Metro Leasing & Dev. Corp. v. Comm'rMetro Leasing & Dev. Corp. v. Comm'r
Lead
SUPPLEMENTAL OPINION
In an earlier opinion, we decided that petitioner permitted its 1995 earnings to accumulate beyond the reasonable needs of its business. See secs. 531-537;
The parties, in docket No. 8054-99, disagree about the computation of the accumulated earnings tax liability. That tax liability is computed by applying the accumulated earnings tax rate to a corporation’s accumulated taxable income. Accumulated taxable income is computed by making certain adjustments to taxable income. Respondent computed a proposed aсcumulated earnings tax liability of $56,248, and petitioner disagreed, contending that three additional adjustments should be made to respondent’s computation. If any of petitioner’s proposed adjustments are sustained, the resulting accumulated earnings tax liability will be within a range of amounts from zero to $51,074.
Petitioner argues that, in computing accumulated taxable income, respondent failed to reduce taxable income by the following items: (1) Income tax attributable to unrealized and unrecognized installment sale proceeds (if correct, this adjustment would result in no accumulated earnings tax liability); (2) the amount of the income tax deficiency either determined by respondent or decided by this Court (resulting in no liability or $13,666 in accumulated earnings tax,
I. Tax Liability on Installment Sale Income To Be Received in Years After 1995
Section 531 imposes a tax on a corporate taxpayer’s accumulated taxable income. Accumulated taxable income is computed by making certain adjustments to a corporate taxpayer’s taxable income. Sec. 535(a). In particular, section 535(b)(1) permits a deduction for Federal income tax “accrued during the taxable year”. In approaching this deduction, petitioner argues that its tax liability on unrealized and unrecognized installment sale income had accrued. This issue is one of first impression in the context of computing accumulated taxable income.
During its 1995 tax year, petitioner sold improved real property. The gross profit from the sale was $1,569,211. Petitioner reported the sale under the installment method.
In arguing that the tax on future installment income had “accrued”, petitioner relies on section 1.535-2(a)(l), Income Tax Regs. That regulation contains the following elaboration on the deduction as being “for taxes accrued during the taxable year, regardless of whether the corporation uses an accrual method of accounting, the cash receipts and disbursements method, or any other allowable method of accounting.”
According to petitioner, the quoted phrase changes all taxpayers’ methods of reporting income for purposes of section
Respondent disagrees with petitioner and points out that the language of section 1.535-2(a)(l), Income Tax Regs., was not intended to change petitioner’s method for reporting income from the installment to the accrual method. In that regard, respondent contends that section 535(b)(1) and the underlying regulation concern the amount of tax that “accrued during the taxable year”. Respondent also contends that petitioner’s post-1995 installment sale income does not meet the well-established standard for accrual of the income and/or tax during petitioner’s 1995 Federal tax year.
We agree with respondent. The regulation permits petitioner to deduct its tax liability which had accrued but had not been paid by the end of 1995. The regulation does not change petitioner’s tax accounting method for reporting income. Respondent’s interpretation of the regulation would result in equal treatment for corporate taxpayers with respect to the accrual of a tax liability for the year(s) under consideration.
We find petitioner’s approach to be inherently inconsistent with and contradictory to the statutory scheme, especially when considered in the factual context of this case. In that regard, petitioner seeks the benefit of a reduction attributable
Petitioner’s interpretation of the subject regulation does not comport with the section 535 statutory phrase “accrued during the taxable year”. In addition, the modification of a taxpayer’s overall tax accounting method does not appear to fit within the regimen of section 535(b). “The adjustments prescribed by section 535(a) and (b) are designed generally to assure that a corporation’s ‘accumulated taxable income’ reflects more accurately than ‘taxable income’ the amount actually available to the corporation for business purposes.” Ivan Allen Co. v. United States,
The adjustments provided for in section 535(b) increase or decrease taxable income, on an annualized basis, to arrive at a base against which to apply the accumulated earnings tax of section 531. For example, section 535(b)(1) provides for a reduction for taxes accrued during the taxable year and section 535(b)(4) requires that net operating loss deductions from other years must be added back. The purpose of these adjustments is to find the amount by which income has been allowed to accumulate beyond the neеds of the business for a particular tax year. Respondent’s interpretation of the regulatory phrase accomplishes that end. Petitioner’s interpretation, on the other hand, addresses the question of future tax liability.
