Headline Publications, Inc. v. Commissioner

Headline Publications, Inc. (Formerly American Boys' Comics, Inc.), Petitioner, v. Commissioner of Internal Revenue, Respondent

Headline Publications, Inc. v. Commissioner

Docket No. 38126

United States Tax Court

28 T.C. 1263; 1957 U.S. Tax Ct. LEXIS 71;

September 30, 1957, Filed

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Decision will be entered under Rule 50.

Petitioner filed a timely refund claim under section 722, I. R. C. 1939, for the fiscal year 1945. The abbreviated claim made no mention of carryover or carryback credits. Petitioner filed an amended claim after the statute of limitations had run asking for an unused excess profits credit carryover from the fiscal year 1944 and carryback from the fiscal year 1946 based on requested section 722 determinations for those years. The amended claim, held, barred by the statute of limitations.

Sidney Gelfand, for the petitioner.

Arthur N. Mindling, Esq., for the respondent.

Kern, Judge.

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KERN

For the fiscal year ended November 30, 1945, respondent determined a deficiency in income tax in the amount of $ 2,124.27 and an overassessment in excess profits tax in the amount of $ 6,726.89. In making such determination, the respondent refused to allow an unused excess profits credit carryover and carryback based on a constructive average base period net income for the years ended November 30, 1944, and November 30, 1946. The parties have stipulated that the sole issue for determination is whether or not the applicable statute of limitations bars the allowance of petitioner's claim to an unused excess profits credit carryover and carryback from the fiscal years 1944 and 1946 to the fiscal year 1945.

FINDINGS OF FACT.

Some of the facts are stipulated. The stipulation, supplemental stipulation, and the exhibits attached thereto are incorporated herein by this reference.

Headline Publications, Inc. (formerly American Boys' Comics, Inc.), hereinafter referred to as petitioner, was incorporated on December 1, 1942, under the laws of the State of New York and adopted a fiscal year ending November 30. The petitioner has its principal office in New York City and at all times relevant herein was engaged in the publication of a comic magazine.

Petitioner timely filed its corporation income, declared value excess-profits, and corporation excess profits tax returns for each of the fiscal years 1944, 1945, and 1946 (taking into consideration extensions of time previously granted) with the then collector of internal revenue for the third district of New York.

The excess profits net income, excess profits credit (on the invested capital credit method), specific exemption, and adjusted excess profits net income shown on petitioner's excess profits tax return for each of the fiscal years ended November 30, 1943, 1944, 1945, and 1946, were as follows:

		Excess
		profits
	Excess	credit		Adjusted
Year ended November 30	profits net	(on the	Specific	excess
	income	invested	exemption	profits net
		capital		income
		credit
		method)
1943	$ 10,110.13	$ 600.00	$ 5,000	$ 4,510.13
1944 8,198.62	1,003.59	5,000	2,195.03
1944 8,198.62	1,003.59	10,000	0
1945	40,812.31	1,632.30	10,000	29,180.01
1946	1,596.18	2,662.87	10,000	0

The excess profits net income, excess profits credit (on the invested capital credit method), specific exemption, and adjusted excess profits net income as determined without the benefit of any relief under section 722 of the Internal Revenue Code of 1939 which were finally accepted or agreed upon after respondent's examination or audit of petitioner's excess profits tax returns for each of the fiscal years ended November 30, 1943, 1944, 1945, and 1946, were as follows:

		Excess
		profits
	Excess	credit		Adjusted
Year ended November 30	profits net	(on the	Specific	excess
	income	invested	exemption	profits net
		capital		income
		credit
		method)
1943	$ 10,110.13	$ 600.00	$ 5,000	$ 4,510.13
1944 8,198.62	1,003.59	5,000	1944 8,198.62	1,003.59	10,000	0
1945	41,386.39	1,632.30	10,000	29,754.09
1946	1,596.18	2,662.87	10,000	0

On October 7, 1947, petitioner filed a timely application on Form 991 for excess profits tax relief under section 722 of the 1939 Code for the fiscal year ended November 30, 1945 (sometimes hereinafter referred to as the original application). This original application was in abbreviated form. By way of answer to the questions set forth on the first page of the printed form, the amount of refund for which the application constituted a claim was asserted to be $ 24,948.91 which corresponded to the total excess profits tax paid (on an excess profits net income of $ 40,812.31) prior to the filing of the application.

