout all departments covered by the analysis, and ranged from an increase of only 2.88 per cent in the toilet articles and drug department to a rise of 34.35 percent in the wash goods and linings section of the piece goods department.
* * * ‡ *
A table of average price changes from January 31, 1941 to January 31, 1942 in each of the major departments of a typical department store is as follows:
*472 INDEXES OF CHANGE IN RETAIL PRICES, BY DEPARTMENTS
6. Plaintiff decided to make its financial statements and tax return on the LIFO method. Although the company’s inventory was based on some 165 department pools of goods, it used the Fairchild Index which was adapted for use on a single-pool or a store-wide basis. Around the middle of April 1942 plaintiff issued its financial statements to its stockholders and others. It closed its books for the fiscal year ending January 31,1942, in the week preceding February 22, 1942. This was done in order to pay its bonuses on February 22, when plaintiff closed its books and made its
The decision to employ LIFO also required the use of an index for the opening inventory. The Fairchild Index of December 31,1940, covered plaintiff’s categories most closely and that is the one plaintiff used.
7. On May 15, 1942, pursuant to an extension of time granted, plaintiff filed its returns for the year ended January 31,1942, based on LIFO and the Fairchild Index together with requisite election to use such inventory valuation method. The returns for 1943 to and including 1947 were filed on the same basis. For each year the Commissioner of Internal Bevenue rejected the LIFO basis and adjusted the taxes accordingly. With respect to each of these years, plaintiff and the Commissioner entered into agreements whereby the period of assessment of income and excess profits taxes for each of the years was extended to and including June 30, 1951.
8. The returns for 1942 to 1947 based on the index used disclosed a liquidation of inventory for the year 1943, part of which liquidation was in part replaced in each of the years 1944, 1945, and 1946. In the year 1947, a total replacement had been accomplished. When the 1943 liquidation was disclosed, plaintiff ,did not elect the involuntary liquidation and replacement provisions of Sec. 22 (d) (6) as provided in the 1942 amendment. (Sec. 119, Act of October 21,1942, 56 Stat. 814.) Plaintiff was aware of the provisions but did not elect to use them because no liquidation had been disclosed for the year 1942 and substantially all of the liquidation in 1943 consisted of relatively high-cost additions to inventory during the fiscal year 1942 when the Fairchild Index was at a high level. When the 1943 return was filed in June 1943, the Fairchild Index had remained approximately level for a period of over a year; 113.1 from June 1942 to February 1943, and 113.2 for March and April 1943, and it had declined for May and June to 113.0. After con-
9. On January 14, 1947, the Tax Court of the United States in Hutzler Brothers Company, 8 T. C. 14, decided that the Commissioner was wrong in denying the use of the LIFO method to those using the retail inventory method, but the court left for administrative determination the details of how that method was to be employed by retail department stores. Thereafter, on March 4,1948, the Commissioner accepted that decision and amended his regulations to permit retailers to use the LIFO method. (T. D. 5605.) Thereafter and prior to June 1948, the Commissioner for the first time promulgated the procedures to be followed by retailers using the LIFO method and announced that the retail price index, newly constructed by the Bureau of Labor Statistics, would be acceptable. He also disclosed what inventory group classifications he would accept. Before such promulgation, it was impossible to know what the Commissioner’s requirements in these respects would be.
10. Under the regulations prescribed in 1948, the Commissioner required the plaintiff, as a condition to its using the LIFO method, to recompute its LIFO inventory valuations for its fiscal years 1942 to 1947, inclusive, using departmental pools rather than a single store-wide pool, and using, instead of the Fairchild Index, either the Bureau of Labor Statistics departmental indices, newly prepared for that purpose by the United States Bureau of Labor Statistics, or departmental price indices, based upon its own data on prices and inventory quantities if it was able to prepare them to the Commissioner’s satisfaction. Accordingly, the plaintiff made such recomputations, using the Bureau of Labor Statistics departmental price indices applied to departmental pools. The index by the Bureau of Labor Statistics discloses the following:
*475 
II. On August 17,1948, plaintiff amended returns for the years 1942 to 1947, based on an index prepared by the Bureau of Labor Statistics, which index was approved by the Commissioner of Internal Bevenue. These returns employed the LIFO method on a departmental basis. Upon audit of the amended returns, the Commissioner of Internal K'evenue allowed plaintiff to use the LIFO method and approved the recomputations. As the result of this, refunds were made to plaintiff. Although these amended returns showed involuntary liquidations, plaintiff did not undertake to elect to value such items on the basis of the cost of replacement.