Under established tax accounting principles for accrual, a liability is incurred and/or taken into account in the year in which all the events have occurred that establish the fact of the liability. See sec. 1.461-l(a)(2), Income Tax Regs. All the events have occurred when the amount of the liability can be determined with reasonable accuracy and economic performance has occurred with respect to the liability. Id. All of the
II. Whether a Contested Income Tax Deficiency That Has Been Paid Is Deductible From Taxable Income in Arriving at Accumulated Taxable Income
Here again, we focus on section 535(b)(1) and the underlying regulation in considering whether a contested income tax deficiency is a tax that “accrued during the taxable year”. Petitioner reported an income tax liability of $2,674 on its 1995 corporate Federal income tax return. The $2,674 was remitted by petitioner during March 1996, when it filed its 1995 return. Thereafter respondent determined a deficiency in petitioner’s income tax and, in addition, that petitioner was subject to the accumulated earnings tax. After the petition was filed and before we issued our opinion, petitioner tendered payment of the income tax deficiency to respondent. Although petitioner tendered payment, it continues tо contest the income tax deficiency. The parties disagree with respect to whether any part of the income tax deficiency should be deducted from taxable income to arrive at accumulated taxable income, the base for the accumulated earnings tax.
In making the adjustments to taxable income to arrive at accumulated taxable income, respondent deducted the $2,674 tax liability reported by petitioner, even though the $2,674 was not paid until after the close of the 1995 tax year. In addition to the $2,674, petitioner argues that the income tax deficiency, in the amount either determined by respondent or decided by the Court, should also be deducted from taxable income to reduce the accumulated earnings tax base.
Petitioner relies on the holding in J.H. Rutter Rex Manufacturing Co. v. Commissioner,
The Court of Appeals for the Fifth Circuit emphasized in its rationale
that the accumulated earnings tax is a penalty tax and thus is to be strictly construed. Ivan Allеn Co.,422 U.S. at 626 ,95 S. Ct. at 2506 . Due to the special nature of the accumulated earnings tax and its focused examination of earnings accumulated in a given year, it would be inequitable and inconsistent not to allow a corporation to deduct taxes assessedand attributable for the year at issue, even though the corporation may be contesting the taxes, as long as the corporation has paid the taxes prior to the final computation of its accumulated earnings tax liability. * * * [Rutter Rex, supra at 1296.]
We respectfully disagree with the interpretation of the Court of Appeals for the Fifth Circuit of section 1.535-2(a)(l), Income Tax Regs. That regulation, in its amplification of the language “tax accrued during the taxable year”, is designed to permit a reduction from taxable income in arriving at accumulated taxable income for a tax liability that had accrued during the taxable year, but had not bеen paid (is “unpaid”). That final caveat of the regulation simply explains that an accrued but unpaid tax liability may not be used to reduce the base for the accumulated earnings tax if the tax is contested. The focus of that final caveat is that no deduction is permissible where the liability is contested. The Court of Appeals, however, interpreted the term “unpaid” as the focus of the regulation’s caveat and its controlling condition.
Petitioner argues that the result fashioned by the Court of Appeals in Rutter Rex is more equitable. We observe, however, that it is inconsistent in that it treats a paid but contested deficiency differently from one that is unpaid and contested. In either situation, there is no way to know whether a taxpayer’s earnings will ultimately bear the burden of the contested deficiency determination. The payment of a contested income tax deficiency does not overcome the requirement that the obligation be fixed or final for accrual.
Petitioner argues that traditional accrual concepts (“all events test”) should not be employed for determining income tax accrued in the computation of accumulated taxable income. Petitioner’s argument is based on the appellate court’s rationale in Rutter Rex that it would be inequitable to prohibit a reduction for a paid, but contested, tax deficiency. Petitioner, however, has not provided a policy reason to treat taxpayers who contest an unpaid income tax deficiency differently from taxpayers who choose or are able to pay a contested deficiency.
