Morton-Norwich Products, Inc. v. United States

BENNETT, Judge,

delivered the opinion of the court:

Plaintiff, Morton-Norwich Products, Inc., seeks refunds for overpayments of federal income taxes and interest for tax years 1965 through 1973. The case, which presents various claims for refund, is before the court on cross-motions for summary judgment.

In Counts II and VI of the petition, taxpayer claims refunds for a loss deductible under I.R.C. § 165(a). This loss involved research and development expenditures (R&D) incurred in an attempt to discover uses and methods of recovery of geothermal deposits (plaintiff having had a substantial leasehold interest in a geothermal deposit), which R&D costs plaintiff had elected to capitalize pursuant to I.R.C. § 174, and claimed to have been abandoned in 1970 (Count II) or, in the alternative, 1973 (Count VI). Counts IV (for the tax year ending June 30, 1971) and V (for the years ending June 30, 1972, and June 30, 1973) examine whether, if plaintiff prevails on Count II, it may, under section 162(a), deduct certain expenses subsequently incurred as ordinary and necessary business expenses related to the underlying leasehold plaintiff retained. Per stipulation, the parties agreed that the bad debt claim stated in Count III was erroneous and properly disallowed. The amount of such losses ($38,108) is added, by stipulation, to plaintiffs deferred R&D costs, and thus to plaintiffs claim for an abandonment loss under Count II or VI.

We determine that the issues involved in these counts cannot be decided on summary judgment as, despite the existence of stipulations and agreements as to some of the facts, there are still issues of fact to be resolved. Therefore, we remand that portion of the petition to the trial division.

The issue posed for resolution in Count I of the petition is whether interest on a deficit in income tax for the taxable years at issue resulting from the allocation, pursuant to I.R.C. § 482,¹ of gross income and deductions between plaintiff and its affiliated corporation on account of non-arm’s-length, interest-free loans is properly calculated from the time the original income tax returns for those years were due, or from the time that notice and demand for payment were made. This presents an important issue' of first impression which is appropriate for summary judgment. For the following reasons, we hold that interest on income tax resulting from a section 482 allocation is properly assessable from the time the original return was due and grant judgment accordingly for defendant.

Morton-Norwich is the parent of an affiliated group of corporations. During the years 1965 through 1973 it made loans to its wholly owned foreign subsidiaries. No interest was charged on these loans. During those periods taxpayer had borrowed funds from third parties and claimed deductions for interest paid on those funds. The Commissioner determined that taxpayer had underpaid its tax for those years to the extent it had not reported interest at the rate of 5 percent on the loans it tendered.² Correlative adjustments were made with respect to the taxes of the subsidiaries which had received the loans.³

The taxpayer originally filed a petition in the Tax Court challenging the IRS’s determination of liability for some of the years involved. A settlement was reached and embodied in a stipulation in the Tax Court. Also, the taxpayer and Commissioner agreed upon the amount of adjustment for the years after the Tax Court action. Neither the agreement nor the stipulation waived taxpayer’s right to file claims for refund or credit based on the contention that some or all of the interest on the deficiencies was not properly due the IRS. Taxpayer paid the assessments agreed upon, plus interest from the date that the tax returns for the involved periods were due to the date of payment. Plaintiff seeks a refund of the amount of interest charged from the date that the original tax was due to the date of the Service’s notice and demand for payment of the deficiency.

I

The general rule for interest is that it runs from the "last date prescribed for payment,” to the date paid. I.R.C. § 6601(a). When a return of tax is required, section 6151, entitled "Time and place for paying tax shown on returns,” requires a taxpayer to pay the tax at the time and place fixed for filing the return. If the date for payment is not prescribed, the last date for payment is deemed to be the date the liability arises, in no event later than notice and demand therefor. I.R.C. § 6601(b)(4). One exception to the general rule is that interest only runs on an assessable penalty, additional amount, or addition to the tax from the date of notice and demand. I.R.C. § 6601(e)(3).

Our problem is how to treat within this framework the underpayment of income tax for a taxable year resulting from a section 482 allocation. Plaintiffs argument that the general rule does not apply depends upon the application to this case of the doctrine enunciated with respect to the accumulated earnings tax, I.R.C. § 531,⁴ set forth in the opinion of this court in Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F.2d 702 (1970).