The original application was referred to the Section 722Field Committee and was disallowed by that Committee in a report dated January 31, 1949. This determination was then certified, under established procedure, to the chairman of the Excess Profits Tax Council in Washington, D. C. On February 23, 1950, the Council held a conference in connection with its consideration of the claim, at which the petitioner was represented. This was the only conference attended by a representative of petitioner.

In a report covering the Council's determination, dated March 30, 1950, a constructive average base period net income with respect to the fiscal year 1945 was allowed in the amount of $ 10,000. This determination was approved by the Executive Committee of the Council on April 17, 1950, and the case was returned to the New York field office on April 19, 1950. On the same date, a member of the Council notified petitioner's representative by mail that the Executive Committee of the Council had approved the allowance of a constructive average base period net income in the amount of $ 10,000 for each of the fiscal years 1943 and 1945. Thereafter, petitioner was notified by a so-called 30-day letter dated November 17, 1950, that its income and excess profits tax liability for the fiscal year 1945 had been adjusted to the same amounts which were subsequently reflected in the statutory notice of deficiency dated October 5, 1951.

On March 11, 1950, petitioner filed another Form 991 with respect to the fiscal year 1945 on which form the printed heading was altered to read: "Amendment To Application For Relief Under Section 722 of The Internal Revenue Code." This document (hereinafter referred to as the amended claim) was made up of the first two pages of the printed form and a single typewritten sheet which was executed by the petitioner's officers. By way of answers to the questions set forth on the first page of the form, claim was made for the refund of $ 25,474.44 which corresponded to the total amount of excess profits tax which had been paid with respect to the fiscal year 1945. The complete text of the statement (exclusive of verification matter) was as follows:

Further to the application of American Boys' Comics, Inc. for relief from excessive excess profits tax pursuant to the provisions of Section 722 of the Internal Revenue Code, for the fiscal year ended November 30, 1945, claim is hereby made, in the event the excess profits credit determined pursuant to the provisions of Section 722 is an amount not sufficient to eliminate all the excess profits tax for the fiscal year ended November 30, 1945, for an unused excess profits credit carry-over from the fiscal year ended November 30, 1944 and an unused excess profits credit carry-back from the fiscal year ended November 30, 1946.

The taxpayer originally claimed a reconstructed excess profits credit in an amount sufficient to eliminate the entire excess profits tax for the fiscal year ended November 30, 1945 without the benefit of unused excess profits credit carry-over and carry-back. To date no final determination of the reconstructed excess profits credit which the taxpayer is entitled to has been made.

On March 13, 1950, petitioner's representative sent a copy of the amended claim to the respondent for the attention of a representative of the Excess Profits Tax Council. His letter of transmittal contained the following paragraph:

[It] is noted that the form EPC-1 submitted to me at the conclusion of our conference in Washington on February 23rd only provides for a constructive average base period net income for the taxable years ended November 30, 1943 and November 30, 1945. In order to obtain the benefits of unused excess profits credit carry-overs and carry-backs, it is requested that a constructive average base period net income for 1944 and 1946 be set out on form EPC-1. No applications for relief on form 991 were filed for 1944 and 1946 in view of the fact that the excess profits net income in each of those years was less than $ 10,000.00 -- the specific exemption. Therefore, no application was necessary, and in fact would have been out of order.

The letter then continued to ask that there be sent to petitioner's representative "a revised EPC-1 showing constructive average base period net income for the taxable years ended November 30, 1943, November 30, 1944, November 30, 1945, and November 30, 1946."

On March 24, 1950, a member of the Excess Profits Tax Council wrote petitioner's representative informing him that the amended claims had been forwarded to the Section 722Field Committee in New York for action because they were "not properly before the Excess Profits Tax Council as they do not involve any issues under the provisions of section 722 of the Internal Revenue Code but relate only to standard issues." The letter further stated:

The only applications for relief for the two years [1943 and 1945] which are properly before the Council relate to the question of the determination as to whether the taxpayer's excess profits credit for these years, as computed under the invested capital method, is an inadequate standard for determining excess profits by reason of the contention that the taxpayer qualifies for relief under the provisions of section 722 (b) (4), I. R. C. The amended claims relate to the question of a credit carry-back and a credit carry-forward and any action with respect to this question must be initiated by the Section 722Field Committee, Upper New York Division, before the Excess Profits Tax Council can take jurisdiction.

