Fishbeck Awning Co. v. Commissioner

Fishbeck Awning Company, Limited, Petitioner, v. Commissioner of Internal Revenue, Respondent

Fishbeck Awning Co. v. Commissioner

Docket No. 26701

United States Tax Court

19 T.C. 773; 1953 U.S. Tax Ct. LEXIS 246;

January 28, 1953, Promulgated

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">*246 Decision will be entered under Rule 50.

Petitioner held entitled to relief under section 722 (b) (4) by reason of changes in its business made during the base period years. Constructive average base period net earnings determined on the evidence.

Simon Inselbuch, Esq., for the petitioner.

R. E. Maiden, Jr., Esq., and R. B. Sullivan, Esq., for the respondent.

LeMire, Judge.

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LeMIRE

">*247 ">*773 The Commissioner of Internal Revenue, in his deficiency notice, determined deficiencies in petitioner's income and excess profits taxes ">*774 for the taxable years ended December 31, 1944, and 1945, in the following amounts:

Year	Income tax	Excess profits tax
1944	$ 1,357.10	$ 8,597.97
1945	1,357.10	5,075.77

In the same notice he made a partial disallowance of petitioner's claims for refund under section 722, Internal Revenue Code, for the years 1942 to 1945, inclusive. Certain issues relating to the income and excess profits taxes have been settled by the pleadings and stipulation, leaving only the 722 relief issue for determination.

FINDINGS OF FACT.

The following facts are substantially those found by the hearing Commissioner which for the most part were stipulated with the addition of certain other dispositive findings:

1. The petitioner is a corporation organized under the laws of the State of California on July 1, 1931 (after operating for more than 30 years as a single proprietorship), having its office and principal place of business at 111 W. Colorado Street, Pasadena 1, California.

2. Petitioner is entitled to use the excess profits credit">*248 based on income pursuant to section 713 of the Internal Revenue Code, as amended.

3. Petitioner timely filed with the respondent applications for relief under section 722 on Form 991 for the calendar years 1942 to 1945, inclusive, and for carry-over of unused excess profits credits under section 710 and 722 from the years 1940, 1941, and 1942 to the years 1942, 1943, and 1944, respectively. In these applications petitioner claimed a "constructive average base period net income" under section 722 (b) (1) and (b) ( 4), Internal Revenue Code, for each of the years of $ 39,584.71. ^{section 722 and pursuant to section 732, Internal Revenue Code. Respondent has determined the constructive average base period income to be $ 13,551 for each 1953 U.S. Tax Ct. LEXIS 246">*249 of the years 1942 to 1945, inclusive; $ 11,261 for the year 1940; and $ 13,551 for the year 1941 for the purpose of carry-over of unused credit to the year 1942.}

5. The petitioner and the respondent executed waiver agreements pursuant to section 276 (b), Internal Revenue Code, for the years, upon the dates, and fixing the time for assessment, as follows:

Year	Date of execution	Date of expiration
1943	February 18, 1947	June 30, 1948
1944	January 27, 1948	June 30, 1949
1945	January 3, 1949	June 30, 1950

">*775 6. The Petitioner made payments of excess profits taxes and filed claims for refund thereof pursuant to sections 722 and 322, Internal Revenue Code, as follow:

Year	Date of payment		Date claim
			filed
1942	Mar. 15, 1943	$ 2,786.27	Mar. 15, 1943
	June 15, 1943	2,786.26	Mar. 5, 1945
	Sept. 15, 1943	2,786.26
	Dec. 15, 1943	2,786.27
Total		11,145.06
1943	Mar. 15, 1944	13,500.00	Mar. 19, 1946
	June 15, 1944	12,850.45	Feb. 21, 1947
	Sept. 14, 1944	12,671.48	July 26, 1949
	Dec. 15, 1944	11,342.07
	Dec. 12, 1947		Jan. 12, 1948	1,285.87
	Sept. 30, 1948	6,036.52
Total
1944	Mar. 13, 1945	7,853.60	Mar. 13, 1945
	June 15, 1945	7,853.60	June 20, 1949
	Sept. 11, 1945	6,277.88
	Oct. 29, 1945		Dec. 14, 1945	6,377.90
	Oct. 7, 1948	2,797.49
Total		34,311.91
1945	Mar. 15, 1946	6,107.68	Mar. 19, 1946
	June 17, 1946	6,107.68	June 20, 1949
	Sept. 16, 1946	6,107.68
	Dec. 13, 1946	6,107.58
Total		$ 24,430.62

