DocketNumber： Docket No. 51364
Judges： Bruce
Filed Date： 6/29/1956
Status： Precedential
Modified Date： 11/14/2024
Petitioner, an accrual basis taxpayer, performed work on a long-term electrical construction contract for the National Tube Company during the years 1947, 1948, 1949, and 1950 on a basis of cost (subject to change order adjustments) plus a percentage fee based upon "estimated cost." Payment to petitioner was made periodically for material purchased and labor expense plus a portion of the fee. The balance of the fee (less penalty or plus bonus for "under" or "overestimation" of cost) became due upon completion of the work.
26 T.C. 782">*783 Respondent has determined deficiencies in petitioner's income and excess profits taxes as follows:
| Year | Deficiency |
| 1950 | $ 51,829.19 |
| 1951 | 11,024.73 |
Petitioner claims overpayments for the years 1950 and 1951 in the amounts of $ 131,225.12 and $ 28,290.86, respectively.
The entire amounts of these deficiencies and claimed overpayments are in controversy, except for a small portion of each deficiency attributable to miscellaneous minor adjustments not contested by petitioner.
The issues presented are:
(1) Whether respondent has correctly included in petitioner's income for 1950 $ 79,288.85, the portion of the base fee billed National Tube Co. during the years 1947, 1948, and 1949 and which did not become payable until 1950.
(2) Whether any portions of the base fee and bonus reported by petitioner as income in 1950 were improperly included in such income for the reason that they were accruable in a prior year.
FINDINGS OF FACT.
Some of the facts were stipulated and are included herein by this reference.
The petitioner is an Ohio corporation with its principal place of business in Cleveland, Ohio. It is primarily engaged in the electrical contracting business. At all times material 1956 U.S. Tax Ct. LEXIS 136">*138 to this proceeding petitioner kept its books and filed its income tax returns on a calendar year basis and an accrual method of accounting. Petitioner filed its income and excess profits tax returns for the years 1950 and 1951 with the then collector of internal revenue for the eighteenth district of Ohio.
In the spring of 1947 petitioner received from the National Tube Company (hereinafter referred to as National) a purchase order dated May 1, 1947, for the electrical construction work incident to the installation of a new blooming, bar, and billet mill at the Lorain, Ohio, plant of National. Petitioner had previously done the electrical construction work for a number of similar mills and was regarded as a specialist in that field. This work, which was commenced in 1947 and completed in 1950, was performed pursuant to the aforementioned purchase order as supplemented by Purchase Order Change 26 T.C. 782">*784 No. 1, dated May 16, 1947 (hereinafter collectively referred to as the contract).
The contract provided that the petitioner would receive reimbursement in full for the actual costs incurred by it in performing the electrical construction work and would also receive a base fee equal to 7 1/2 per 1956 U.S. Tax Ct. LEXIS 136">*139 cent of the amount of a "cost estimate" for the work computed by petitioner on the basis of the costs of all materials and wage rates prevailing as of May 1, 1947, without allowance for premium pay for overtime work. In the event of subsequent increases or decreases in the scope of the work to be performed by the petitioner, the contract provided for an adjustment in the cost estimate and a corresponding adjustment in the petitioner's base fee so as to equal 7 1/2 per cent of the adjusted cost estimate.
The petitioner's base fee was also subject to adjustment if its cost estimate, as adjusted by changes in the scope of the work, was greater or less than the "adjusted actual cost." The provisions of the contract in this regard read as follows:
Upon completion of the work, a study of the actual costs shall be made to show what the total cost of the work would have been, based on material costs and wage and salary rates (including American Federation of Labor Building Trade wage rates for the Lorain, Ohio area prevailing on the date of this order and assuming no premium pay. This study will result in a figure of "adjusted actual cost" for comparison with the foregoing cost estimate, or 1956 U.S. Tax Ct. LEXIS 136">*140 adjusted cost estimate. In the event that the adjusted actual cost overruns the cost estimate (or the adjusted cost estimate), the base fee (or the adjusted base fee) will be reduced by
Among other things the contract also provided as follows:
(a) That adjustment in the cost estimate necessitated by changes in the scope of work was to be determined by negotiation between the petitioner and National;
(b) That payment terms were "cost of materials received, or in transit, and work performed, weekly plus 5% payable net 10 days after receipt of invoice. Balance payable net 30 days after completion";
(c) That a complete release of liens was required to be furnished by petitioner to National before final payment;
(d) That all materials remaining when the work was completed were not to be considered in computing adjusted actual cost to the extent National wished to retain or otherwise dispose of them;
(e) That all records pertaining to cost 1956 U.S. Tax Ct. LEXIS 136">*141 were to be available at all reasonable times to audit verification by National;
(f) That all apparatus was to be tested upon completion of petitioner's work;
26 T.C. 782">*785 (g) That the character of work was subject to the approval of National's experts and was to be checked from day to day as the work proceeded.
