John P. Carroll, Jr., Esq., for the petitioner.
Dean P. Kimball, Esq., for the respondent.
TIETJENS
OPINION.
On August 27, 1962, petitioner filed a motion for "Determination of Issues Under Section 534, Internal Revenue Code of 1954." The gist of the motion is a request that the Court determine whether the statement of the grounds on which petitioner relies to establish that none of its earnings and profits were permitted to accumulate beyond the reasonable needs of its business (including the reasonably anticipated needs) is sufficient within the meaning of the pertinent sections of the Code to place upon respondent the burden of proving whether all or any part of petitioner's earnings and profits were so permitted to accumulate. Respondent resists petitioner's request. Oral arguments have been heard and briefs have been filed to which due consideration has been given.
In other cases where similar motions have been filed the Court has consistently refused to rule on this question prior to trial and the motions have been denied. The cases cited by petitioner such as R. Gsell & Co. v. Commissioner, 294 F. 2d 321, reversing 34 T.C. 41">34 T.C. 41, and Young Motor Company v. Commissioner, 281 F.2d 488">281 F. 2d 488, reversing 32 T.C. 1336">32 T.C. 1336, do not appear to require any change in the Court's practice in this respect. It may be that a ruling on the burden-of-proof question as a preliminary matter would in some instances serve the convenience of the petitioner, but we think that the interests of both parties as well as that of the Court will best be served by allowing this question to be disposed of at or after trial.
Accordingly, the petitioner's motion has been denied.