">*250

7. As of January 1, 1935, the petitioner's business was entirely in the retail field and included goods manufactured by petitioner and others. At that time the petitioner was manufacturing awnings, truck covers, and other canvas products as well as upholstering and making couch swings. The retailing of others' products consisted of garden and beach umbrellas, metal umbrella tables, venetian blinds, and metal and wood summer outdoor furniture (started in 1934). Early in 1935 the petitioner added window shades and garden furniture to its retailing line. Its accounting records to this point broke down sales into two sections -- one division for awnings and the balance was called "other sales." In October 1935 the petitioner added a line of linoleum to its retailing business and has always kept the sales in that department as a separate unit. During 1936 the petitioner added the rental of">*251 equipment for parties and camping, and installed a paint shop at 51 Dayton Street (new addition) for the painting of customers' garden furniture and the refinishing of venetian blinds. In November 1937 there was added the manufacture of cushions for the trade (other merchants). Cushions had previously been made to retail customers' ">*776 orders only. The retailing line was again added to late in 1938 (September or October) by the inclusion of summer and garden outdoor furniture and in the spring of 1939 by the further addition of indoor summer type furniture. The petitioner threw all this additional business in its classification "other sales," excepting the awning and linoleum lines.

8. During 1938 petitioner became interested in the manufacture and sale of rattan products and found a company, namely, the Rattan Products Company, which had ceased its business functions. In August of 1938 the petitioner acquired all of the assets of the aforementioned Rattan Company which had previously imported rattan furniture frames from the Philippines, cushioned and sold same. No good will or customers were acquired. The petitioner upon acquisition of these inventories also temporarily">*252 took over the warehouse occupied by the former Rattan Products Company and proceeded to finish and sell some of the inventory so acquired. During 1939 petitioner developed additional types of rattan furniture and refined certain types for sale as indoor furniture. It also added to its operation the manufacture of wooden outdoor furniture, using principally Douglas fir. This furniture manufacturing division was called Tropical Sun Company.

9. During and immediately prior to the base period the petitioner occupied premises, all located in Pasadena, California, at the times and with the areas and purposes as follows:

Date	Address	Square feet
Jan. 1, 1935	117 W. Colorado Street	1,250
1935	111 W. Colorado Street	5,500
	Plus balcony	1,250
1936	117 W. Colorado Street	1,250
1936	51 Dayton Street	7,200
1938	109 W. Colorado Street	2,500
1939	150 S. Raymond Street	25,000

Date	Address	Purpose
Jan. 1, 1935	117 W. Colorado Street	Retailing. Vacated in 1935.
1935	111 W. Colorado Street	Retailing.
	Plus balcony	Retailing.
1936	117 W. Colorado Street	Retailing (re-occupied).
1936	51 Dayton Street	Painting, renovation and storage.
1938	109 W. Colorado Street	Retailing.
1939	150 S. Raymond Street	Furniture manufacturing and canvas
		sewing.

">*253 10. During 1938 and later years the taxpayer rented space in the Los Angeles and San Francisco furniture marts for the purpose of promoting sales of rattan furniture.

11. During the base period the taxpayer made the following additions to shop equipment and delivery equipment, respectively:

	Shop	Delivery
Year	equipment	equipment
1936	$ 82.64	$ 3,317.90
1937	330.43	1,728.10
1938	241.96	971.33
1939	424.77	2,937.81

12. During the early part of 1939 most of the petitioner's rattan furniture was manufactured for it by an outside contractor. During the latter part of 1939 this contracting practice was continued for a ">*777 portion of such furniture and a portion thereof was manufactured at 150 S. Raymond Street, and assembled at 51 Dayton Street.