In Motor Fuel Carriers, this court held that interest did not begin to run on the assessment of the accumulated earnings tax until notice and demand were made. The court supported its conclusion on alternative grounds: (1) the accumulated earnings tax was an "assessable penalty, additional amount, or addition to the tax” within the meaning of section 6601(f)(3) [now I.R.C. § 6601(e)(3)];⁵ and (2) if the general rule of section 6601(a) did apply, the last date prescribed for payment was the date of notice and demand pursuant to section 6155. Other courts have reached the same results with respect to the accumulated earnings tax. Bardahl Mfg. Corp. v. United States, 452 F.2d 604 (9th Cir. 1971) (section 531 tax an addition to the tax or penalty (§ 6601(e)(3))); Ray E. Loper Lumber Co. v. United States, 444 F.2d 301 (6th Cir. 1971) (last date for payment of accumulated earnings tax not prescribed (§ 6601(b)(4))).

The court in Motor Fuel Carriers relied on the following principal factors in determining that either the accumulated earnings tax was an addition to the tax under section 6601(e)(3) or that the last date prescribed for payment was the date of notice and demand under sections 6155 and 6601(a). The first was that it was clear from the statute, the legislative history,. and administrative practice that the accumulated earnings tax was separate from, and in addition to, the normal corporate income tax under section 11. The statute explicitly provides that such tax is "[i]n addition to other taxes imposed by this chapter.” I.R.C. § 531. Second, the tax was not self-assessable like normal income taxes, but assessment requires "an administrative determination by the Service” of the fact and amount of the unreasonable accumulation of earnings and profits. Motor Fuel Carriers, Inc. v. United States, supra, 190 Ct. Cl. at 393, 420 F.2d at 707. "There is no provision in, or part of, Treasury Form 1120 (the return form) for reporting the amount subject to this tax; nor are there any schedules or instructions for reporting the item. It is left wholly to the Government’s initiative.” Id. at 390, 420 F.2d at 705 [cite omitted]. In the court’s thinking, it was the second group of factors which demonstrated the logic of treating the liability for the accumulated earnings tax as not having vested until notice and demand. The logic has supported the result in respect to the accumulated earnings tax— whether the rationale was that it is a penalty or addition to the tax under Motor Fuel Carriers or Bardahl, or that the last date prescribed for payment was the date of notice and demand under Motor Fuel Carriers, or that the last date for payment was not prescribed under Loper.

Other than certain superficial similarities concerning assessments under sections 531 and 482, the provisions are not at all comparable. Section 531 imposes a tax after the normal corporate income tax is assessed under section 11, on the unreasonable accumulation of earnings and profits of a corporation. The tax is imposed on a corporation "formed or availed of for the purpose of avoiding the income tax with respect to its shareholders * * I.R.C. § 532(a). Special rates, unrelated to corporate income tax rates, are applied not to taxable income, but to that portion of after-tax income which has been unreasonably accumulated.

Section 482, however, does not impose a tax by operation of its provision alone. The section authorizes the Secretary to "distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among [corporations].” I.R.C. § 482. Such action can change the amount of taxable income of a corporation for a taxable year resulting in the recomputation of the corporate income tax under section 11. The Secretary’s action results in the amendment of the original corporate income tax return to show the proper amount of gross income, deductions, credits, or allowances. It is under the provisions of section 11, which provide for a tax on the taxable income of corporations, that an overpayment or underpayment of the proper tax is found.

Section 531 has often been described as a penalty imposed upon corporations for their failure to distribute dividends to their shareholders. See Motor Fuel Carriers, Inc. v. United States, supra, 190 Ct. Cl. at 391 n.6, 420 F.2d at 706 n.6. In keeping with the characterization of section 531 as a penalty, the burden of proof in a judicial proceeding is often on the Government. I.R.C. § 534(a). Whatever the proper characterization of the accumulated earnings tax, an allocation under section 482 is not a penalty, or addition to the tax, but, as pointed out by defendant, an income-correction device. The burden of proof is squarely on the taxpayer to show that the Service acted in an arbitrary manner. See, e.g., Young & Rubicam, Inc. v. United States, 187 Ct. Cl. 635, 410 F.2d 1233 (1969). Correction is effected by nonpenal, correlative adjustments in the respective corporation’s taxable income. Treas. Reg. § 1.482-1(d)(2) (1968).⁶ Also, consideration is taken of other non-arm’s-length transactions between the corporations "in the taxable year which, if taken into account, would result in a set off against any allocation which would otherwise be made * * *.” Treas. Reg. § 1.482-1(d)(3) (1968). Indeed, the Service once had difficulty in asserting its power in the specific area of the imputation of interest on loans where the result worked as a penalty because of the absence of correlative adjustments. See Tennessee-Arkansas Gravel Co. v. Commissioner, 112 F.2d 508 (6th Cir. 1940); Smith-Bridgman & Co. v. Commissioner, 16 T.C. 287 (1951); Rev. Rul. 67-79, 1967-1 C.B. 117.⁷

