Opinion
No. 42518.
November 14, 1938.
Claude E. Koss, of New York City (H. Stanley Hinrichs and Oscar P. Mast, both of Washington, D.C., on the brief), for plaintiff.
George H. Foster, of Washington, D.C., and James W. Morris, Asst. Atty. Gen. (Robert N. Anderson, Fred K. Dyar, and G.W. Billings, all of Washington, D.C., on the brief), for defendant.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
Suit by the Winchester Manufacturing Company against the United States to recover a portion of income and profits taxes paid for the year 1918.
Judgment for the plaintiff.
This case having been heard by the Court of Claims, the court, upon the evidence adduced, makes the following special findings of fact:
1. Plaintiff is a Connecticut corporation which was organized July 7, 1865, under the name of Winchester Repeating Arms Co. Its name was changed February 21, 1929, to the Winchester Manufacturing Co. During 1918 plaintiff was engaged in the manufacture of arms, ammunition, and related articles and had contracts with the Government and other parties for the production of these articles. It kept its books and rendered its returns on the accrual basis and used inventories as a factor in determining net income.
2. Plaintiff duly filed its income and profits tax return for the calendar year 1918 and paid the tax shown due. In that return plaintiff computed the value of such inventories on the basis of "cost or market, whichever is lower." On that basis plaintiff showed an inventory at December 31, 1918, of $12,165,555.87, whereas the book value (cost) of that inventory as of that date was $13,355,728.71. The difference represented a reduction by plaintiff from cost to market and resulted in a decrease of taxable income for 1918 in the amount of the difference, that is, $1,190,172.84.
3. While plaintiff's return for 1918 was being audited by the Commissioner of Internal Revenue and when the statute of limitations was about to run on any overpayments that might be determined for that year, plaintiff on March 15, 1924, filed a claim for refund of $500,000 for 1918 and assigned the following basis therefor:
"The company's tax situation is under consideration at Washington and from evidence which is being submitted by the company in connection with certain proposed additional taxes, it appears that the company will be entitled to a refund and in order to absolutely protect its rights and interests under the statute of limitations, this refund claim is hereby filed."
4. After an audit of plaintiff's return for 1918 the Commissioner on July 14, 1926, advised plaintiff of his determination of a deficiency for 1918 of $870,399.45. In arriving at that deficiency the Commissioner made various adjustments to income and invested capital, including an adjustment on account of the pricing of its inventories at cost or market, whichever was lower. As heretofore shown in finding 2, plaintiff had claimed in its original return that its inventory at December 31, 1918, and likewise its income for the calendar year 1918, should be reduced in the amount of $1,190,172.84 in order to reflect a reduction from cost to market in its closing inventory for 1918. Upon his consideration of the inventory item the Commissioner determined that the amount of the reduction should be $494,992.22 instead of $1,190,172.84 as used by plaintiff. The amount thus allowed was based upon a redetermination by the Commissioner of the market value at December 31, 1918, of materials included in that inventory.
5. During February 1927, the Commissioner assessed the deficiency of $870,399.45 referred to in finding 4, with interest of $32,896.32, a total of $903,295.77. That assessment was abated to the extent of $4,769.97 on April 12, 1927, and a part of the remainder, $126,773.62, was satisfied on March 12, 1927, by the application of an overpayment of income and profits taxes for 1919, and the balance, $771,752.18, was paid April 30, 1927.
In connection with the determination and assessment of that deficiency the Commissioner on March 7, 1927, rejected the claim for refund referred to in finding 3, for the reason that the audit of the return had disclosed a tax liability in excess of the amount assessed.
6. May 9, 1930, plaintiff filed a second claim for refund for 1918 in the amount of $500,000 on the following ground:
"The Company claims that in computing the inventory of December 31, 1918, at market effect should be given to a reduction in wages which took place shortly prior to December 31, 1918. The details are set forth in the attached papers. A hearing is requested in case adverse action is considered on this claim."
The claim was executed April 22, 1930. The papers attached, to which reference was made, set out certain orders which were issued effecting a reduction of labor rates at or about the termination of the war and included a schedule showing a claimed reduction in inventory on account of the labor content of manufactured inventories, of $471,026.17. No reference was made in that claim to any reduction in inventories other than on account of a decrease which resulted from the labor which entered into the manufactured inventories.
7. After consideration of the claim of May 9, 1930, the Commissioner on October 5, 1931, issued a certificate of overassessment in which the claim was allowed in the amount of $199,698.53 plus interest theretofore assessed of $6,438.63 and interest from date of payment to October 10, 1931, of $53,951.43. The amount so determined was duly refunded to plaintiff or satisfied and is not involved in this controversy.