Upon consideration by the Field Committee, it was determined that the amended claims were untimely. Accordingly, they were transmitted along with the section 722 file to the standard issue examining officer for rejection.

Petitioner filed a protest dated December 8, 1950, which was duly considered by the Appellate Division (then the Technical Staff, New York Division) which sustained the examining officer.

On June 21, 1951, in a letter to a representative of respondent, petitioner's representative correctly, but for the first time, stated to respondent that the computations by which he arrived at the sum requested as refund in the original application, which was equal to the total amount of tax paid, included and must have included unused excess profits credit carryovers and/or carrybacks. He went on to say:

It is the taxpayer's contention that the Bureau of Internal Revenue in acting upon the taxpayer's original claim and the computation of the amount of refund had to be on notice of the claim for unused excess profits credit carry-overs and carry-backs even though such claim was not expressed in specific words.

In this letter he enclosed the computations referred to therein which made use of an excess profits credit carryover from 1944 of $ 13,214.38 and a carryback from 1946 of $ 19,816.92.

The statutory notice of deficiency dated October 5, 1951, discloses respondent's refusal to allow any unused excess profits credit adjustment in the computation of petitioner's excess profits tax liability for the fiscal year 1945. The refusal to make this allowance was explained as follows:

It is held that the amended Form 991 filed with the Excess Profits Tax Council on March 15, 1950, in which you claim the benefits of unused excess profits credit carry-forward and carry-back from the fiscal years ended November 30, 1944 and 1946 to November 30, 1945, an issue not contained in the original form 991 covering the fiscal year ended November 30, 1945, is not a timely amendment in respect of such new issue.

Shortly before the trial of this case, and solely for the purpose of stipulating all the necessary factors for its determination, respondent's representatives conferred with petitioner's representatives for the purpose of determining the constructive average base period net income of petitioner for the fiscal years ended November 30, 1944 and 1946.

Upon determining that conditions prevalent during the fiscal years 1943 and 1945 were not different from those in the fiscal years 1944 and 1946, respondent's representatives prepared a Council determination of a constructive average base period net income in the amount of $ 10,000 for each of the fiscal years 1944 and 1946. This Council determination, dated October 17, 1956, was reviewed and approved by the Excess Profits Tax Council Coordinator on October 22, 1956.

The report of the Council determination contained the following paragraphs:

Subsequent to the issuance of the statutory notice, taxpayer filed a timely petition with the Tax Court on December 24, 1951. A hearing before the Tax Court has been set for the Calendar beginning October 22, 1956 in New York, N. Y. It is being contemplated that the case will be submitted to the Tax Court under Rule 30 of its Rules of Practice. The sole issue to be decided by the Court is whether or not the applicable statute of limitations bars the allowance of the taxpayer's claims to unused excess profits credit adjustments in the fiscal year ended November 30, 1945 by reason of an unused excess profits credit carry-over from the fiscal year ended November 30, 1944 and an unused excess profits credit carry-back from the fiscal year ended November 30, 1946.

It is further to be stipulated that should the Court find in favor of the taxpayer with respect to the above issue the CABPNI to be used for the fiscal years ended November 30, 1944 and November 30, 1946 for carry-over and carry-back purposes shall be in the amount of $ 10,000. As a result, a Council determination of a CABPNI for such years is required.

It is therefore determined that a CABPNI of $ 10,000 be allowed for carry-over and carry-back purposes only for the fiscal years ended November 30, 1944 and November 30, 1946. An investigation discloses no changes with respect to the existence of the qualifying factor for such years. The petitioner was operating in the same manner during these two years as it was in the years for which relief had previously been allowed.

OPINION.

The sole issue for our decision is whether or not, under the circumstances here present, the statute of limitations bars the allowance of petitioner's claim to an unused excess profits credit carryover and carryback from the fiscal years 1944 and 1946, respectively, to the fiscal year 1945.

There is no doubt that the amended claim was filed after the statute of limitations had run and thus cannot possibly be considered independently as a timely claim for the benefit of a constructive unused excess profits credit carryover and carryback from the fiscal years 1944 and 1946. Petitioner alleges, however, that its original application inferentially but effectively included a claim for its benefit of an excess profits credit carryover and carryback, since the figure used in the original application as to the amount of refund claimed could not have been arrived at without the inclusion in its computation of claims for a carryover and carryback. Thus, petitioner argues that the amended claim merely sets forth in specific words what was inherent in the original application. Packer Publishing Co., 17 T. C. 882, remanded on other issues 211 F.2d 612">211 F. 2d 612.