13. A fire occurred on petitioner's premises, known as 51 Dayton Street, Pasadena, California, on or about April 9, 1939. Such premises had been used for storing petitioner's and customers' goods as well as a paint shop for refinishing garden furniture and renovating venetian blinds, and as a garage for petitioner's delivery equipment. The direct monetary loss from this fire is shown by the petitioner's records for ">*254 1939 as follows:

Loss of, and repairs to, delivery trucks	$ 1,367.13
Steam cleaning and painting	87.10
Destruction of petitioner's merchandise	9,137.24
Settlement to customers, damage to their goods in storage or
being renovated	5,685.13
Total	16,276.60
Insurance received on trucks	1,328.83
Insurance received on merchandise and supplies	13,000.00
Salvage sales	486.18
Total recovery	14,815.01
Net direct monetary loss from fire	1,461.59

14. The actual sales of the petitioner, broken down departmentally, during the base period years, were as follows:

					Tropical	Total
	Linoleum	Awnings	Other	Subtotal	Sun	all sales
1936
Jan	$ 686.56	$ 1,191.46	$ 2,633.20	$ 4,511.22		$ 4,511.22
Feb	795.67	1,331.80	2,455.24	4,582.71		4,582.71
Mar	2,744.34	1,871.75	3,209.89	7,825.98		7,825.98
Apr	2,625.48	3,687.15	4,489.46	10,802.09		10,802.09
May	3,141.95	4,083.45	4,640.27	11,865.67		11,865.67
June	2,086.74	4,207.59	5,164.14	11,458.47		11,458.47
July	2,218.02	2,960.52	4,170.44	9,348.98		9,348.98
Aug	2,211.96	2,198.86	5,142.25	9,553.07		9,553.07
Sept	4,258.12	2,814.59	3,557.99	10,630.70		10,630.70
Oct	3,248.42	2,453.40	5,552.68	11,254.50		11,254.50
Nov	2,674.82	2,689.21	4,086,14	9,450.17		9,450.17
Dec	5,409.14	3,411.04	6,399.08	15,219.26		15,219.26
Total	32,101.22	32,900.82	51,500.78	116,502.82		116,502.82
1937
Jan	2,158.62	1,475.75	4,276.97	7,911.34		7,911.34
Feb	3,078.32	1,484.64	2,743.98	7,306.94		7,306.94
Mar	3,301.00	3,803.38	3,766.21	10,870.59		10,870.59
Apr	3,364.38	4,372.21	5,452.24	13,188.83		13,188.83
May	3,051.06	4,476.65	11,236.11	18,763.82		18,763.82
June	4,840.42	6,439.59	7,862.56	19,142.57		19,142.57
July	3,308.33	3,291.64	6,770.10	13,370.07		13,370.07
Aug	6,447.39	4,149.47	5,967.58	16,564.44		16,564.44
Sept	5,710.92	3,445.48	5,206.66	14,363.06		14,363.06
Oct	5,241.83	4,878.99	4,699.22	14,820.04		14,820.04
Nov	4,748.77	3,386.70	5,085.72	13,221.19		13,221.19
Dec	4,787.20	2,608.03	5,311.91	12,707.14		12,707.14
Total	50,038.24	43,812.53	68,379.26	162,230.03		162,230.03
1938
Jan	3,527.71	1,857.09	5,028.50	10,413.30		10,413.30
Feb	3,198.87	2,995.70	3,177.75	9,372.32		9,372.32
Mar	1,999.17	3,308.19	5,505.47	10,812.83		10,812.83
Apr	3,175.25	4,475.57	7,010.30	14,661.12		14,661.12
May	3,730.32	6,735.35	7,496.37	17,962.04		17,962.04
June	3,917.40	4,856.78	8,873.30	17,647.48		17,647.48
July	4,366.54	3,229.59	7,714.77	15,310.90		15,310.90
Aug	5,558.40	2,725.93	6,683.18	14,967.51	$ 5,474.88	20,442.39
Sept	5,332.63	1,961.42	5,982.62	13,276.67	2,467.69	15,744.36
Oct	5,516.29	6,072.01	4,663.71	16,252.01	1,976.43	18,228.44
Nov	4,624.18	1,528.80	6,418.64	12,571.62	3,114.13	15,685.75
Dec	3,699.89	2,651.23	6,712.62	13,063.74	5,596.72	18,660.46
Total	48,646.65	42,397.66	75,267.23	166,311.54	18,629.85	184,941.39
1939
Jan	3,753.15	1,724.26	5,032.74	10,510.15	2,203.15	12,713.30
Feb	2,615.63	2,046.68	3,172.55	7,834.86	9,272.82	17,107.68
Mar	3,462.44	5,625.14	5,861.01	14,948.59	7,721.07	22,669.66
Apr	2,566.96	5,790.98	7,417.92	15,775.86	8,439.86	24,215.72
May	2,881.79	3,018.57	9,733.78	15,634.14	8,094.66	23,728.80
June	3,002.01	3,672.18	10,080.67	16,754.86	7,433.90	24,188.76
July	3,818.60	2,684.53	7,115.00	13,618.13	6,936.41	20,554.54
Aug	3,307.02	1,739.84	5,981.41	11,028.27	7,077.56	18,105.83
Sept	4,917.35	1,816.17	6,630.00	13,363.52	8,772.80	22,136.32
Oct	4,032.39	4,291.19	5,214.57	13,538.15	6,700.99	20,239.14
Nov	2,377.53	1,644.97	5,087.05	9,109.55	6,242.08	15,351.63
Dec	4,374.25	2,057.70	6,972.24	13,404.19	3,454.88	16,859.07
Total	41,109.12	36,112.21	78,298.94	155,520.27	82,350.18	237,870.45

