Wisconsin Bridge & Iron Co. v. Commissioner , 13 B.T.A. 246 ( 1928 )

WISCONSIN BRIDGE & IRON CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Wisconsin Bridge & Iron Co. v. Commissioner

Docket No. 13739.

United States Board of Tax Appeals

13 B.T.A. 246; 1928 BTA LEXIS 3289;

August 7, 1928, Promulgated

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The invested capital of a corporation may not be reduced in determining the extent to which a dividend is paid from current earnings of a year by a "tentative tax" theoretically set aside out of such earnings pro rata over such year because the income and profits tax does not become due and payable, and, therefore, does not accrue until the following year.

L. T. Atherton, Esq., for the petitioner.

J. L. Backstrom, Esq., for the respondent.

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SMITH

This is a proceeding for the redetermination of deficiencies in income and profits tax for the calendar years 1920 and 1921, of $332.63 and $1,513.85, respectively. The assignments of error stated in the petition are that the Commissioner erred in determining deficiencies in the following respects:

(1) Reducing the petitioner's statutory invested capital for the taxable years 1920 and 1921 by diminishing the amount of current earnings available for dividend distribution at the dates of payment of cash dividends declared after the first 60 days of each of said calendar years by the amount of a so-called "Tentative income and profits tax" alleged to have accrued as a liability for each of said years:

(2) Reducing the petitioner's statutory invested capital for the calendar years 1920 and 1921 by diminishing the amount of current earnings available for making purchases of its own capital stock at the dates upon which such purchases were made by the amount of a so-called "tentative income and profits tax" alleged to have accrued as liability for each of said calendar years; and

(3) Reducing petitioner's statutory invested capital for the calendar year 1921 by certain items which had been used by the revenue agent as deductions in computing petitioner's invested capital for said year, thus effecting a duplicate reduction of invested capital on account of the same transactions.

At the hearing of the proceeding an additional assignment of error was made as follows:

That the Commissioner has erroneously reduced the petitioner's statutory invested capital for the taxable years 1920 and 1921 by giving effect to the tentative tax adjustments in arriving at the correct tax liability for 1918 and 1919 in so far as the adjusted tax liability for 1918 and 1919 affects invested capital for 1920 and 1921 in prorating out of 1920 and 1921 invested capital the adjusted tax liability for the prior years 1918 and 1919.

The Commissioner admits the error alleged above in paragraph (3).

FINDINGS OF FACT.

The petitioner, a Wisconsin corporation, made Federal income-tax returns for the years 1918, 1919, 1920, and 1921. Its earned surplus on January 1, 1920, without any adjustment for the tentative tax, was $394,095.30. The petitioner's net income for 1920 was $271,454.22. Petitioner's net income for 1921 was $84,723.83.

In computing petitioner's statutory invested capital for each of the taxable years 1920 and 1921, the Commissioner first determined for each of said years a so-called tentative invested capital. For the calendar year 1920 the tentative invested capital as determined by the Commissioner was $855,376.95, and for the calendar year 1921, $891,790.66. The Commissioner then computed the so-called tentative income and profits-tax liability of this petitioner for each of said taxable years as follows: For the calendar year 1920 a so-called tentative income and profits-tax liability was computed at $80,800.38, and for the calendar year 1921, $9,839.65.

For the calendar years in question the Commissioner reduced the amount of current earnings available to the petitioner for distribution as cash dividends declared by it and made payable after the first 60 days of said taxable year and the amount of such earnings otherwise available to it for the purchase of its own capital stock made during each of said years, by the amount of the so-called tentative income and profits-tax liability computed by the Commissioner as shown above for each of those years.

In making his determinations of invested capital for the calendar years 1920 and 1921 the Commissioner determined invested capital for 1918 and 1919 in the same manner as for 1920 and 1921 and increased the tax liability for those years by reducing invested capital by a tentative tax.

OPINION.

SMITH: The respondent admits certain errors alleged by the petitioner in its petition filed with this Board. These relate specifically to the computation of invested capital for the year 1921. The deficiency notice upon which this proceeding is based shows that the Commissioner determined invested capital by deducting from prorated earnings available for the payment of dividends a "tentative tax" as having accrued at the date of the dividend declaration; the same is true with respect to determining earnings available for the purchase of capital stock. These determinations are in conflict with the decision of the Board in . The invested capital of the petitioner for the years 1920 and 1921 should be recomputed in accordance with the decision of the Board in the above entitled case.

Section 274(g) of the Revenue Act of 1926 provides:

The Board in redetermining a deficiency in respect of any taxable year shall consider such facts with relation to the taxes for other taxable years as may be necessary correctly to redetermine the amount of such deficiency, but in so doing shall have no jurisdiction to determine whether or not the tax for any other taxable year has been overpaid or underpaid.

The deficiency notice attached to the petition in this case, in accordance with the rules of the Board, shows that at the time the Commissioner made his determination of deficiencies for the years 1920 and 1921 he likewise determined overassessments for the years 1918 and 1919, and that in the making of such determinations of over-assessments for 1918 and 1919 he failed to follow the decision of the Board in The result of such failure was to overstate the tax liability determined for those years and likewise to reduce the petitioner's surplus at the beginning of the years 1920 and 1921. In the redetermination of deficiencies for the years 1920 and 1921 the surplus at the beginning of each year should be restated to comply with the decision of the Board in .

Judgment will be entered under Rule 50.