In the alternative, petitioner argues that the amended claim may be properly considered since it involved no new research on the part of the respondent, and the facts necessary to dispose of the amended claim must, of necessity, have been considered in conjunction with the original application for a refund. In support of its position, petitioner cites Bemis Bros. Bag Co. v. United States, 289 U.S. 28">289 U.S. 28; United States v. Memphis Cotton Oil Co., 288 U.S. 62">288 U.S. 62; Pink v. United States, 105 F. 2d 183, and the cases decided thereunder. We are unable to agree with petitioner on either theory.

The statutory law, as found in sections 322 (b) (1) and (6), and 722 (d), may be summarized as follows: Section 322 (b) (1) provides that a claim for a credit or refund must be filed within 3 years from the time the return was filed or within 2 years from the time the tax was paid, whichever is the longer period; section 322 (b) (6) provides, in the case of an unused excess profits credit carryback, a special period or limitation which "ends with the expiration of the fifteenth day of the thirty-ninth month following the end of the taxable year of * * * the unused excess profits credit which results in such carryback * * *"; section 722 (d) denies a taxpayer the benefits of section 722, unless within the period of time described by section 322 it makes application for such benefits. The pertinent provisions of Regulations 112, as amended, are set forth in the margin. ^{*87 Petitioner's original application, filed on Form 991, contained very little information. The only figures given were the requested refund of $ 24,948.91, and a requested constructive average base period net income (CABPNI) for the fiscal year 1945 of $ 22,540. The only explanation of the claim given referred to the "details of reconstruction of base period earnings included in data filed with claim for relief from excess profits tax for the fiscal year ended November 30, 1943." Petitioner does not argue that the claim for the fiscal year 1943 included as a ground for relief an unused excess profits credit carryback from the fiscal year 1944. Rather, it argues that the amount of relief claimed for 1945 in the original application could only have been arrived at by including in its computation a consideration of an excess profits credit carryover from 1944 and of a carryback from 1946, each in a considerable amount, and that such a computation was made by petitioner's counsel.}

We assume, arguendo, the correctness of the factual basis for this argument, but we point out that such a computation was not included in the claim for relief and that the fact of such a computation was never in any way communicated to respondent until 1951. Indeed, as late as 1950 it appears to have been forgotten or considered inconsequential by petitioner's counsel himself since, as late as March 11, 1950, he was stating in a formal amendment of petitioner's claim that "taxpayer originally claimed a reconstructed excess profits credit in an amount sufficient to eliminate the entire excess profits tax for the fiscal year ended November 30, 1945 without the benefit of unused excess profits credit carry-over and carry-back." Even assuming the correctness of the facts urged by petitioner, the original application still does not meet the requirements of respondent's regulations. Regulations 112 clearly require that a refund claim for excess profits taxes paid, based on an unused excess profits credit determined on the basis of a CABPNI, must be specifically claimed by the taxpayer. The validity and propriety of these regulations have been repeatedly recognized by this Court. May Seed & Nursery Co., 24 T. C. 1131, affd. 242 F. 2d 151; St. Louis Amusement Co., 22 T. C. 522; Barry-Wehmiller Machinery Co., 20 T.C. 705">20 T. C. 705;Nielsen Lithographing Co., 19 T. C. 605; Lockhart Creamery, 17 T.C. 1123">17 T. C. 1123. It is obvious that merely asking for a larger refund than petitioner would have been entitled to if its CABPNI was determined to be in the amount prayed for is not "a complete statement of the facts upon which [the carryover or carryback claim] is based and which existed with respect to the taxable year for which the unused excess profits credit so computed is claimed to have arisen * * *." No claim for relief under section 722 was ever filed for the fiscal years 1944 and 1946. After a careful scrutiny of the record we can only conclude that petitioner's original application for relief failed to satisfy the requirements set forth in Regulations 112. Barry-Wehmiller Machinery Co., supra.