In Doug-Long, Inc. v. Commissioner, supra, we held that the questioned phrase in the regulation was a valid interpretation of section 535 when determining a corporation’s Federal income tax that had accrued during the taxable year. The Commissioner has also provided guidance on this point, consistent with his position that contested deficiencies may not be reduced from the accumulated earnings tax base. See Rev. Rul. 72-306, 1972-
Significantly, Congress in section 535(b) has specifically provided for adjustments that cause the accumulated earnings tax to be applied or not to be applied to various items. There is no indication that Congress intended that the term “accrual” have a different meaning for purposes of section 535(b) and section 1.535-2(a)(l), Income Tax Regs., than its traditional and well-established meaning. In that context, we interpret the last line of section 1.535-2(a)(l), Income Tax Regs., as simply explaining that an accrued but unpaid tax
For those reasons, we disagree with the holding and rationale of the Court of Appeals for the Fifth Circuit and continue to adhere to our established precedent. We hold that no part of petitioner’s paid, but contested, income tax deficiency should be reduced from its taxable income in arriving at accumulated taxable income under section 535(b)(1).
III. Whether the Amount of the “Tax Attributable” Adjustment to Capital Gains That Is Used To Arrive at the Accumulated Earnings Tax Base Should Be Limited to Petitioner’s Reported Tax Liability for the Year
Petitioner argues, as its third and final alternative, that respondent’s computation of the adjustment for capital gains is understated. Petitioner argues that the tax attributable adjustment should be limited to the actual overall tax liability reported or a duplication of tax burden would result. Respondent contends that his adjustment follows the literal requirements of section 535(b)(6)(A).
Section 535(b)(6)(A) provides for a deduction from taxable income in arriving at accumulated taxable income of “the net capital gain * * * reduced by * * * the taxes attributable to such net capital gain.” Section 535(b)(6)(B) defines “the taxes attributable to the net capital gain” as the difference between “the taxes imposed by this subtitle (except the tax imposed by this part) for the taxable year, and * * * such taxes computed for such year without including in taxable income the net capital gain for the taxable year”.
The section 535(b)(6)(B)(i) language “the taxes imposed by this subtitle” is the focus of the parties’ dispute. Petitioner
In applying the above-quoted adjustment in his Rule 155 computation, respondent computed the accumulated earnings tax as follows:
Accumulated earnings tax — 1995
Taxable income per Form 5278 $325,000
Less sec. 535(b) adjustments:
1. Federal income taxes accrued (2,674)
2. Net capital gains $40,354
Less income tax attributable thereto 15,738
(24,616)
300,384
Less dividends paid: Compensation treated as dividend (150,250)
Other expenses paid for benefit of shareholders (8,094)
Accumulated taxable income 142,040
x 39.6% 56,248
In the above computation, respondent has interpreted section 535(b)(6) to mean that the net capital gain should first be reduced by the full amount of tax on the capital gain and that it is not limited by the amount of combined tax liability reported by petitioner for 1995. Accordingly, respondent has taken the net capital gain of $40,354, applied the 35-percent maximum rate under section 1201, and arrived at $15,738 of income tax attributable to the net capital gain.
Petitioner argues that if the “total amount of Federal income tax attributable to the year 1995 for purposes of the section 535(b)(1) calculation is determined to be $2,674, * * * then the total amount of income tax attributable to the capital gain cannot logically exceed $2,674.” In other words, petitioner contends that respondent’s net capital gain deduction from taxable income in the process of arriving at accumulated taxable income is $13,064 too small.
The question raised by petitioner’s argument is whether the amount of tax, in the context of the section 535(b)(6) phrase “[tax] attributable to such net capital gain”, is limited by the amount of a taxpayer’s total combined income tax liability
In order to understand better the distinctions bеtween the parties’ positions, we review petitioner’s 1995 Form 1120, U.S. Corporation Income Tax Return. Petitioner reported “Total Income” of $898,479, of which $35,884 was reported as “Capital gain net income”. The remainder of the income reported appears to be from sources of “ordinary income”, such as rents, royalties, etc. After ordinary deductions of $844,327 and a $36,326 net operating loss deduction, petitioner reported taxable income of only $17,825.