The petitioner's initial cost estimate for the work was $ 2,837,210. As a result of increases in the scope of the work which occurred throughout the performance of the contract, this cost estimate was adjusted upward from time to time and reached a final figure of $ 3,806,372.64. These increases in scope resulted partially from so-called field changes which were orders for additional work received at the construction site from representatives of National and partially from drawings submitted by National to petitioner's main office engineering department. The field changes were regularly acknowledged at the construction site by representatives of National as increases in the scope of work and were approved by these representatives as to the amount of labor and materials involved. After the work required by each field change was completed the adjustment in the cost estimate thereby involved 1956 U.S. Tax Ct. LEXIS 136">*142 was computed by petitioner on the basis of the field records. Adjustment in the cost estimate involved by changes made on drawings was also computed by petitioner on the same basis used in arriving at the original cost estimate. There was never any dispute between petitioner and National over changes in scope and, except for one item of less than $ 200, the latter did not question any adjustment in cost estimate made by petitioner as a result of these changes. The adjusted actual cost of petitioner's work was consistently less than the cost estimate of such work.
By the end of 1949 National's purchasing department had given formal approval to net increases in the cost estimate in the amount of $ 582,815.54. Further net increases in cost estimate amounting to $ 230,968.97 had been approved by National's chief electrical engineer, and certain additional field changes involving an increase in cost estimate amounting to at least $ 41,470.81 had been completed and approved by National's representatives at the construction site.
Throughout the progress of its work petitioner kept records of increases and decreases in labor rates and material costs from those in effect on May 1, 1947. The 1956 U.S. Tax Ct. LEXIS 136">*143 labor rates were established from time to time by collective bargaining agreements and National was notified whenever these rates changed. Each supplier of materials was required to notify petitioner what the cost of the material would have been on May 1, 1947, as compared with the actual invoice cost. At approximately monthly intervals petitioner sent to National detailed reports of these increases and decreases (called escalation reports) and auditors of the latter corporation regularly visited petitioner's main office to examine its records as to payroll and materials costs. At no time did National ever find any error or make any complaint in connection with these records.
26 T.C. 782">*786 During the progress of the work petitioner sent three invoices weekly to National, one covering actual costs of materials, another covering actual costs of labor and all other reimbursable costs not otherwise covered, the third relating to petitioner's fee and calling for immediate payment of 5 per cent of the amounts billed on the other two invoices (less premium pay for overtime work) and noting that an additional 2 1/2 per cent of such costs was to be retained by National until 30 days after completion of 1956 U.S. Tax Ct. LEXIS 136">*144 the contract. By the end of 1949 the aggregate amounts relating to petitioner's fee which had been shown on these weekly invoices issued since the commencement of the work were as follows:
| Amount currently payable | $ 158,577.69 |
| Amount retained | 79,288.85 |
| Total fee billed | $ 237,866.54 |
Except for certain questions which were raised by the auditors of National in 1947 shortly after the work was commenced, National never found any error in or made any complaint with respect to any of petitioner's invoices.
The mill for which petitioner's work was to be performed was designed to convert steel ingots into billets. It consisted of a number of connected units, each of which successively performed one of the operations necessary to accomplish this conversion. In order to permit partial utilization of the mill as soon as possible, the several units were completed and placed in operation in the order in which the steel passed through them. The first and largest unit, the blooming mill, was placed in operation in the spring of 1949. By the end of that year substantially all of the major units were in operation and petitioner's work in connection therewith had been completed along with the major part 1956 U.S. Tax Ct. LEXIS 136">*145 of its work on the remaining units. Tests of the work performed by petitioner were made by National as the work progressed and as the various units were placed in operation. Except for minor errors National at no time made any complaint concerning the quality of petitioner's work.