Petitioner relies heavily on Packer Publishing Co., supra, and Wilmington Gasoline Corporation, 27 T.C. 500">27 T. C. 500. In the Packer Publishing case, however, we found as a fact that (p. 892) --

[Petitioner's] application for relief for 1944 contained, among other matters, a computation of tax which took account of an unused excess profits credit carryover from 1942 in an amount equal to the unused excess profits credit carryover from 1942 shown in its application for relief for 1943. The application for relief for 1944 stated that it incorporated by reference all matters contained in relief applications for other years, and stated that it relied for support of the claim upon the statement of facts attached to the application for relief for 1943. * * *

In the instant case, there was no incorporation by reference of any prior claim of, or specific reference to, a carryover or carryback, nor was the computation of tax referred to by petitioner contained in the application for relief for 1945.

Petitioner's reliance on Wilmington Gasoline Corporation, supra, is misplaced. There is no doubt that respondent can waive the specificity required in his regulations, and that a consideration of the merits of the claim may act as such waiver. United States v. Andrews, 302 U.S. 517">302 U.S. 517; United States v. Garbutt Oil Co., 302 U.S. 528">302 U.S. 528. See also United States v. Memphis Cotton Oil Co., supra;Eisenstadt Manufacturing Co., 221">28 T. C. 221; Wilmington Gasoline Corporation, supra;Martin Weiner Corp., 26 T.C. 128">26 T. C. 128. In this case, however, the record clearly indicates no waiver by the respondent, either expressed or implied. The Field Committee originally rejected the amended claim as untimely. The statutory notice of deficiency, dated October 5, 1951, does not go into the merits but rather disallows the carryover and carryback solely on the ground that the amended claim was not timely filed. In 1956 (shortly before the trial of this case), and solely for the purpose of stipulating all the factors necessary to a decision by this Court, respondent's agents determined the CABPNI for the fiscal years 1944 and 1946 after a conference with petitioner's representative. This determination was affirmed by the Excess Profits Tax Council. Its report indicates that this determination would become necessary if we found in favor of the taxpayer on the statute of limitations issue. Under these circumstances we cannot hold that the respondent waived the requirements contained in his regulations by a consideration on the merits of the amended claim.

We are not unmindful of the recent decision of the Seventh Circuit in H. Fendrich, Inc. v. Commissioner, 242 F.2d 803">242 F. 2d 803, reversing 25 T. C. 262, called to our attention by petitioner in a supplemental reply brief. In that case, petitioner amended its section 722 refund claim after the statute of limitations had expired but before a Tax Court decision had been rendered so as to include a new "standard issue" claim. The Seventh Circuit held that petitioner's timely application for relief under section 722 suspended the statute of limitations as to all pertinent issues for the same year, provided such issues were raised before a final determination was made on the 722 issue. The factual differences between that case and the instant case are readily apparent. In the instant case the amended claim did not involve "standard issues" relating to the same taxable year but another 722 issue involving different years and relating to claims for carryover and carryback of unused excess profits credits from those years for which no refund claims were timely filed. In the presence of such factual differences we cannot regard the decision in the Fendrich case as controlling herein.

In the alternative, petitioner contends that the amended claim, though filed in 1950, was not barred by section 322 since action on the amended claim did not entail any new research and, therefore, was a permissible amendment to the original application and not a new claim. Petitioner contends that so long as all the facts were "knowable to the respondent so that no new research was required of him," the amended claim is timely since it was filed before rejection of the original application.

The general rule involved was succinctly set forth by the Second Circuit in Pink v. United States, supra.

Where the facts upon which the amendment is based would necessarily have been ascertained by the commissioner in determining the merits of the original claim, the amendment is proper. Bemis Bros. Bag Co. v. United States, 289 U.S. 28">289 U.S. 28 * * *; United States v. Memphis Cotton Oil Co., 288 U.S. 62">288 U.S. 62 * * *; United States v. Factors & Finance Co., 288 U.S. 89">288 U.S. 89 * * *. The rule is otherwise when the amendment requires the examination of new matters which would not have been disclosed by an investigation of the original claim. United States v. Andrews, 302 U.S. 517">302 U.S. 517 * * *; United States v. Garbutt Oil Co., 302 U.S. 528">302 U.S. 528 * * *; Marks v. United States, 2 Cir., 98 F. 2d 564 * * *