">*255

Summary total sales exclusive of Tropical Sun Department
		Less return	Total net
	Total	sales	sales
1936	$ 116,502.82	$ 1,550.52	$ 114,952.30
1937	162,230.03	1,459.51	160,770.52
1938	166,311.54	2,089.27	164,222.27
1939	155,520.27	1,673.62	153,846.65

">*778 15. The actual cost of goods sold, materials, and labor, of the petitioner for the base period years, follows:

		1938		1939
1936 1937 1	Depts. other		Depts. other
		than Trop.	Trop. Sun	than Trop.	Trop. Sun
		Sun Furn.	Furn. Mfg.	Sun Furn.	Furn. Mfg.
		Mfg.		Mfg.
$ 81,038	$ 118,321	$ 122,364	$ 12,895	$ 112,463	$ 56,018
Totals for 1938 and 1939		135,259		168,481

16. The actual totals, operating, selling, and administrative expenses of the petitioner and its actual excess profits net income for the base period follow:

	1936	1937
Operating, selling and administrative expenses	$ 31,915	$ 40,559
Excess profits net income	1,970	1,891

	1938	1939
Operating, selling and administrative expenses	$ 43,964	$ 58,746
Excess profits net income	3,629	8,970

">*256 ">*779 17. The details of the actual operating, selling, and administrative expenses are:

	1936	1937	1938	1939
Officers' salaries and bonuses	$ 13,265	$ 16,000	$ 16,598	$ 18,862
Salaries and wages	1,693	2,860	2,747	10,717
Sales commissions	5,582	6,261	5,562	6,340
Rent	900	1,300	2,156	3,671
Bad debts	2,504	1,529	158	1,022
Interest paid	272	225	217	763
Taxes	545	1,771	2,927	3,985
Depreciation	1,102	1,653	1,781	2,215
Delivery expense	901	1,514	1,638	1,647
Car expense	694	756	2,209	1,249
Repairs and equipment upkeep	144	329	648	715
Dues, subscriptions, contributions	248	219	255	225
Light and power	194	200	271	343
Discounts allowed			222
Miscellaneous	4	283	283	191
Advertising	1,025	1,739	1,622	1,860
Licenses	79	104	111	167
Insurance	747	1,874	1,368	1,822
Office and store supplies	478	501	1,316	690
Telephone and telegraph	488	541	737	1,302
Storage	1,050	900	1,138	960
Total	31,915	40,559	43,964	58,746

18. The total operating, selling, and administrative expenses of petitioner for 1938 and 1939, as shown in paragraphs 16 and 17, were allocated in petitioner's books to Tropical ">*257 Sun and the other departments as follows:

