158 F.2d 158 | 2d Cir. | 1946
The question for decision is whether the taxpayer made a binding election to claim the foreign taxes as a deduction from gross income under § 23(c) (2) so that it could not later use them as a credit under § 131(a) (1) after the Commissioner audited the return and determined a deficiency, despite the fact that before the audit taxpayer believed that it owed no tax under either of the alternative methods, so that it then believed that it made no practical difference whether the foreign taxes were treated as a deduction or as a credit.
The Tax Court held that the allowance of credit for foreign taxes is conditioned upon an election which must be indicated in the original return or an amended return filed within the time allowed for the filing of an original return, and that failure so to indicate forfeits any right to a credit under § 131(a). That section, however, was not intended to confer an ordinary tax exemption; it was meant to encourage and facilitate foreign trade, Burnet v. Chicago Portrait Co., 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587, and to eliminate the evils of double taxation, American Chicle Co. v. United States, 316 U.S. 450, 62 S.Ct. 1144, 86 L.Ed. 1591. To achieve these ends, Congress gave the taxpayer the benefit of a choice between the two alternative methods of treating the foreign tax. It seems to us sufficient for the taxpayer to indicate its election when it appears that a tax is due and when, therefore, an election first has significance.
The matter was extensively discussed by the Sixth Circuit in Gentsch v. Goodyear Tire & Rubber Co., 151 F.2d 997, 1001, a closely analogous case. We accept the reasoning of that opinion. There the tax return for 1932, filed in 1933, showed a net loss and made no claim for credit for foreign taxes. Upon audit, the Commissioner determined a deficiency, and the taxpayer, in 1940, filed an amended return claiming such a credit. The court held that the taxpayer could not be said to have, exercised its option in its 1933 return. The Commissioner argues that the instant case is distinguishable because here taxpayer filed no amended return, and expressed its election solely in its protest against the Commissioner’s “sixty-day letter.” But in the Goodyear Tire case, the Court said that “A redelermination of tax liability by the Commissioner is, for practical purposes, an amendment of the taxpayer’s return * * * ” With that statement we agree. We believe that the letter of protest asserting an election which was filed shortly after the redetermination, when taken in conjunction with the redetermin-ation itself, may be regarded as the equivalent of an amended return manifesting an election.
Nor do we think it fatal that the taxpayer did not comply with the regulation which requires the filing of form 1118. The purpose of that form is to give the tax officials full information about the foreign taxes. When they obtain that information by their audit, as they did here, compliance with the regulation serves no useful purpose. There are instances in which strict compliance with a regulation is essential to the enforcement of a system of self-assessed income taxes. But “The function of the regulation is to facilitate research”;
Section 131(a) was intended, we think, to prevent a taxpayer, fully cognizant of the facts when making its return, from subsequently changing its position, but not to hold a taxpayer to a choice made when unaware that its choice had practical consequences. That such was the legislative purpose is emphasized by § 131 (d) which does preclude a shift of position by a taxpayer, knowingly electing to claim a credit, as to a cash or accrual basis.
Reversed.
Cardozo, J., in United States v. Memphis Cotton Oil Co., 288 U.S. 62, 71, 53 S.Ct. 278, 281, 77 L.Ed. 619.