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American Community Builders Inc. v. Commissioner of Internal Revenue


March 22, 1962


Author: Mercer

Before DUFFY and CASTLE, Circuit Judges, and MERCER, District Judge.

MERCER, District Judge.

By its judgment, the tax court determined that there is a deficiency in income tax due from petitioner to the United States in the amount of $173,960.20, for the taxable year 1953 and in the amount of $75,691.22 for the taxable year 1954*fn1 The case is before us upon a petition to review that judgment.

The single legal issue presented by the petition is a question of the construction and application of remedial legislation*fn2 enacted by Congress to cushion the effect upon accrual-basis taxpayers of the decision in Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 463, 79 S. Ct. 1270, 3 L. Ed. 2d 1360. The facts bearing upon that issue are not in conflict. In fact, the issue is a study in simplicity, but concise disposition thereof is made difficult because of its superimposition upon an unwieldy factual background.

During its taxable years, 1953 and 1954, petitioner, an Illinois corporation, was engaged in the business of developing, constructing, renting and selling residential, commercial and industrial real estate*fn3 In the course of its business, petitioner developed a community which is known as Park Forest, Illinois. During the taxable years 1953 and 1954 a number of homes in Park Forest were sold by petitioner to various purchasers upon contracts for warranty deed, each of which provided for installment payment of the purchase price for the respective parcel of land involved, in excess of a down payment received at the time of the transaction. In each of the taxable years in question, petitioner assigned and sold a number of the contracts for warranty deed to lending agencies. The precise arrangement under which those contracts were sold is not material. It is sufficient to relate that a part of the face amount of each was retained by the lending agency as security for the performance of the contract by the purchaser of the land, the lending agency agreeing to release the reserves thereby created to petitioner in installments geared to receipt of specified amounts upon the principal of the several contracts. Amounts so held by the lending agency as security were set up in dealer reserve accounts to the credit of petitioner. As a result of that activity, dealer reserves were accrued to the account of petitioner in the amount of $95,675.00 in fiscal 1953 and in the amount of $385,211.36 in fiscal 1954.

Petitioner employed an accrual accounting method, and reported its income for tax purposes upon an accrual basis. Petitioner omitted the amounts of such dealer reserve accounts from its reports of accrued income contained in its consolidated returns*fn4 for 1953 and 1954, respectively. Ultimately, the Commissioner determined that the amounts held in the reserve accounts to petitioner's credit should have been included in its accrued income for those years. A deficiency assessment, based in part upon that determination, was made. It is from that determination by the Commissioner that the present controversy arises.

A comparison of the summarized facts with the factual background of the decisions reviewed in Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 463, 79 S. Ct. 1270, 3 L. Ed. 2d 1360, reveals no material distinction between this case and the cases there reviewed*fn5 Affirming our decision in Baird v. Commissioner, 7 Cir., 256 F.2d 918*fn6, and reversing decisions of the Courts of Appeals for the Eighth and Ninth Circuits*fn7, the Court there held that amounts withheld by finance companies from the face value of installment paper purchased by them, as security for performance by the obligor on the paper of his contract, which were carried on the books of the finance company as a dealer reserve account, were reportable as income to an accrualbasis taxpayer for the year in which the paper was sold and in which the reserve was set up on the finance company's books. In reaching that decision, the Court held that the taxpayer dealer acquired a fixed right to receive the moneys retained by the finance company as reserves, either in cash payments to be subsequently made or as a credit in satisfaction of contractual obligations of the dealer to the finance company.

Thus, the legal consequences of Hansen were twofold. First, the decision resolved a conflict between decisions of the Courts of Appeals of the several Circuits. Secondly, the decision required dealers in tangible property, who employed an accrual method of accounting, and who, through the sale of negotiable installment paper, acquired dealer reserve accounts, to adopt a method of accounting which included such dealer reserves as income accrued in the year in which the negotiable paper was sold and to report such reserve accounts as accrued income for tax purposes in accordance with that change in their accounting method. Were it not for the intervention of remedial legislation enacted subsequent to that decision, Hansen would control the disposition of this petition.

To alleviate the possibility of harsh consequences upon a substantial number of dealer-taxpayers expected to arise from the involuntary change of accounting method which Hansen required, Congress, on May 13, 1960, enacted the Dealer Reserve Income Adjustment Act of 1960. 74 Stat. 124, 26 U.S.C.A. § 481 note. That statute, inter alia, granted taxpayers affected by the Hansen decision a conditional right to elect "a year of the change" of their accounting method other than the year in which the dealer reserves were actually created.

It is not disputed that petitioner is within the class of persons to whom the Act applies*fn8 The only question is whether, in the light of the following chronology of events, petitioner is entitled to claim the benefits of the Act.