At the time the amended returns for years 1942-1947 were filed, plaintiff also prepared its 1948 return. On the basis used there was a liquidation disclosed for the year 1948 and plaintiff did not elect the involuntary liquidation and replacement provisions.
12. Because the LIFO recomputations made by the plaintiff in 1948 revealed a liquidation for fiscal 1942, the identification of the goods liquidated in 1943 was affected. The 1943 liquidation was changed from a single store-wide liquidation consisting primarily of high-cost 1942 inventory additions to a larger aggregate of departmental liquidations consisting to a much greater extent of low-cost inventory additions acquired prior to fiscal 1942.
The Bureau of Labor Statistics departmental indices, which the plaintiff used in making its 1948 recomputations,
13.Under these LIFO recomputations approved by the Commissioner, the plaintiff incurred the following liquidations in certain of its departmental inventories in each of the fiscal years 1942 to 1947, inclusive:
A material part of such liquidations was involuntary within the meaning of Section 22 (d) (6) of the Internal Revenue Code of 1939, as amended.
14. When it filed its amended returns in 1948 for its fiscal years 1942 to 1947, inclusive, the plaintiff did not attempt to elect to invoke the involuntary liquidation and replacement provisions of Section 22 (d) (6) because it was advised by its counsel and by Price Waterhouse & Co., and believed, that the time for making such an election had already expired in view of the then existing statutory provision which required that the election be made at the time of filing the original returns.
The Commissioner of Internal Revenue on May 22, 1951, amended Section 19.22 (d)-7 of Regulations 103 and Section 29.22 (d)-7 of Regulations 111 to require that such elections be filed not later than six months after the time of filing the return for the year in which the liquidation occurred. The amended regulations further provided that taxpayers might seek extensions of time for filing such elections under subpart H of Regulations 111.
15. On August 8,1951, the plaintiff filed with the Commissioner under Section 22 (d) (6) (A), as amended, and under
16. The elections filed by the plaintiff consisted of a separate election with respect to each of its fiscal years ended January 31,1942, to 1947, inclusive, in the form of that filed for the fiscal year ended January 31,1942, as follows:
Joseph Horne Co.
PITTSBURGH, PA.
ELECTION UNDER SECTION 22 (d) (6) (A) WITH RESPECT TO INVOLUNTARY LIQUIDATION OP INVENTORIES DURING THE PISCAL YEAR ENDING 31, 1942
The Taxpayer hereby elects to invoke the involuntary liquidation and replacement provisions of Section 22 (d) (6) (A) of the Internal Revenue Code with respect to the liquidation of inventories which occurred during the fiscal year ending January 31, 1942. The inventory groups in which the quantities on hand at the end of the year are less than at the beginning, and with respect to which an election is hereby made, together with amount of liquidation and the extent of replacement, are set forth on attached Exhibit A.
The taxpayer intends to replace the inventory quantities involuntarily liquidated, to the extent not already replaced, not later than the expiration of its last taxable year ending prior to January 1,1953. The taxpayer was unable to maintain its inventory quantities during the fiscal year ending January 31, 1942, as a result of the abnormal circumstances then ■ existing in its industry, which are a matter of common knowledge.
This election is made pursuant to an extension of tima sought under Subpart H.
*478 Exhibit A
Fiscal Tear Ending January 31, 1942
Attached to these elections were schedules showing for each fiscal year the amount of liquidation by department, the extent to which such liquidation had been replaced and the fiscal year in which such replacement had occurred.