In determining the amount of that overpayment based on the claim for refund, the Commissioner allowed a "reduction of inventory based on reduction in labor" of $240,352.27 and made no change in the reduction of the inventory based on price reductions in material theretofore allowed by him. The labor reduction allowed applied to commercial contracts and did not include materials acquired for the production of war supplies under Government contracts, for the reason that the Commissioner had taken the position that such supplies on hand at the end of 1918 were not subject to adjustment to market since a settlement was effected in a later year on account of such war contracts which was intended to compensate plaintiff for any decline in the market price of such material. However, on February 15, 1932, the Supreme Court held in United States Cartridge Co. v. United States, 284 U.S. 511, 52 S.Ct. 243, 76 L.Ed. 431, that such war materials could be inventoried in the same manner as other materials on hand at December 31, 1918. After that decision had been rendered, plaintiff on March 10, 1932, requested the Commissioner to extend his adjustments to include Government contracts, such request reading as follows:
"Just at the close of 1931 in association with Mr. Claude E. Koss, of #11 Broadway, New York City, we secured a refund for the Winchester Manufacturing Company (formerly Winchester Repeating Arms Company) based upon a reduction of the inventory at the end of 1918 due to taking the labor cost at market instead of at cost as originally determined by the Commissioner in arriving at the tax for the year 1918.
"In the determination of this refund the amount really due us was reduced by the disallowance of any reduction to market of the labor due to the fact that no allowance was made for reduction of labor value on certain Government contracts.
"An identical situation arose in the case of the United States Cartridge Company, Petitioner, v. United States, in which the Supreme Court of the United States on February 15th handed down its decision which I am enclosing to you under cover herewith.
"You will note that the Supreme Court of the United States holds that the Commissioner and the Court of Claims were in error in not for 1918 allowing petitioner to take materials on hand for Government contracts at market value rather than at the amounts subsequently realized in settlements with the contractor by the United States.
"If this decision of the Supreme Court is to be followed, then, of course, the Winchester Manufacturing Company is entitled to the additional refund.
"I have to ask that our claim may be reopened and the case sent to the Unit for the computation of the correct tax due following the ruling of the Supreme Court of the United States sent you herewith."
Shortly thereafter plaintiff filed an affidavit, with schedules attached, in support of its request of March 10, 1932, and those schedules set out in detail revaluations of both material and labor at December 31, 1918.
8. March 30, 1933, plaintiff filed a document entitled "Amended Claim for Refund," in which it asked for the refund of $500,000 for 1918 and sought to have the claim filed May 9, 1930, extended in so far as it related to a revaluation of its inventory as at December 31, 1918, to include a revaluation of all elements entering into the inventory, including labor, material, and supplies. The specific grounds of the so-called amended claim were as follows:
"The Company claims that in computing its inventory at December 31st, 1918, the Bureau of Internal Revenue should, under the tax law, value all of the elements entering into the inventory, including labor, material, and supplies at cost or market, whichever was lower, and that it should give effect to the reduced market values existing for each item at December 31st, 1918. The labor, material, and supplies in the Government contracts in the inventories should also be adjusted at December 31st, 1918, to the basis of cost or market, whichever is lower. The Company filed a claim dated April 22d 1930, several parts of which are still under consideration by the Bureau of Internal Revenue, and the claimant contends that such claim fully covers the matters which are now set forth in this claim. In order that there be no doubt about the matter, and for the purpose of fully protecting the interests of the taxpayer, this amended claim is now filed under the decision of the Supreme Court of March 15, 1933, in Bemis Bro. Bag Co. v. U.S., 288 U.S. 594, 53 S.Ct. 318, 77 L.Ed. 972, U.S. v. Factors Finance Co., 288 U.S. 89, 53 S.Ct. 287, 77 L.Ed. 633, and U.S. v. Memphis Cotton Oil Co., 288 U.S. 62, 53 S.Ct. 278, 77 L. Ed. 619."
9. On or about September 26, 1933, the Commissioner issued a certificate of overassessment for $8,849.28, and on or about November 10, 1933, that amount was refunded to plaintiff, together with interest in the amount of $3,441.88. In determining the overassessment referred to above, the only change made by the Commissioner in plaintiff's net income was a reduction in net income of $10,403.25 on account of labor involved in government contracts, which was explained as follows:
"In accordance with the decision of the U.S. Supreme Court in the case of the U.S. Cartridge Company v. U.S., a reduction to market value of inventories in fixed price government contracts is allowable. An adjustment has therefore been made for labor in such contracts included in your inventory, which labor was excluded in the computation of the overassessment previously scheduled."