The $17,825 of taxable income reported by petitioner resulted in a $2,674 tax liability. It is that $2,674 which petitioner argues should limit the “tax attributable” to net capital gains within the meaning of section 535(b)(6). We note that the $2,674 of tax liability reported by petitioner has already been deducted from taxable income in the process of arriving at accumulated taxable income.
The problem with petitioner’s position is that $2,674 is not the “tax impоsed” on petitioner’s 1995 taxable income. The tax imposed on petitioner’s 1995 taxable income is $110,203, the amount decided by this Court in our earlier opinion
Section 535(b) contains several adjustments, some of which are intended to remove certain items from the accumulated earnings tax base. In that regard, section 535(b)(5), (6), and (7) provides for adjustments pertaining to capital gains. In general, section 535(b)(5) permits a reduction for net capital losses for the taxable year. Section 535(b)(6) provides for a reduction for net capital gains, less tax attributable to said gains. Finally, section 535(b)(7) makes inapplicable the ordering rules for capital losses under section 1212 and provides for the carryover of the prior year’s net capital loss.
The net effect of the provisions regarding capital gains and losses is to remove them from the accumulated earnings tax base, irrespective of whether they resulted in gain or loss. Respondent has removed the net capital gains in accord with the statute. The limitation argued for by petitioner does not comport with the statute, because the amount of tax liability reported by petitioner is not, ultimately, the “tax imposed” by the statute.
A similarly worded adjustment and computation for removing net capital gains from the computation of the personal holding company tax is provided for in section 545(b)(5). Like the accumulated earnings tax, the personal holding tax is considered a “penalty” tax. Taxpayers, in the context of the personal holding tax, have made arguments similar to those made by petitioner in this case. They argued that the tax imposed should equal the tax accrued for purposes of the capital gain adjustment. This Court rejected those arguments, holding that Congress was aware that taxpayers would not be able to deduct contested taxes in connection with the adjustment for “taxes accrued during the year”, whereas the tax imposed would include the deficiency decided by a court. See Kluger Associates, Inc. v. Commissioner,
We therefore hold that respondent correctly computed the adjustment for net capital gains under section 535(b)(6) and that respondent’s approach to the Rule 155 computation is not in error.
To reflect the foregoing,
Decision will be entered under Rule 155.
Reviewed by the Court.
Notes
All section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated.
Petitioner’s 1995 Federal return contains the notation that it uses the accrual method of accounting for tax purposes. With respect to thе real estate sale, however, petitioner elected the installment method.
Petitioner reflected an amount in excess of $500,000 in connection with the installment sale as “deferred income taxes” (a current liability) on the balance sheet which was part of its 1995 return. In addition, for financial reporting purposes, petitioner included the “deferred” installment sale income in its 1995 income. However, no part of the income that may be realized from subsequent years’ installments was included in petitioners 1995 Federal income tax base.
For example, under the cash method a taxpayer’s tax liability would not be deductible until such time as it is paid. Under respondent’s interpretation, a cash basis taxpayer would be entitled to deduct unpaid, but established (“accrued”), income tax liability that, but for payment, had accrued during the taxable year.
Under petitioner’s interpretation of the statutе, its sales transaction would have to be treated as an accrual method transaction as though the installment reporting method had not been elected.
For example, if petitioner had included the income in its tax base for 1995, its taxable income (the starting point for computing accumulated taxable income) would have been proportionately larger and, even after the reduction for the “accrued tax” on future installment income, would have had the potential to result in a larger accumulated earnings tax than the $56,248 computed by respondent. In effect, petitioner seeks to reduce the accumulated taxable income base by the future tax liability without including the future income in the income accumulation for the 1995 tax year.
To the extent that petitioner receives installment income in future years, the tax and income would be matched in the samе taxable year and have a direct bearing on whether that income was allowed to accumulate beyond its needs for that future year.