On several occasions C. A. Martin, petitioner's vice president in charge of engineering (hereinafter sometimes referred to as petitioner's chief engineer), analyzed the progress of the work from the standpoint of costs and the profit being realized therefrom. An analysis made by Martin on December 5, 1949, showed that the adjusted cost estimate based on work theretofore ordered by National was $ 3,674,465.32 and that the actual cost of the work already performed, adjusted to reflect May 1, 1947, price levels and to exclude costs attributable to premium paid for overtime work, was $ 2,668,508.86. On the basis of a detailed physical inspection of the state of construction and discussion with his subordinates of the remaining 26 T.C. 782">*787 work to be done, Martin estimated at that time that the work theretofore ordered was 95 per cent completed from the standpoint both of costs and of physical condition and that the remaining 1956 U.S. Tax Ct. LEXIS 136">*146 adjusted actual cost for completing such work was $ 82,812. He accordingly indicated in his analysis that the adjusted cost estimate would exceed the adjusted actual cost by $ 943,144.46 and that as a result petitioner would receive a bonus of $ 235,786.11 in addition to its base fee equal to 7 1/2 per cent of the adjusted cost estimate. Martin discussed his analysis with petitioner's president before the end of 1949 but no adjustment in petitioner's books was made on the basis thereof nor was the analysis brought to the attention either of petitioner's accounting department or the independent firm of certified public accountants who prepared petitioner's audit reports and tax returns and supervised its accounting procedures. Nothing occurred between December 5, 1949, and December 31, 1949, to change Martin's opinion as to the percentage of completion.
In making this analysis Martin did not take into account possible increases in scope of work nor possible liability for errors in performance or unforeseen catastrophes. Petitioner's past experience indicated that the latter possibility was negligible and no such contingent liability did in fact arise. Throughout the course of its 1956 U.S. Tax Ct. LEXIS 136">*147 contract with National petitioner was protected by liability insurance, including insurance for damage to electrical equipment, in an amount in excess of $ 3,700,000.
Around July 18, 1950, at the instigation of National, the contract was terminated. At that time the incomplete items were deleted from the cost estimate and were transferred to and thereafter performed under a new purchase order containing a different fee arrangement and calling for additional work.
On July 20, 1950, after the contract was terminated, petitioner submitted to National a written analysis of the total fee and bonus earned as follows:
| Adjusted estimated cost | $ 3,806,372.64 |
| Adjusted actual cost | 2,770,553.99 |
| Underrun | $ 1,035,818.65 |
| Bonus -- 25% of underrun | $ 258,954.66 |
| Base fee -- 7 1/2% of adjusted estimated cost | |
| Total fee | $ 544,432.61 |
Except for an item relating to surplus materials which was cleared with National's project engineer, petitioner's analysis involved simply an arithmetical computation made in accordance with the contract 26 T.C. 782">*788 and based solely on records theretofore made 1956 U.S. Tax Ct. LEXIS 136">*148 available to and checked by representatives of National during the progress of the work. National did not participate in the analysis and neither before nor after submission thereof did it undertake to make a final audit or otherwise verify the analysis. National formally approved the analysis by Purchase Order Change No. 20 received by petitioner on September 29, 1950. On October 15, 1950, petitioner rendered its final invoice, covering the currently billed fee, the retained fee, and the bonus due. The invoice was thereafter paid in January 1951. No formal acceptance of petitioner's work was ever given by National or required by the contract.