17. By a letter dated August 8,1951, which was filed with the elections and by a supplemental letter dated August 27, 1951, both addressed to the Commissioner of Internal Revenue, the plaintiff requested, under subpart H of Regulations 111, an extension of time within which to make the elections. These letters set forth the facts and circumstances upon which the plaintiff relied as justifying its request for an extension of time and its request that the Commissioner receive its elections as timely filed under Public Law 756.
18. The letter of August 8, 1951, reads as follows:
*479 Pursuant to the provisions of Section 29.22 (d)-7 of Income Tax Regulations 111, as amended by Treasury Decision 5841, dated May 22, 1951, the taxpayer respectfully requests an extension of time as provided t)y Subpart H of Regulations 111 in which to elect to invoke the involuntary liquidation and replacement provisions of Section 22 (d) (6) (A) of_ the Internal Revenue Code with respect to inventories liquidated during the taxable years ending January 31, 1942_ to January 31, 1948, inclusive. The elections for which an extension of time is requested are enclosed herewith.
The circumstances upon which the taxpayer relies as justifying its request for an extension of time are as follows:
The taxpayer elected to adopt the “last-in, first-out” (elective) method of valuing a majority of its merchandise inventories in its federal income tax return for the year ending January 31, 1942, and has consistently used this method in all subsequent years. In its returns for the years ending January 31, 1942 to January 31, 1947, inclusive, the taxpayer determined cost of inventories under the elective methods on a store-wide basis by use of the Fairchild Retail Price Index. All merchandise inventories to which the elective method was applied were grouped into one large store-wide pool, and the Fairchild Index was applied against this single pool.
As a result of procedures established in the case of Hutzler Brothers Company v. Commissioner (8 TC 14, January 14, 1947), and prescribed by amendments to Regulations 103 and 111 by Treasury Decision 5605 of March 4, 1948, the taxpayer was required to recompute the cost of inventories under the elective method on a departmental basis using price indices acceptable to the Bureau of Internal Revenue. The taxpayer elected to use those prepared by the United States Bureau of Labor Statistics.
Recomputations were made, and amended returns and claims for refund filed, for the years ending January 31, 1942, to January 31, 1947, inclusive. The taxpayer’s return for the year ending January 31, 1948, was filed on this basis.
The recomputations revealed liquidations of inventories during the years ending January 31, 1942, to January 31, 1948, inclusive, the details of which are set forth in the enclosed elections. The taxpayer was barred from electing to invoke the involuntary liquida*480 tion and replacement provisions of the Code by the requirement of the then existent Regulations 111 that such election must be made at the time of filing the return for the year of liquidation.
As a result of amendments to Section 22 (d) (6) (A) of the Code made by P. L. 756, 81st Congress (H. R. 8278), approved September 5,1950, and of amendments to Section 29.22 (d)-7 of Eegulations 111 made by T. D. 5841, approved May 22,1951, the taxpayer believes that it is entitled to an extension of time in which to make the elections described in the preceding paragraph.
19. The letter of August 27, 1951, reads as follows:
In accordance with your request for information in addition to that contained in our letter to you of August 8, 1951, requesting an extension of time in which to elect to invoke the involuntary liquidation and replacement provisions of Section 22 (d) (6) (A) of the Internal Revenue Code with respect to inventories liquidated during the taxable years ending January 31, 1942, to January 31, 1948, inclusive, the following is submitted:
Prior to the year ending January 31, 1942, the taxpayer valued its merchandise inventories at the lower of cost or market, as determined by the retail inventory method applied departmentally. In its federal income tax return for the year ending January 31, 1942, the taxpayer elected to adopt the last-in, first-out (elective) method of valuing a majority of its merchandise inventories. All merchandise inventories to which the elective method was applied were grouped into one large store-wide pool, and the Fairchild Retail Price Index was applied against this single pool. This method was consistently followed by the taxpayer in its returns for the years ending January 31,1942, to January 31, 1947, inclusive.