In our opinion, the original application did not adequately apprise the respondent of the requested carryover and carryback. The original application called on the respondent to investigate only the fiscal year 1945. Respondent had no need to and, in fact, did not ascertain the relevant facts necessary for determination of the amended claim. Investigation of the requested carryover and carryback of necessity requires investigation of the question as to the correct CABPNI for the fiscal years 1944 and 1946. Thus, when the parties desired to stipulate the CABPNI for the fiscal years 1944 and 1946 for the purposes of this trial, a further investigation had to be held and more information was elicited. The fact that some of this information was negative in character and to the effect that there was no material change in petitioner's business for 1944 and 1946 is irrelevant; it was still information elicited by further investigation. For these reasons we think the amended claim called for an investigation of facts and circumstances not called for by the original application and was thus barred by section 322. Pink v. United States, supra;Utility Appliance Corporation, 26 T.C. 366">26 T. C. 366.

On brief, the respondent has conceded that petitioner is entitled to carry back to the year 1945 an unused excess profits credit as determined on the invested capital credit basis for the fiscal year 1946. Because of this concession, a Rule 50 recomputation is necessary, in which effect will also be given to the agreements reached by the parties relating to other issues originally raised by the pleadings.

Reviewed by the Special Division.

Decision will be entered under Rule 50.

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Footnotes

• 1. For purpose of computation under 1943 rates.↩

• 2. For purpose of computation under 1944 rates.↩

• 1. For purpose of computation under 1943 rates.↩

• 2. After allowance of unused excess profits credit of $ 1,066.69 arising in the fiscal year ended November 30, 1946, as an unused excess profits credit carryback adjustment in the fiscal year ended November 30, 1944.↩

• 3. For purpose of computation under 1944 rates.↩

• 1. In 1948 an additional $ 525.53 was paid, making a total of $ 25,474.44.↩

• 2. Sec. 35.722-5. Application for Relief Under Section 722. -- (a)Requirements for filing. -- Except as provided in section 710 (a) (5) and section 35.710-5 (relating to deferment of payment of excess profits tax in certain cases under section 722) and except as provided in (d) of this section, the taxpayer is not permitted to claim the benefits of section 722 in computing its excess profits tax on its return, but must compute its excess profits tax, file its excess profits tax return, and pay the tax thus shown on such return without regard to the provisions of section 722. To obtain the benefits of section 722 for any taxable year, the taxpayer must, within the period of time for filing a claim for credit or refund and subject to the limitation as to amount of credit or refund prescribed by section 322 as applicable to the taxable year for which relief is claimed, file under oath an application on Form 991 (revised January, 1943) for the benefits of section 722, unless the taxpayer has deferred on its return a portion of its excess profits tax under section 710 (a) (5), or unless the provisions of (d) and (e) of this section are applicable to the taxpayer. * * *

  * * * *

  Except as otherwise provided in this section, the application on Form 991 (revised January, 1943) must set forth in detail and under oath each ground under section 722 upon which the claim for relief is based, and facts sufficient to apprise the Commissioner of the exact basis thereof. It is incumbent upon the taxpayer to prepare a true and complete claim and to substantiate it by clear and convincing evidence of all the facts necessary to establish the claim for relief; failure to do so will result in the disallowance of the claim. * * * No new grounds presented by the taxpayer after the period of time for filing a claim for credit or refund prescribed by section 322, and no new grounds or additional facts presented after the disallowance, in whole or in part, of the application for relief and the claim for refund based thereon, will be considered in determining whether the taxpayer is entitled to relief or the amount of the constructive average base period net income to be used in computing such relief for the taxable year.

  * * * *

  In order to obtain the benefits of an unused excess profits credit for any taxable year for which an application for relief on Form 991 (revised January, 1943) was not filed, using the excess profits credit based on a constructive average base period net income as an unused excess profits credit carry-over or carry-back, the taxpayer, except as otherwise provided in (d) of this section, must file an application on Form 991 (revised January, 1943) for the taxable year to which such unused excess profits credit carry-over or carry-back is to be applied within the period of time prescribed by section 322 for the filing of a claim for credit or refund for such latter taxable year. In addition to all other information required, such application shall contain a complete statement of the facts upon which it is based and which existed with respect to the taxable year for which the unused excess profits credit so computed is claimed to have arisen, and shall claim the benefit of the unused excess profits credit carry-over or carry-back. * * *↩