Mel Dar Corp. v. Commissioner , 19 T.C.M. 1584 ( 1960 )

Mel Dar Corporation v. Commissioner.

Mel Dar Corp. v. Commissioner

Docket Nos. 60997, 68821, 71208.

United States Tax Court

1960 Tax Ct. Memo LEXIS 233; 19 T.C.M. (CCH) 1584;

March 30, 1960

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FORRESTER

Order

FORRESTER, Judge: On respondent's motion to reconsider Opinion (T.C. Memo. 1960-56) filed herein with special leave on October 19, 1960, it is

ORDERED: That said opinion be revised by eliminating that portion thereof identified "Issue 9. Net Operating Loss Carryover" appearing at pages 68, 69 and 70 thereof and substituting therefor the following:

Issue 9. Net Operating Loss Carryover

In computing a tentative net operating loss for 1951 available as a carryover to later taxable years, respondent has reduced such loss by the excess of percentage over cost depletion. Petitioners challenge the correctness of this adjustment.

Section 23(s) of the Internal Revenue Code of 1939 provides as follows:

"SEC. 23. DEDUCTIONS FROM GROSS INCOME

"In computing net income there shall be allowed as deductions:

* * *

"(s) Net Operating Loss Deduction. - For any taxable year beginning after December 31, 1939, the net operating loss deduction computed under section 122." Section 122 thereof reads in part as follows:

"SEC. 122. NET OPERATING LOSS DEDUCTION.

"(a) Definition of Net Operating Loss. - As used in this section, the term 'net operating loss' means the excess of the deductions allowed by this chapter over the gross income, with the exceptions, additions, and limitations provided in subsection (d).

"(b) Amount of Carry-Back and Carry-Over. -

* * *

"(2) Net Operating Loss Carry-Over. -

* * *

"(B) Loss for Taxable Year Beginning After 1949. - If for any taxable year beginning after December 31, 1949, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-over for each of the five succeeding taxable years, except that the carry-over in the case of each such succeeding taxable year (other than the first succeeding taxable year) shall be the excess, if any, of the amount of such net operating loss over the sum of the net income for each of the intervening years computed -

"(i) with the exceptions, additions, and limitations provided in subsection (d)(1) * * *.

* * *

"(c) Amount of Net Operating Loss Deduction. - The amount of the net operating loss deduction shall be the aggregate of the net operating loss carry-overs and of the net operating loss carry-backs to the taxable year reduced by the amount, in any, by which the net income (computed with the exceptions and limitations provided in subsection (d)(1), * * * exceeds, * * * in the case of a corporation, the normal-tax net income (computed without such deduction * * *);

"(d) Exceptions, Additions, and Limitations. - The exceptions, additions, and limitations referred to in subsections (a), (b), and (c) shall be as follows:

"(1) The deduction for depletion shall not exceed the amount which would be allowable if computed without reference to discovery value or to percentage depletion under section 114(b)(2), (3), or (4); * * *"

The most casual reading of the above makes it clear that in computing the net operating loss deduction in the tax year the loss of the loss year must be reduced by the excess of the percentage depletion deduction in that year over cost depletion. It is also manifest that subsection (b)(2)(B) requires that in computing the carryover from the first tax year (fiscal 1952) to the second tax year (fiscal 1953) the income from fiscal 1952 be adjusted as prescribed in (d)(1).

In computing the net operating loss deduction for a tax year, subsection (c) requires that the carryovers to any tax year be reduced by the amount of the excess of income for the tax year computed by using conventional cost depletion over income computed by using percentage depletion.

Not only are these latter two adjustments required by the plain words of the statute but also the legislative history of section 122 makes apparent the need for such modifications in order that taxpayer will benefit taxwise only from the true economic loss which he has suffered during the years involved. H. Rept. No. 855, 76th Cong., 1st Sess., p. 17 (and example). The regulations, Regs. 118, section 39.122-5(a) and (b) and the example given there also require such adjustments in the years other than the loss years. See also 5 Mertens, Law of Federal Income Taxation, sec. 29.02(d)I(11) third paragraph, and sec. 29.02(d)II(8) and (9).

Any other method of computation would permit the taxpayer to utilize more than his economic loss, a result which Congress plainly did not desire prior to its specifically declared change of policy in enacting section 172 of the 1954 Code. S. Rept. No. 1622, 83d Cong., 2d Sess., p. 212.

Accordingly, the Rule 50 computations should provide for section 122(d)(1) adjustments in the tax years (fiscal 1952 and 1953) as well as in the loss year.