This method revealed no liquidations except during the year ending January 31, 1943, in which year a liquidation of approximately $900,000 was indicated. Of this amount, approximately $812,000 represented increments to the beginning inventory of January 31, 1941, which were added during the year ending January 31,1942, when the Fairchild Price Index was 115.3.2 It was believed that the situation with respect to retail prices and inventories at that time was abnormal, and that the Fairchild Index would show a decline in succeeding years. In view of these facts, an election to*481 invoke the involuntary liquidation and replacement provisions of the Code was not made at the time of filing the taxpayer’s return for the year ending January 31, 1943. The Fairchild Index did, in fact, decline from 118.3 for the year ending January 31, 1943, to 113.3, 113.4 and 113.5 for the years ending January 31, 1944, 1945, and 1946, respectively. During these years substantially all of the merchandise liquidated in 1942 was replaced.3
However, as stated in our letter to you of August 8, 1951, the company was required to recompute the cost of its inventories under the elective method on a departmental basis using a price index acceptable to the Bureau of Internal Revenue. The index selected was that prepared by the United States Bureau of Labor Statistics. Recomputations were made and amended returns filed for the years ending January 31, 1942, to January 31, 1947, inclusive. The taxpayer’s return for the year ending January 31, 1948, was filed on this basis.
The recomputations revealed departmental liquidations of inventories during the years ending January 31, 1942, to January 31, 1948, inclusive. Moreover, the Bureau of Labor Statistics Indices, in contrast to the Fairchild Index, increased steadily during the years affected. The use of departmental pools and the Bureau of Labor Statistics Index, therefore, created an entirely different picture of the inventory situation than that formerly available to the company using the Fairchild Index applied against a single store-wide pool.
Should you desire any further information with respect to this matter, we shall be pleased to furnish it.
20. The policy of the Commissioner, in considering application of taxpayers under subpart H of Regulations 111 for extensions of time within which to elect the involuntary liquidation and replacement provisions, is to grant relief where the failure to make a timely election was due to (1) a reasonable and bona fide mistake of fact which made it appear that taxpayer was ineligible to make such election until the time within which such election might be made had expired, or (2) a change of position by taxpayer in
An example of a situation coming within this policy is the case of a rope manufacturing company which, in good faith and with reasonable cause, reported a single fiber inventory in which it included both manila and sisal. It used the LIFO inventory basis. Because its single fiber inventory showed an increase, it did not elect to have the involuntary liquidation and replacement provisions of Section 22 (d) (6) apply. The Commissioner examined the return, determined that the fiber classification was too broad, and established separate inventories for manila and sisal. The new manila inventory reflected an involuntary liquidation. The Commissioner determined that the requisite basis for relief existed.
21. The Commissioner by letter refused the plaintiff’s request for extensions of time and refused to treat the plaintiff’s elections as timely filed. The Commissioner’s letter is as follows:
Reference is made to your letters dated August 8,1951, and August 27, 1951, wherein you request an extension of time within which to file statements of election to have the provisions of section 22 (d) (6) of the Internal Revenue Code and section 29.22 (d)-7 of Regulations 111, apply with respect to certain Lifo inventory liquidations during the taxable years ended January 31,1942, to January 31,1948, inclusive.
Reference also is made to your statements of election, enclosed with your letter, to have the above-mentioned provisions of the law and regulations apply to certain Lifo inventory liquidations during the taxable years ended January 31, 1942, to January 31, 1948, inclusive.