Under section 482, the Secretary is only authorized to take action "in order to prevent evasion of taxes or clearly to reflect the income of any [corporation].” The Secretary’s authority is geared to the determination of the true taxable income of a controlled taxpayer which is the taxable income which would have resulted to the controlled taxpayer had it in the conduct of its affairs dealt with the other member or members of the group at arm’s length. As this court (and others) has often noted, the thrust of this section is to put controlled taxpayers on a parity with uncontrolled taxpayers. See, e.g., Young & Rubicam, Inc. v. United States, supra; Eli Lilly & Co. v. United States, 178 Ct. Cl. 666, 372 F.2d 990 (1967). Inherent in this section is the rationale that if transactions between related parties were structured on an arm’s-length basis in accordance with economic reality, the proper corporate taxable income and tax would be returned and paid. The Government would have had the use of the revenue from the time the original return was due. If interest did not run from the time the original return was due, controlled taxpayers whose gross income and deductions were distorted due to the artificial, controlled transactions, would never be on a parity with uncontrolled taxpayers whose transactions would be structured on an arm’s-length basis. The failure to impose interest until the taxpayer was caught by the Service would be a definite benefit to be gained by distorting income in the controlled situation. In enacting section 482, Congress certainly did not intend that there be an incentive for income tax distortion or evasion.

Section 482 has its roots in section 240(d) of the Revenue Act of 1921 (section 240(f) of the 1926 Act) where the Commissioner was given the power to consolidate accounts of related trades or businesses for purposes of making the correct distribution of gains, profits, income, deductions, or capital in order to prevent the arbitrary shifting of profits. S. Rep. No. 275, 67th Cong., 1st Sess. 20 (1921). The provision as it appears today was first enacted in section 45 of the Revenue Act of 1928 to fill in the gap or substitute for the consolidated return provisions.⁸ Under the consolidated return provisions of the 1926 Act, and the power granted to the Commissioner to consolidate accounts under section 240(f), the resultant tax liability was reported on the original return filed in accordance with section 241. Though the mechanics of sections 240(f) and 45 were different, their objective was the same, to ensure that affiliated businesses paid the proper tax.

Though plaintiff does not dispute the fact that the nature and purpose of sections 531 and 482 are quite different, plaintiff contends that the mode of their determination and mechanics of their assessment are the same, and, therefore, the same rule should govern the imposition of interest. Like the section 531 tax, plaintiff argues, there is no place on the income tax return to report the tax due resulting from a section 482 allocation, and the tax imposed on account of a section 482 allocation results from an administrative determination rather than the initiative of the taxpayer. Plaintiff cites Treas. Reg. § 1.482-1(b)(3) (1968) which provides that section 482 is not available to a taxpayer nor may a taxpayer force the Service to exercise its discretion. See also Interstate Fire Ins. Co. v. United States, 215 F. Supp. 586 (E.D. Tenn. 1963), aff’d, 339 F.2d 603 (6th Cir. 1964). Thus, plaintiff argues, once it has chosen a particular way of dealing with its affiliates, the form is controlling of income tax consequences unless the Secretary exercises his discretionary power.

The inability of a taxpayer to report income on the basis of the substance of its transactions with an affiliate rather than the form of its transactions when the substance would result in tax savings is quite different from a taxpayer’s ability or inability to report accumulated earnings tax. No taxpayer could ever possibly wish to avail itself of the privilege of paying accumulated earnings tax. A taxpayer might very well wish to use section 482 when through inadvertence or design it has treated an affiliate in a non-arm’s-length manner which has resulted in increased tax liability. Under section 531, if the corporation properly distributes earnings and profits, the corporation has no liability for tax. On the other hand, if controlled entities properly structure their transactions on an arm’s-length basis, the proper amount of tax is due and owing. Power is granted to the Secretary to achieve this result. The inability of a taxpayer to restructure the form of its transactions for tax purposes though the IRS may very well be permitted to do such has long been a part of our tax law and cannot be the determinative factor here. As the Supreme Court has stated:

* * * This Court has observed repeatedly that, while a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice, whether contemplated or not [cites omitted], and may not enjoy the benefit of some other route he might have chosen to follow but did not. [Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 149 (1974).]