In July of 1958, petitioner was orally informed by a revenue agent in the Office of the District Director at Chicago that petitioner's dealer reserve income for 1953 and 1954 was in issue. Under date of September 17, 1958, the District Director mailed to petitioner a so-called 10-day letter, inviting petitioner to request an informal conference to discuss proposed adjustments, thereon listed, of petitioner's adjusted gross net income as reported in its returns for those years. Among the proposed adjustments thereon listed was the inclusion of the dealer reserve accounts in petitioner's income for each of those years, subject, however, to a net operating loss deduction which was not thereon specified. Thereafter, on October 8, 1959, the Commissioner sent to Petitioner a statutory notice of deficiency, determining deficiencies in income tax of $374,903.24 for fiscal 1953 and of $97,086.71 for fiscal 1954. The assessed deficiencies were in part derived from the Commissioner's inclusion in petitioner's taxable income for the years in question of the amount standing to petitioner's credit in the dealer reserve accounts. The Tax Court petition followed that determination.

The Hansen decision had intervened between the 10-day letter and the statutory notice of deficiency, a fact which becomes material to the issue of this case because Congress chose the date of the Hansen decision, June 22, 1959, as a line of demarcation and a condition affecting the right of a taxpayer to cushion the effect of Hansen by electing his first taxable year after the date of Hansen as the taxable year in which such dealer reserve income would be reported.

Thus, Section 3 of the Act provides:

"(a) General Rule. - If -

"(1) for the year of the change (determined under subsection (b)), the treatment of dealer reserve income by any person to whom this Act applies is changed to a method proper under the accrual method of accounting (whether or not such person initiated the change),

"(2) such person makes an election under this subsection, and

"(3) such person does not make the election provided by section 4(a), then, for purposes of section 481 of the Internal Revenue Code of 1954, the change described in paragraph (1) shall be treated as a change in method of accounting not initiated by the taxpayer.

"(b) Year of Change, etc. - In applying section 481 of the Internal Revenue Code of 1954 for purposes of this section, the "year of the change" in the case of any person is -

"(1) except as provided in paragraph (2), the first taxable year ending after June 22, 1959, or

"(2) the earliest taxable year (whether the Internal Revenue Code of 1954 or the Internal Revenue Code of 1939 applies to such year) for which -

"(A) on or before June 22, 1959 -

"(i) the Secretary of the Treasury or his delegate issued a notice of deficiency, or a written notice of a proposed deficiency, with respect to dealer reserve income, or

"(ii) such person filed with the Secretary or his delegate a claim for refund or credit with respect to dealer reserve income, and

"(B) the assessment of any deficiency, or the refund or credit of any overpayment, whichever is applicable, was not, on June 21, 1959, prevented by the operation of any law or rule of law. For purposes of this section, section 481 of such Code shall be treated as applying to any year of the change to which the Internal Revenue Code of 1939 applies."

Pursuant to the provisions of Section 3, petitioner, on August 30, 1960, filed a notice of election with the District Director electing to have Section 481 of the Internal Revenue Code of 1954 applied to it*fn9 Pursuant to that notice of election, and treating the fiscal year ending on June 30, 1959, as its year of the change, petitioner, on November 22, 1960, filed an amended income tax return for the latter year which took into account the dealer reserve accounts which are in issue in this litigation. That election, and the fact of the filing of the amended return for fiscal 1959, were brought to the attention of the Tax Court by amendment of petitioner's pleading.

With that background, we reach the precise issue which is before us for decision, namely, whether the 10-day letter mailed to petitioner on September 17, 1958, constituted "a written notice of a proposed deficiency, with respect to dealer reserve income" within the meaning of Section 3(b) (2) (A) (i) of the Act. The Commissioner contends that the 10-day letter was a sufficient notice of a proposed deficiency within the meaning of the Act. Petitioner disputes that contention, arguing that no statutory notice of a deficiency or written notice of a proposed deficiency was issued by the Commissioner prior to June 22, 1959. The Tax Court resolved that issue in favor of the Commissioner and entered judgment accordingly.

Analysis of the Tax Court's opinion reveals that its decision can stand only if it be appropriate for a judicial body to amend, by opinion, legislation duly enacted by the Congress.

In its construction of Section 3 of the Act, the Tax Court relied upon and quoted copiously from the legislative history of the Act. Particular emphasis was placed upon language of the Senate Report as follows: "[For the purpose of determining the right of a taxpayer to elect to have Section 481 apply] the notice in writing includes a 15- or 30-day letter issued under established procedure, or other similar written notification of a proposed deficiency."*fn10 It is clear that the Tax Court used the quoted language from the Senate Report as a spring board for interpreting "proposed deficiency" to mean "proposed adjustment" or "notification that an erroneous method of accounting was being used".

Thus the Tax Court said:

"A comparison of the letters with a view to their functional utility in the procedural plan seems to categorize the 10- and 15-day letters as methods of informing the taxpayer of his rights to an informal conference with respect to the adjustments proposed to be made."

Again, after reference to the Senate report, it said:

"* * * We think it is implicit that Congress in referring to 'other similar written notification of a proposed deficiency' after designating the 15- and 30-day letters meant also to encompass a writing issued under an established procedure, which notified the taxpayer of his erroneous treatment of dealer reserve income with corresponding adjustments, which would result in a proposed deficiency in the taxpayer's income tax as reported."