A taxpayer’s Federal income tax liability is not deductible in arriving at taxable income. See sec. 27S. A Federal income tax liability that “accrued during the taxable year” is allowed as a deduction from the tax hase for the accumulated earnings tax. See sec. 535(b)(1).
Our J.H. Rutter Rex Manufacturing Co. v. Commissioner opinion (
The word “unpaid” appears in the last sentence of the pertinent part of sec. 1.535-2(a)(l), Income Tax Regs., as follows:
for taxes accrued during the taxable year, regardless of whether the corporation uses an accrual method of accounting, the cash receipts and disbursements method, or any other allowable method of accounting. In computing the amount of taxes accrued, an unpaid tax which is being contested is not considered accrued until the contest is resolved. [Emphasis supplied.]
In its opinion, the Court of Appeals acknowledged that the income tax dеficiency remained in controversy, even though payment had been proffered. Accordingly, the Court was aware that, ultimately, the taxpayer’s accumulation might not have been subjected to the contested tax deficiency.
The taxpayer in Rutter Rex had petitioned this Court to contest income and accumulated earning tax deficiencies determined by the Commissioner. After the filing of the petition and this Court’s opinion as to the amount of the income tax deficiency, but prior to the final computation of the accumulated earnings tax and the entry of a decision, the taxpayer “apparently offered to pay” the contested income tax deficiencies. See Rutter Rex,
In addition, from the perspective of the accumulated earnings tax, payment of a contested income tax deficiency some 5 or 6 years after the accumulation in question would appear to have little relevance to the question of whether the tax “accrued during the taxable year” or whether a taxpayer allowed its income to accumulate beyond the reasonable needs of the business. The quoted statutory language and the regimen of the accumulated earnings tax address the proscribed accumulation at the time of the accumulation.
The Court of Appeals for the Fifth Circuit, in a footnote, also acknowledged that their holding was contrary-!» cases interpreting the phrase “taxes * * * accrued during the taxable year” in the context of personаl holding tax cases under secs. 541-547, a companion penalty regimen. See LX Cattle Co. v. United States,
Although not decisive, it is interesting to note that in the context of a prepayment forum, the income tax deficiency is not assessed and, as a technical matter, could not be paid. By contesting the deficiency, a taxpayer ensures that the tax may not be assessed or collected. Even though a deficiency is paid after the filing of a petition, if a taxpayer continues to contest it, the tax is not assessed. Normally, payment during the course of a prepayment (deficiency) forum is used to stop the running of interest and is treated more like a deposit should an income tax deficiency be ultimately decided.
There appear to be two errors in respondent’s computation of petitionеr’s accumulated earnings tax. First, there appears to be an error in subtraction. If $325,000 is reduced by $2,674 and $24,616, the result should be $297,710 and not $300,384. Second, the amount shown as taxable income on Form 5278, Statement — Income Tax Changes, of respondent’s computation is $325,522 and not $325,000. The parties will be ashed to address these apparent discrepancies in a Rule 155 computation to be prepared in accord with this Supplemental Opinion.
We note that petitioner reported $35,884 of net capital gain and that respondent made adjustments increasing the amount to $40,354. We also note that 35 percent of $40,354 is $14,123.90 ($14,124) and not $15,738. It appears that another adjustment was combined with the one discussed herein, resulting in the $15,738 amount.
In support of its position, petitioner argues that respondent’s approach results in a duplication or “doubling-up of the tax element”. Essentially, respondent’s computation results in rеmoving the capital gain and its tax effect from the tax base for computing accumulated earnings tax.
The liability when considering both ordinary and net capital gain income.
That adjustment was made under sec. 535(b)(1) as discussed earlier in this Supplemental Opinion.
Concurrence Opinion
concurring: Although I have joined in the majority’s opinion, I write separately to set forth more fully why I believe petitioner may not accrue the contested tax liability in question.