On the other hand:

* * * the Government may not be required to acquiesce in the taxpayer’s election of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed for doing business or carrying out the challenged tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax statute. To hold otherwise would permit the schemes of taxpayers to supersede legislation in the determination of the time and manner of taxation. [Higgins v. Smith, 308 U.S. 473, 477-78 (1940) (emphasis added).]

Section 482 is simply one statutory component of the Government’s arsenal, like I.R.C. § 446(b) (power to change taxpayer’s accounting method in order to clearly reflect income), or the judicial doctrines of assignment of income and tax benefit (which are, indeed, concepts included within section 482’s ambit) to ensure that the correct amount of income and tax is reported and paid.

Further, we disagree with the view that a tax resulting from a section 482 allocation, like the accumulated earnings tax, is not a tax to be paid by return. Unlike the accumulated earnings tax, where there is no indication in the statutes, regulations, or income tax forms that a return of such tax is required, the tax resulting from a section 482 allocation is imposed by section 11 on the basis of a required return, Treas. Reg. § 1.11-1(a) (1960).⁹ Treasury Form 1120 prescribed by Treas. Reg. § 1.6012-2(a)(3) (1968) has places for and requires the proper reporting of gross income, deductions, credits, and allowances. Though the Government may have no liability because of an overpayment caused by non-arm’s-length dealing due to congressional design, the taxpayer does have a liability for an underpayment which liability accrues or vests when the return is due even though the taxpayer may not know the exact amount of that liability. Cf. United States v. Northwestern Mutual Ins. Co., 315 F.2d 723 (9th Cir. 1963). From 1968 on, however, this taxpayer would have been aware of its exact liability on account of Treas. Reg. § 1.482-2(a) (1968) which sets explicit rules for interest-free loans. Therefore, we conclude that a liability resulting from a section 482 allocation is simply part of the general liability imposed by section 11 which requires a return. Thus, interest on a deficiency is computed in accordance with sections 6151(a) and 6601(a).

CONCLUSION

We therefore determine that interest properly runs on an income tax deficiency resulting from an allocation under I.R.C. § 482 from the time the original return was due. Defendant’s cross-motion for summary judgment is granted as to Count I of the petition and plaintiffs motion is denied. Count I of the petition is dismissed.

As to Counts II through VI, summary judgment is denied both parties and the case is remanded to the trial division for further proceedings.

1 I.R.C. § 482 provides:

"In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Secretary may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.”

2 In 1968, the Secretary of the Treasury promulgated regulations specifying that, retroactive to tax years beginning after 1953, interest would be imputed on loans at the rate of 5 percent simple interest if no interest had been charged. See Treas. Reg. § 1.482-2(a)(2)(ii) (1968).

3 Treas. Reg. § 1.482-1(d)(2) (1968) provides that where income or deductions are allocated to one member of a controlled group, correlative adjustments are made to the income or deductions of the other affected member.

4 I.R.C. § 531 provides:

"In addition to other taxes imposed by this chapter, there is hereby imposed for each taxable year on the accumulated taxable income (as defined in section 535) of every corporation described in section 532, an accumulated earnings tax equal to the sum of—

"(1) 27% percent of the accumulated taxable income not in excess of $100,000, plus

"(2) 38% percent of the accumulated taxable income in excess of $100,000.”

5 Subsections (c) and (f) of section 6601, applicable to the tax years in dispute, were redesignated as subsections (b) and (e), respectively, by section 7(b)(1) of the Act of January 3, 1975, Pub. L. No. 93-625, 88 Stat. 2108. For convenience, we will use the current designations of this section.

6 In the case of interest-free loans, imputation of interest income to the lender corporation results in imputation of an interest deduction to the borrower corporation.

7 The Tax Court in Smith-Bridgman & Co. v. Commissioner, supra, 16 T.C. at 294, stated:

"That the respondent did not 'allocate* gross income of Continental to petitioner is apparent, since the record shows that he made no adjustment to the income or deductions of Continental.”

8 Section 45’s purpose was described as follows:

"Section 45 is based upon section 240(f) of the 1926 Act, broadened considerably in order to afford adequate protection to the Government made necessary by the elimination of the consolidated return provisions of the 1926 Act.” [H.R. Rep. No. 2, 70th Cong., 1st Sess. 16-17 (1928); S. Rep. No. 960, 70th Cong., 1st Sess. 24 (1928).]

9 "The tax imposed by section 11 is payable upon the basis of returns rendered by the corporations liable thereto, except that in some cases a tax is to be paid at the source of the income.” Treas. Reg. § 1.11-1(a) (1960).