Ewing-Thomas Converting Co. v. Comm'r

OPINION.

Smith :

The question in issue in this case is whether a- taxpayer may take its inventory at the close of 1919 at less than cost and at less than market prices where it is under binding firm sales contracts to sell an equivalent amount of merchandise at prices less than the cost and less than the market prices at the close of the year.

The facts in the instant case show that the taxpayer at December 31, 1919, was under binding contracts to deliver to one Clarence L. Meyers, Philadelphia, Pa., 53,198 pounds of mercerized yarn at stipulated prices. The contracts to make the deliveries had beeu entered into during the latter part of 1918 or the first half of 1919, at which time market prices of mercerized yarn were much lower than they were at the close of the j^ear 1919. As soon as the taxpayer had entered into contracts to sell the mercerized yarn it immediately went into the market and bought natural or gray yarn against those contracts. A large part of the natural yarn which had been purchased against the Meyers contracts was mercerized and delivered to customers who had placed orders with the taxpayer after the Meyers contracts had been entered into.

Inasmuch as the taxpayer was not obligated to deliver to Meyers any particular lot of yarn which it had purchased it was free to gell the yarn to later customers and since the prices of mercerised yarn advanced very rapidly throughout most of 1919 the amount of book profit shown upon the deliveries of mercerized yarn to other individuals than Meyers was very large. The evidence shows that the taxpayer had in no case speculated in cotton yarn. It was simply its endeavor to make a fair manufacturer’s profit upon the mercerizing of the yarn. From its point of view the' natural yarn which had been purchased against the Meyers contracts but which was used in filling later orders was substituted by the purchases made against the later orders at the time those orders were taken. The taxpayer’s inventory at December 31, 1919, was taken at cost. But the taxpayer appreciated that it was under a very heavy liability to Meyers and that it would in all probability sustain a very large loss upon the deliveries which would be made during the year 1920 upon the Meyers contracts. It therefore cut down its inventory to account for the loss which it was clearly of the opinion it must sustain.

Section 203 of the Revenue Act of 1918 provides:

That whenever in the opinion of the Commissioner the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer upon such basis as the Commissioner, with the approval of the Secretary, may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income.

In pursuance of the authority thus conferred upon the Commissioner, Article 1584 of Regulations 45 (1920 edition) has been prescribed. This article provides in part:

* * * Under ordinary circumstances, “market” means current bid price prevailing at the date of the inventory for the particular merchandise in the volume in which ordinarily purchased by the taxpayer, and is applicable in the cases (a) of goods purchased and on hand, and (b) of basic elements of cost (materials, labor, and burden) in goods in process of manufacture and in finished goods on hand; exclusive, however, of goods on hand or in process of manufacture for delivery upon firm sales contracts at fixed prices entered into before the date of the inventory, which goods must be inventoried at cost. * * * Where, owing to abnormal conditions, the taxpayer has regularly sold such merchandise at prices lower than the current bid price as above defined, the inventory may be valued at such prices, and the correctness of such prices will be determined by reference to the actual sales of the taxpayer for a reasonable period before and after the date of the inventory. * * *

It is contended on the part of the taxpayer that its true net income for 1919 can not be determined without the deduction from its gross income of the $53,198, estimated loss upon the Meyers contracts. Relative to this contention no evidence has been furnished that the yarn which the taxpayer had on hand at December 31, 1919, was not worth the cost or market value, whichever was lower. No yarn on hand at the close of 1919 had been specifically appropriated to the Meyers contracts. The taxpayer was not obligated to use any of the yarn which was inventoried in filling those contracts. So far as anything appears in the record the yam could have been sold in the open market at the prices at which it was inventoried. It is true that the taxpayer was under contract to deliver cotton yarn to Meyers and undoubtedly it would have been liable to damages if the deliveries had not ultimately been made. But, if so, such damages would have been sustained in the year in which any judgment might be given against the taxpayer or in which such judgment was paid. The amount of loss which the taxpayer might have sustained is only conjectural. No loss was actually sustained during the year 1919 and there is no provision of the law which permits the deduction of a prospective loss.