You state you adopted the Lifo inventory method with respect to certain merchandise inventories beginning with your taxable year ended January 31, 1942; that you have consistently used such method in all subsequent years; that prior to the taxable year ended January 31, 1942, you valued such inventories by the retail inventory method applied departmentally; that beginning with the taxable year ended January 31,1942, and continuing through the taxable year ended January 31, 1947, all merchandise inventories to which the Lifo*483 method was applied were grouped into one large store-wide pool, and the Fairchild Eetail Price Index was applied to such single pool; that such Lifo inventory computations revealed no liquidations, except during the taxable year ended January 31, 1943; that, accordingly, there was no occasion to file statements of election to replace liquidations except for 1943; that for 1943 such a statement of election was not filed with your return for that year because the inventory pool as at January 31, 1942, was considered abnormally high and you expected the Fairchild index to decline in subsequent years; that the Fairchild index did decline from 118.3 for the year ended January 31, 1943, to 113.3, 113.4 and 113.5 for the years ended January 31, 1944, 1945, and 1946, respectively; that subsequent to the decision in Hutzler Brothers Company, 8 T. C. 14, January 14,1947, and T. D. 5605, C. B. 1948-1,16, approved March 4,1948, you were required to recompute your Lifo inventories on a departmental basis, using the price indices prepared by the U. S. Bureau of Labor Statistics; that such re-computations revealed liquidations of certain departmental inventories for all years ended January 31,1942 to 1948, inclusive; that you filed amended returns on such departmental basis for the taxable years ended January 31, 1942 to 1947, inclusive, and you filed your original return for the taxable year ended January 31, 1948, on such basis; that you did not file a statement of election with your return for the taxable year ended January 31, 1948, to replace departmental inventory liquidations reflected therein; and that the departmental inventory liquidations revealed by your recomputations on a departmental basis and use of Bureau of Labor Statistics indices for all years through January 31,1947, and your original computation on such basis for the year ended January 31,1948, have been replaced in whole or in part during the taxable years ended on or prior to January 31, 1951.
Prior to the taxable year ended January 31,1942, you valued your inventories by the retail inventory method on the basis of your respective departments and the Bureau withheld final action with respect to your Lifo inventory valuations for subsequent years until after the Hutzler decision and the approval of T. D. 5605. In the Hutzler decision it was held that a department store taxpayer, using the retail inventory method, was entitled to use the Lifo inventory method on the basis of its respective departmental inventories and the use of the Bureau of Labor Statistics indices. T. D. 5605*484 amended tbe regulations to conform with, the Hutzler decision.
According to the committee reports accompanying the amendment made by Public Law 756, the amendment was retroactive to taxable years beginning after December 31,1940, so that the Commissioner “can provide relief in any case which appears to involve hardship.” House of Eepresentatives Eeport No. 2756,81st Congress (19501, p. 1, and Senate Eeport No. 2366, 81st Congress (1950), p. 1. As amended to conform to Public Law 756, the regulations provide that elections under section 22 (d) (6) shall be filed not later than six months after the time of filing the income tax return for the year of liquidation.
Subpart H of Eegulations 111, authorizes, for good cause shown, a reasonable extension of time for making certain elections or applying for relief.
For the years in question, you were accounting for your inventories on the basis of a Lifo method which did not conform basically with your previously established use of the retail inventory method as required by section 22 (d) (1) (C) of the Internal Eevenue Code, section 29.22 (d)-2 (3) of Eegulations 111, and the decision of the Tax Court of the United States in the Hutzler case. For the taxable years ended January 31, 1943, and January 31, 1948, liquidations were revealed by your Lifo inventory computations and you did not elect at the time of filing your returns for such years or within six months thereafter to have the provisions of section 22 (d) (6) of the Code apply to such liquidations. Under the circumstances in the opinion of this office, good cause does not exist to support the granting of the extension of time requested. Accordingly, your application is denied.
22. On December 27, 1951, the plaintiff filed with the collector claims for refund asserting the overpayments of its income, declared value excess profits and excess profits taxes for its fiscal years 1942 to 1947, inclusive, that would result if its aforesaid elections were timely filed and that therefore it was entitled to the relief provided in Section 22 (d) (6) of the Internal Eevenue Code of 1939. The plaintiff stated in the said refund claims the reasons hereinbefore set forth. On July 9, 1952, the Commissioner sent to the plaintiff by registered mail his official notice of disallowance of the said claims for refund.
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover for the years 1942,1944, 1945,1946,1947 and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Buie 38 (c) of the Buies of this Court.
In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on March 27,1959, that judgment for the plaintiff be entered for $368,436.39.
This figure was Incorrectly stated in the letter. It should be 110.2.
The index figure for the year ending January 31, 1943, should have been stated as 113.1, and the last two sentences in this paragraph therefore should have read: “The Fairchild Index did, in fact, level off and remained fairly steady for the period of January 31,1943, through January 31,1944,1945, and 1946. During these years substantially all of the merchandise liquidated! in fiscal year ending January 31, 1943, was replaced.”