During the calendar years 1947, 1948, and 1949 petitioner accrued on its books as income from fees under the National contract only the amounts shown as being currently payable on the weekly invoices with respect to fee rendered to National during these years. Such amounts aggregated $ 158,577.69. The balance of the fees billed during these years, aggregating $ 79,288.85, was carried on the petitioner's books as deferred income and was not included in its income tax returns for these years. In the course of an audit of petitioner's income 1956 U.S. Tax Ct. LEXIS 136">*149 tax return for the year 1949 made prior to September 1951, the examining agent took the position that this $ 79,288.85 should have been included in income for 1949 and a deficiency thereon was paid by petitioner. 1956 U.S. Tax Ct. LEXIS 136">*150 contracts had all been either contracts for a fixed price or contracts providing for reimbursement of cost plus a fee equal to a percentage of cost, the latter often containing a guaranteed maximum price which included the fee. In the case of fixed price contracts it was petitioner's practice to analyze the progress of the work at regular intervals from the standpoint of cost and margin of profit and on the basis of such analysis to bill the customer and accrue as income an amount bearing approximately the same ratio 26 T.C. 782">*789 to the total contract price as the cost of the work up to that time bore to the then estimated total cost. The customers under contracts providing for reimbursement of cost plus a fee equal to a percentage of cost were billed by petitioner at regular intervals in an amount equal to its costs incurred to date of billing plus the percentage. Where this type of contract provided for a guaranteed maximum price which included the fee the same practice was followed until the maximum amount had been billed, without regard to the fact that subsequent costs might reduce petitioner's expected percentage of profit or result in a loss. Many of these contracts also provided for 1956 U.S. Tax Ct. LEXIS 136">*151 retention by the customers of a percentage of the amount billed until the completion of the contract. It was petitioner's practice in such cases to accrue at the time of the billing the full amount billed, including any amount shown on the invoice as being retained by the customer until completion. At no time did petitioner ever employ the completed contract method of accounting.
At the time it secured the contract with National petitioner's chief accountant believed its terms to contain substantial contingencies with respect to the right to and the amount of income which might be received as a result of the performance of the contract. Accordingly she consulted with the independent certified public accountant under retainer to the petitioner. As a result it was decided that the amount of the fee periodically billed which was retained by National (the 2 1/2 per cent portion) was subject to substantial contingencies and that therefore such portion would not be taken into current income but would be carried to a special contingent fee account. This decision was based upon the certified public accountant's opinion as to what good accounting practice required for the particular situation 1956 U.S. Tax Ct. LEXIS 136">*152 to an accrual basis taxpayer.
Thereafter the accounting procedure so established for the National contract was consistently followed throughout the life of the contract. The certified public accountant who originally established this procedure made his usual audit of petitioner's financial position as of the end of 1949 and of its operations during that year. He concluded that the treatment of the $ 79,288.85 of retained fees existing at the year end was proper and in accordance with sound accounting practice. He submitted his certified report to that effect early in 1950.
OPINION.
The deficiencies determined by respondent for the years 1950 and 1951, to the extent disputed, are attributable to the inclusion in petitioner's income for 1950 of the amount of $ 79,288.85, the portion of the fees billed National during the years 1947, 1948, and 1949 and which did not become payable until 1950. The asserted 26 T.C. 782">*790 overpayments for 1950 and 1951 are based on petitioner's claim that an additional part of the base fee as well as part of the bonus payable under the contract with National which it included in its income for 1950 and which is attributable to work completed through December 31, 1949, 1956 U.S. Tax Ct. LEXIS 136">*153 should have been excluded from its 1950 income and included instead in its income for 1949. The issues raised by these claims are essentially questions of accounting, the disposition of which is governed by
Respondent maintains that no part of the compensation earned under the National contract was properly accruable prior to 1950 other than the portion of the fee which was billed as currently payable in each of the 3 preceding years.
By the end of 1949 petitioner had been at work under the contract for approximately 2 1/2 years. Its work was then more than 95 per cent complete from the standpoint both of cost and of physical condition. 26 T.C. 782">*791 Substantially all of the major units in the mill had been completed, tested, and placed in operation and National had made no complaint as to the quality of petitioner's work. All records upon which petitioner's fee was computed had regularly been made available to National and had been checked by its representatives as the work progressed. No dispute of any kind had arisen with respect to these records, at least not since the first few months of the contract. Cf.
In light of these facts we believe that it was evident at the end of 1949, perhaps before, that the only contingencies 1956 U.S. Tax Ct. LEXIS 136">*156 then existing were those incident to the completion of any construction contract such as errors in performance of the work or some catastrophe for which petitioner might be responsible which was not covered by the substantial amount of insurance carried. Indeed, contingencies of this sort were the only ones suggested by respondent's counsel during the course of the hearing and not even these were advanced on brief.