	1938
Expenses	Stipulated	Fishbeck	Tropical
Officers' salaries and bonuses	$ 16,598	$ 16,598.25
Salaries and wages	2,747		$ 2,445.97
Indirect labor		188.32
Bonuses -- others		97.75	15.00
Commissions	5,562	5,114.62	446.87
Rent	2,156	1,500.00	655.64
Bad debts	158	157.80
Interest paid	217	217.13
Taxes	2,927	2,786.31	140.31
Depreciation	1,781	1,732.02	49.02
Delivery expense and freight
out	1,638	1,460.82	156.30
			21.30
Car and salesmen's expense	2,209	1,202.28	1,007.02
Repairs and equipment upkeep	648	615.97	30.92
		1.50
Dues, subscriptions and contributions	255	215.49
		40.00
Light and power	271	258.58	12.44
Discounts allowed	222		222.21
Miscellaneous	283	.50	73.84
		77.86
		130.62
Advertising	1,622	1,561.68	59.83
Licenses	111	110.00	1.00
Insurance	1,368	1,305.46	62.64
Office and store supplies	1,316	508.81	330.34
		150.89	23.24
			303.29
Telephone and telegraph	737	562.01	174.58
Storage	1,138	1,138.00
Total	43,964	37,732.67	6,231.76

	1939
Expenses	Stipulated	Fishbeck	Tropical
Officers' salaries and bonuses	$ 18,862	$ 18,862.00
Salaries and wages	10,717		$ 10,269.65
Indirect labor		206.80
Bonuses -- others		211.65	28.50
Commissions	6,340	4,721.73	1,618.02
Rent	3,671	1,995.00	1,676.00
Bad debts	1,022	414.27	607.45
Interest paid	763	760.00	2.57
Taxes	3,985	3,491.54	493.47
Depreciation	2,215	2,080.12	134.84
Delivery expense and freight
out	1,647	1,424.48	162.86
			60.08
Car and salesmen's expense	1,249	999.70	249.80
Repairs and equipment upkeep	715	680.82	15.75
		18.51
Dues, subscriptions and contributions	225	184.75
		40.00
Light and power	343	312.50	30.54
Discounts allowed
Miscellaneous	191	266.28	(75.15)
Advertising	1,860	1,190.29	669.70
Licenses	167	99.37	67.50
Insurance	1,822	1,589.35	232.43
Office and store supplies	690	459.75	678.24
		1.03	114.49
		(562.98)
Telephone and telegraph	1,302	606.27	695.59
Storage	960	960.00
Total	58,746	41,013.23	17,732.33

">*258 ">*780 19. In addition to the property losses referred to in paragraph 13 above, the fire at petitioner's plant in April 1939 adversely affected its business and resulted in the loss of some of its customers. It also caused a temporary increase in petitioner's expenses.

20. Petitioner obtained the rattan which is used in the manufacture of furniture from the Philippine Islands. In 1939 it experienced some difficulty in getting shipments of rattan delivered due to the wartime demands on shipping facilities and general business conditions in the Philippines.

21. The respondent computed petitioner's constructive average base period net income after adjusting actual sales, as shown in paragraph 14 above, with the California furniture index as follows:

Computation of constructive average base period net income for the taxable years ended Dec. 31, 1941, 1942, 1943, 1944, and 1945

	Base period years
	1936	1937	1938	1939
Index	91.88	110.61	96.70	100.81
Sales, actual:
Linoleum division	$ 32,101	$ 50,038	$ 48,647	$ 41,109
Awning division	32,901	43,813	42,398	36,112
Other sales	49,950	66,920	73,178	Tropical Sun division			18,630	82,350
Totals	114,952	160,771	182,853	236,196
Sales, constructive:
Linoleum division	3 43,745	3 45,605
Awning division	3 36,392	1 43,812	3 38,301	3 39,929
Other sales	3 63,650	2 76,625	3 66,989	3 69,836
Tropical Sun division	5 153,203	5 133,938	5 139,630
Totals	4 323,678	4 282,973	4 295,000
Normal earnings, constructive:
Tropical Sun division:
Sales, constructive	127,261	153,203	133,938	139,630
Net earnings, constructive (8%
of sales, constructive)	6 12,256	6 10,715	6 11,170
Net earnings, actual (loss)			(497)	7,234
Increase, constructive
over actual earnings	10,181	12,256	11,212	3,936
Fire loss, etc				160
Actual earnings	1,970	1,890	3,629	8,970
Normal earnings	12,151	14,146	14,841	13,066
Constructive average base period net income				$ 13,551

">*259

22. Petitioner's average base period net income is an inadequate standard of normal earnings because petitioner changed the character of its business during the base period, and its earnings had not reached the level at the end of the base period which they would have reached had the changes taken place two years before they did.