The Tax Court concluded:

"[Persons subject to the Act prior to Hansen, who] had been improperly accounting for dealer reserve income but had not been 'notified in writing' that the method they were employing was incorrect were permitted to utilize as their 'year of the change' 'the first taxable year ending after June 22, 1959' * * *. Conversely, a taxpayer who qualifies under Section 2 of the Act but who was 'notified in writing' of certain adjustments to his income 'attributable to the erroneous treatment of [dealer reserve] income which proposed a deficiency prior to the Supreme Court's decision in Hansen cannot avail himself of 'the first taxable year ending after June 22, 1959' as his 'year of change.' As to this taxpayer the procedural machinery to compel a change in his method of accounting was not initiated as a consequence of the Court's ruling in Hansen, but was already in motion at the time of the Hansen decision as a result of 'an examination of his return by a revenue agent.' * * *

"We are convinced that the 10-day letter issued to petitioner was the type notification envisioned by Congress when referring to 'other similar written notification of a proposed deficiency' in the committee reports. Consistent with our view that Congress was concerned with the notification aspects, the letter informed petitioner that as a result of a 'recent examination of [its] income tax liability' its method of accounting for dealer reserve income was subject to adjustment and specified the amount of adjustments. * *"

Resort by the Tax Court to the legislative history of the Act is plain error. Resort to legislative history has a place in judicial construction of statutes only when resort thereto is necessary to resolve a patent ambiguity in the language of the statute. E. g., Ex parte Collett, 337 U.S. 55, 61, 69 S. Ct. 944, 959, 93 L. Ed. 1207; George Van Camp & Sons Co. v. American Can Company, 278 U.S. 245, 253, 49 S. Ct. 112, 73 L. Ed. 311; Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 89, 56 S. Ct. 70, 80 L. Ed. 62; Mandel Bros. Inc. v. F. T. C., 7 Cir., 254 F.2d 18, 22. As we said in the Mandel case, "when the language used in a statute is clear and unambiguous its legislative history cannot control" interpretation of the statute, because the aid of legislative history is admissible only "'to solve doubt and not to create it.'" Quoting, Railroad Comm. of Wisconsin v. Chicago B. & Q. Co., 257 U.S. 563, 589, 42 S. Ct. 232, 66 L. Ed. 371.

The key word in Section 3 of the Act is "deficiency". The term "deficiency", as applied to internal revenue matters, is an amount of tax due, computed by ascertaining the difference between the amount returned by a taxpayer and the amount of tax which under the Code is due to the government. Thus, the Code has for years fixed the definition of deficiency as the amount by which the tax imposed by the Code, exceeds "the sum shown by the taxpayer upon his return", plus any amounts previously assessed or collected as a deficiency, less the amount of any rebates due to the taxpayer. 26 U.S.C.A. § 6211(a); Denton v. United States, 3 Cir., 235 F.2d 733, 734-735.

The Tax Court accepted the Code definition as the proper definition of the term "deficiency" in Section 3 of the Dealers Reserve Act, but concludes that there was no clearly fixed definition in the terms "proposed deficiency" as used in the same clause of that statute. Even if we ignore the fact, as we may not do, that the word "proposed" must be given its commonly understood meaning in construing the statute, we yet must translate the word "deficiency" when used in context with the word "proposed" as meaning "adjustment" or "error of method" if the decision of the Tax Court is to be sustained. Such a result is untenable in principle.

An analysis of the 10-day letter received by petitioner reveals that that letter may not be treated as a written notice of a proposed deficiency. That letter, the text of which is set forth in full in the margin*fn11, advised the petitioner only that a "recent examination of your income tax liability" had led to a determination that adjustments were necessary in the report of income contained in petitioner's consolidated return for each of the taxable years in issue. Among other things, the letter indicated that a substantial adjustment would be made in the amount of adjusted gross net income, subject to a net operating loss deduction of some amount not shown*fn12 Not only does that letter not notify petitioner that a deficiency in its tax was proposed by the Commissioner, but, also information given in the letter and in proposed adjustments listed thereon was insufficient to enable petitioner to determine whether, in fact, a deficiency would result if such adjustments were made*fn13 Construed most favorable to the Commissioner's position, that letter advised petitioner only that the District Director disagreed with petitioner's method of accounting for dealer reserve income and had determined that certain adjustments were necessary in petitioner's consolidated returns for 1953 and 1954. By no stretch of the imagination can that letter be construed as a written notice of a proposed deficiency within the meaning of the statute, unless the plain language of the statute is to be amended under the guise of judicial construction.

The Tax Court, faced with the clear and unambiguous language of the statute, was not as Mr. Justice Holmes has succinctly remarked, free to inquire "what the legislature meant", but was free only to "ask what the statute means." Holmes, Collected Papers, 207.

The judgment of the Tax Court is reversed.

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