The question of whether an accrual is proper cannot be determined by reference to all of the theoretically possible events which might affect the ultimate receipt of income. This question is a practical one to be decided in light of known facts.
When so considered it is clear that there was no substantial contingency existing as of January 1, 1950, which could have prevented petitioner's ultimate receipt of the $ 79,288.85 invoiced prior to that date and retained by National. It is also clear that at that time petitioner could reasonably anticipate the ultimate receipt of a fee in excess of that amount.
The cases of
Petitioner contends that it is not enough to exclude from its 1950 income only the portions of the fee invoiced prior to January 1, 1950, but that consistent application of its regular accounting method requires that the entire uninvoiced portion of the base fee earned prior to 1950 should also have been excluded from its 1950 income.
The estimated cost of the work completed prior to January 1, 1950, was substantially more than the costs on which the fee invoices were based. This resulted from the fact that the weekly fee invoices were based on the actual 1956 U.S. Tax Ct. LEXIS 136">*159 costs, less premium pay, of the work to the date of invoicing, rather than upon the estimated cost of that work. Petitioner's base fee was 7 1/2 per cent of the latter amount, not actual cost. Therefore, petitioner argues, as the estimated costs were substantially greater than actual costs, less premium pay, a substantial portion of the fee actually earned was never reflected in any weekly fee invoices and was not, but should have been, accrued. Petitioner argues also that the portion of the bonus attributable to work completed prior to 1950 should likewise be excluded from its 1950 income.
Respondent contends that such sums were not accruable prior to the year of completion as they were not fixed in amount or reasonably ascertainable prior to that year. He contends that the possibility that National might increase the scope of work as permitted by the contract created uncertainties as to the amount of the final fee balance and that these uncertainties prevented accrual of any part of the unpaid base fee and bonus prior to 1950. He also emphasizes the fact that the computation of the amount earned by petitioner was to be affected by the amount of materials on hand at the termination 1956 U.S. Tax Ct. LEXIS 136">*160 of the contract. Accordingly respondent attaches no significance to the analysis by petitioner's chief engineer dated December 5, 1949.
It is not necessary that the amount of these items be exactly ascertained in order to accrue them, if a mere calculation or computation based on ascertained factors is all that remains to be done.
Petitioner has, and we believe correctly, computed the portions of the base fee and bonus improperly included in its income for 1950 to be $ 29,423.53 and $ 223,839.69, respectively. Petitioner's computations are set out in the margin. 1956 U.S. Tax Ct. LEXIS 136">*161 testified that nothing occurred between December 5 and December 31, 1949, to change his opinion as to the percentage of completion.
Under the contract the scope of work could be and was substantially increased as the work progressed and it could be reasonably expected at the end of 1949 that there would be some additional increases. Such changes are inevitable 1956 U.S. Tax Ct. LEXIS 136">*162 in any project of this magnitude. The contract did not, however, permit an increase in scope without an appropriate increase in the cost estimate and therefore a corresponding increase in the base fee. Accordingly performance of additional work in 1950 could result in a reduction in the amount of the base fee earned with respect to work completed at the end of 1949 only if the penalty provisions of the contract were to become applicable. By that time, however, it was evident that the possibility of a penalty being incurred was extremely remote. Indeed, it was clear that a substantial bonus had been earned. The estimated cost exceeded the adjusted actual cost by over $ 900,000. Even if there were substantial increases in scope petitioner would have to have incurred adjusted actual costs in performing the remaining work which exceeded the cost estimate for that work by $ 900,000 before any penalty could have 26 T.C. 782">*794 been incurred. We do not think that to be a real possibility as of December 31, 1949, particularly in view of the fact that not only petitioner's work but the entire mill was nearing completion and the adjusted actual cost of all the work under the contract had been consistently 1956 U.S. Tax Ct. LEXIS 136">*163 less than the cost estimate for that work.