I. Application of the All Events Test
The majority notes: “Our holding in J.H. Rutter Rex Manufacturing Co. v. Commissioner,
The seminal case establishing the basic rule for when a liability is incurred and, thus, is taken into account under the accrual method of accounting for Federal income tax purposes is Unitеd States v. Anderson,
In Dixie Pine Prods. Co. v. Commissioner, supra, the Supreme Court amplified the all events test by holding that all of the events to establish a liability have not occurred if the liability is contingent and is contested by the supposed obligor. Id. at 519; accord Security Flour Mills Co. v. Commissiоner,
In United States v. Consol. Edison Co.,
The result in United States v. Consol. Edison Co., supra, was overruled (retroactively to the effective date of the 1954 Code) by section 223 of the Revenue Act of 1964, Pub. L. 88-272, 78 Stat. 19, 76, which added section 461(f), which permits a deduction for contested items in the year of payment, even though the contest is not resolved until a later year. S. Rept. 830, 88th Cong., 2d Sess. (1964), 1964-1 C.B. (Part 2) 505, is the report of the Committee on Finance that accompanied H.R. 8363, 88th Cong., 1st Sess. (1963), which, when enacted, became the Revenue Act of 1964. The report explains the general reasons for section 461(f) (which originated in the Senate) as follows:
Although your committee does not question the legal doctrine laid down by the Supreme Court in the Consolidated Edison case, it believes that it is unfortunate to deny taxpayers a deduction with respect to an item where the payment has actually been made, even though the liability is still being contested either as to amount or as to the item itself. * * * [S. Rept. 830s supra, 1964H C.B. (Part 2) at 604; emphasis added.]
Thus, under well-established principles of tax accrual laid down by the Supreme Court, it is clear that, for, income tax purposes, the all events test is not satisfied with respect to a cоntested tax liability, and the contested tax liability may not be “accrued”, until the year in which the contest is terminated. If the contested liability is paid before the contest is terminated, the liability is deductible in the year of payment pursuant to section 461(f). If the same tax accrual principles apply for purposes of section 535(b)(1), there is no basis in law for the holding of the Court of Appeals for the Fifth Circuit in J.H. Rutter Rex Manufacturing Co. v. Commissioner,
II. Relevance of Section 1.535 — 2(a)(1), Income Tax Regs.
The Court of Appeals for the Fifth Circuit, in J.H. Rutter Rex Manufacturing Co. v. Commissioner, supra at 1297, noted that the last sentence of section 1.535-2(a)(1), Income
We are left, then, to determine whether the test of a section 535(b)(1) tax accrual is the all events test.
III. Validity of Section 1.535-2(a)(l), Income Tax Regs.
The final sentence of section 1.535-2(a)(l), Income Tax Regs., reads: “In computing the amount of taxes accrued, an unpaid tax which is being contested is not considered accrued until the contest is resolved.” That sentence leaves little doubt that the Secretary of the Treasury intended the test of a section 535(b)(1) tax accrual to be the all events test. See
I conclude that section 1.535-2(a)(l), Income Tax Regs., validly interprets section 535(b)(1): The test of a section 535(b)(1) tax accrual is the all events test.
It should be noted that, in the absence of a contest, the all events test is satisfied with respect to the additional tax attributable to an income tax deficiency as of the close of the deficiency year. See Dravo Corp. v. United States,
Chestnut Sec. Co. v. United States,
That is, finally determined before the corporation’s liability for accumulated earnings tax becomes final.
Petitioner suggests that the Chevron standard of review should not apply because the accumulated earnings tax is in the nature of a penalty. Even if we were to conclude that the final sentence of sec. X.535 — 2(a)(1), Income Tax Regs., is invalid on that basis, it would not necessarily follow that petitioner would be entitled to deduct from its 1995 accumulated taxable income the amount of its 1995 Federal income tax deficiency as determined by this Court. That is, if we were to invalidate the final sentence of sec. 1.535-2(a)(l), Income Tax Regs., we would still be required to interpret the meaning of the term “[taxes] accrued during the taxable year” as used in sec. 535(b)(1). In this regard, petitioner offers no support for the proposition that Congress intended a taxes-as-finally-determined rule as opposed to, say, a taxes-as-actually-reported rule.
The Court of Appeals for the Fifth Circuit in J.H. Rutter Rex Manufacturing Co. v. Commissioner,