">*781 23. A fair and just amount representing petitioner's normal average base period net earnings is $ 25,000.

OPINION.

The question in issue here is whether petitioner is entitled under the relief provisions of section 722, particularly subsections (b) (1) and (b) (4), to a greater average base period net">*260 income, and consequently a greater excess profits credit, for the years 1942 to 1945, inclusive, than that allowed by the respondent on the applications for relief filed by the petitioner for those years.

Petitioner contends that it qualifies for relief under subsection (b) (1) by reason of the fire which occurred in its plant in 1939, and also under subsection (b) (4) by reason of the changes in the character of its business which occurred during the base period. The respondent has accepted petitioner's qualifications under (b) (4) by reason of the expansion of petitioner's retail business and the addition of its wholesale department, Tropical Sun, in the base period years, and has made a partial allowance of petitioner's claims under this subsection which petitioner deems inadequate. Whether petitioner also qualifies for relief under subsection (b) (1), it is not necessary to decide.

The real difference between the parties lies in the reconstruction of petitioner's normal base period income. The respondent's computation is shown in finding 21, above.

Nothing would be gained here by a prolonged discussion of the methods used and the various steps taken by the petitioner in its">*261 proposed reconstruction of sales and expenses and of respondent's objections to them. The proposed computations involved various business indices, mathematical formulae, and the testimony of expert witnesses. We have undertaken to evaluate the evidence, and the arguments, so as to apply the relief provisions of the statute as accurately and equitably as possible.

We are satisfied on the evidence that petitioner is entitled to a somewhat higher average base period net income than allowed by the respondent. On the other hand, we think that the petitioner has been over optimistic in its reconstruction of base period earnings. For instance, the evidence, in our opinion, fails to support petitioner's contention that the fire which occurred in its plant in April 1939 caused a loss of $ 150,000 in retail sales of that year.

Respondent's reconstructive Tropical Sun sales for 1939 of $ 139,630 are, we think, too low. This department was opened in August 1938. It was strictly a wholesale business, whereas petitioner's previous experience had all been in the retail field. Sales for the balance of the year 1938 amounted to $ 18,629.85 and for the entire year 1939 ">*782 were $ 82,350.18. ">*262 There was reason to believe that the business would continue to grow. We do not suggest that prospects as of December 31, 1939, for growth in years after 1939 may be taken into account. We mean only that if petitioner had had the advantage of two additional years' experience during the base period with its Tropical Sun department, it would have attained a higher level of earnings by the end of 1939.

We have concluded and found as a fact that $ 25,000 is a fair and just amount to represent the petitioner's normal average base period net earnings, after determining what the earnings at the end of the base period would have been had the changes taken place two years earlier than they did and after making proper allowance for fire loss and other unusual events shown by the evidence and for the growth of the new lines of business that were added in the latter part of 1938 and early in 1939.

Reviewed by the Special Division.

Decision will be entered under Rule 50.

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Footnotes

• 1. This amount should be $ 45,835. Error made in computation, as shown by Schedule B of amendment to claim dated February 26, 1945, and filed March 5, 1945.↩

• 1. 10% postwar refund on additional tax for 1943 of $ 8,135.99, assessed in 1947.↩

• 2. This total tax of $ 58,499.99 for 1943 was also reduced in the amount of $ 5,036.40, the postwar refund on the original tax of $ 50,364.↩

• 3. 10% postwar refund on original tax of $ 31,514.42 for 1944.↩

• 1. In 1936 and 1937 the Tropical Sun Furniture Manufacturing had not been started.↩

• 2. Actual sales, 1939. [The stipulated figure is $ 78,298.94. See finding 14 above.]↩

• 3. Constructive sales based on application of index to 1937 sales, actual and constructive.↩

• 1. Actual sales.↩

• 5. Constructive sales applicabe to Tropical Sun after normalization of other departments.↩

• 4. Constructive sales from certification of field determination and revenue agent's reports.↩

• 6. Constructive ratio, 8% of sales, is based on actual experience of the Tropical Sun division, as disclosed by additional data submitted in conference.↩