Moreover, we do not think adjustment of the final fee for material on hand at the completion of the work would prevent the accrual of this portion of the base fee and bonus prior to January 1, 1950. The contract discloses that materials remaining upon completion of the work to the extent National wished to retain or otherwise dispose of them should not be considered in computing adjusted actual cost. Such adjustment would not therefore enter into the base fee computation, as the base fee was based solely on the estimated cost. Furthermore, that adjustment could only operate in a manner favorable to petitioner, that is, since it could not in anywise cause an increase in adjusted actual cost, it could not cause the imposition of a penalty. It could not, therefore, have any effect upon petitioner's right to receive the full amount of the base fee attributable to work completed prior to January 1, 1950. The only effect this adjustment could have upon the bonus would be to increase the total bonus earned by petitioner by 25 per cent of the adjustment. Accordingly we do not think that the possibility that the total bonus earned by petitioner 1956 U.S. Tax Ct. LEXIS 136">*164 might be increased in the year of completion should prevent the accrual of that portion attributable to work completed prior to January 1, 1950. Nor do we think, as hereinbefore indicated, that the provisions requiring a study of adjusted actual costs and a release of all liens before payment are substantial contingencies preventing accrual of these amounts prior to the year of completion.
Lastly, we find no succor for respondent in the fact that the firm of independent certified public accountants retained by petitioner certified upon audit of petitioner's books as of December 31, 1949, that the treatment given the income derived from the National contract was in accordance with sound accounting practice. A member of that firm testified that if they had known of the chief engineer's analysis they would have immediately taken such analysis into account and accrued as income the items urged here by petitioner.
In making its various contentions petitioner has argued not only that each of the three amounts in controversy should not be included in its income for 1950 but also that such sums should be included in its income for 1949. The taxable year 1949 is not before us and we make 1956 U.S. Tax Ct. LEXIS 136">*165 no determination, even if the record were sufficient to do so, whether these items were accruable in whole or in part in 1949 rather than in a prior year.
1. Shown as $ 285,477.20 on analysis (petitioner's Exhibit 12), but correctly shown on Change Order No. 20 (petitioner's Exhibit 13).↩
1. In his opening statement respondent's counsel stated that petitioner's accountants, having determined that it was to petitioner's benefit that this sum be included in its 1949 income, convinced the examining agent that such inclusion was proper. Respondent, however, did not approve the action of this revenue agent.↩
2.
The net income shall be computed upon the basis of the taxpayer's annual accounting period * * * in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * *↩
3.
(a) General Rule. -- The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under the methods of accounting permitted under
4. Petitioner has abandoned the claim made in its petition that the application of the optional percentage of completion method of accounting permitted by section 29.42-4 of Regulations 111 is determinative of the issue.
5. The analysis by petitioner's chief engineer dated December 5, 1949, disclosed that the estimated adjusted actual cost of the then remaining work was only $ 82,812. Accordingly the adjusted actual cost of such work would have had to exceed well over $ 900,000 (the estimated underrun) before any reduction was possible in the base fee already invoiced.↩
6. A. Uninvoiced portion of base fee:
| A. Uninvoiced portion of base fee: | ||
| Data supplied by Martin's analysis | ||
| Estimated cost of work theretofore ordered to completion | $ 3,674,465.32 | |
| Adjusted actual cost of work to December 5, 1949 | 2,668,508.86 | |
| Estimated total adjusted actual cost to completion | * 2,751,320.86 | |
| * $ 2,668,508.86 plus $ 82,812 (estimated adjusted | ||
| actual cost to completion). | ||
| 2,668,508.86/2,751,320.86 X $ 3,674,465.32 = $ 3,563,867.60 | ||
| estimated cost of work completed at December 5, 1949. | ||
| Fee earned prior to December 5, 1949 | ||
| 7 1/2% of $ 3,563,867.60 | $ 267,250.07 | |
| Less: fee billed to December 31, 1949 | 237,866.54 | |
| Additional base fee earned but not invoiced in 1949 | $ 29,423.53 | |
| B. Bonus: | ||
| $ 3,563,867.60 | ||
| Less | 2,668,508.86 | |
| Underrun as of December 5, 1949 | $ 895,358.74 | |
| Bonus earned on work completed prior to December 5, | ||
| 1949 -- 25% of $ 895,358.74 | 223,839.69 | |
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