10. This suit was filed on September 29, 1933, and was based on the second claim for refund filed May 9, 1930, seeking a reduction from "cost" to "cost or market, whichever is lower" of the labor content in the inventory on hand for commercial contracts, and the so-called amended claim filed March 30, 1933, seeking a reduction from "cost" to "cost or market, whichever is lower" of all the elements entering into the inventory for commercial and government contracts, including labor, material and supplies. The claim for reduction from "cost" to "cost or market, whichever is lower" of the labor content in inventories on hand for government contracts has been satisfied by the refund made in the certificate of overassessment in the amount of $8,849.28 (see finding 9), and further claim therefor is now waived by the plaintiff and this item of the suit abandoned.
There is nothing in the evidence to show that when the Commissioner was considering the claim for refund of May 9, 1930, he was apprised that any claim for revaluation of material as distinguished from the labor content of material was made until the amendment of March 30, 1933, was filed. Nor is there any evidence to show that the Commissioner did in fact under the claim of May 9, 1930, make any audit beyond that which was necessary to determine the labor content in certain portions of the material contained in the inventory. The evidence as a whole shows that no consideration was given by the Commissioner to the claim of March 30, 1933, and that the application for reopening plaintiff's case under this amendment was denied.
11. The parties agree that the present suit is based on the following claims:
(a) That in computing the December 31, 1918, inventory all of the following items carried in the inventory should be priced on the "cost or market, whichever is lower" basis. These items are:
MATERIALS
Manufactured Parts and Supplies: Finished gun tools and cartridge tools ................... $ 18,263.82 Miscellaneous tools, cast iron parts, machine parts, machines and parts ....................... 11,239.17 Wood boxes, paper boxes, and labels for cartridges and wood cases and gun packing cases and stationery ............................ 988.07 Tool steel blanks and tools in process ........... 12,719.84 Miscellaneous Stores: Salvage stores .................................. 17,400.21 Balbach smelting stores ......................... 2,799.44 Stores in transit ............................... 54,350.67 Uninspected stores .............................. 82,478.19 Indirect Material: Fuel, except coal ............................... 1,563.62 Oils and liquids ................................ 5,752.22 Builders' hardware .............................. 4,016.15 Direct Material: Pipe supplies, electrical supplies, miscellaneous brass, bronze, and copper, and miscellaneous cartridge stores ................. 18,512.32 __________ Total ..................................... 230,083.72 Material in Government contracts ................. 93,765.19 __________ Total of specific reductions of materials claimed .................................. $323,848.91
(b) That the labor content in all the inventory items acquired for other than Government contracts should be adjusted from "cost" to "cost or market, whichever is lower," by applying the same average percentage as was applied by the Commissioner in his allowance for labor reduction on certain of the items permitted to remain in the inventory and with respect to which the original claim was allowed in part. The items for labor claimed are as follows:
Labor in stationery, cartridge labels, packing cases, paper boxes, gun packing cases, and other wooden cases ............... $ 94,383.84 Labor in tool steel blanks and tools in process ................. 336,840.09 Labor in finished miscellaneous tools, cast iron parts, machine and machine parts ................ 277,638.42 ___________ Total of labor items in Inventory $708,862.35 Reduction claimed (8.53% of above) ............. $ 60,465.96 ___________ Grand total of specific reductions to be covered in suit ............................... $384,314.87
(c) In addition, plaintiff claims adjustment from "cost" to "cost or market, whichever is lower" on certain miscellaneous items which were eliminated from the inventory by the Commissioner on the ground that they were unaccounted for, or, being accounted for, on the ground that there was no evidence as to the market value thereof.
12. By eliminating the materials allocated to contracts completed after December 31, 1918, the amount involved in the claim for adjustment in the material items allocated to Government contracts is now reduced from $93,765.19 to $66,798.67. Of this amount, $7,712.71 represents adjustment claimed on materials allocated to cost plus contracts. All of the material upon which this claim is based, except as to a few minor items, is such that it may reasonably be presumed that it would become a physical part of the product hereinafter referred to as Class 1 items.
13. In the amount sued for, claimed on materials allocated to commercial contracts totaling $230,083.72 (finding 11(a), there are included classified items totaling $54,542.89, upon which adjustments from cost to market were disallowed by the Commissioner in his final determination on the deductions taken on the return, on the ground they were supply items not subject to the "cost or market, whichever is lower" basis, and items totaling $175,540.83, on the ground that an arbitrary percentage basis was used in reducing the book cost to "cost or market, whichever is lower."
14. All of the items appearing in the inventory upon which adjustment to "cost" or "cost or market, whichever is lower" is claimed may be classified as follows:
Class 1. Items of material which become a physical part of the manufactured product.
Class 2. Items in the nature of consumable supplies which are used in productive processes and indirectly become a part of the manufactured product.
Class 3. Finished production tools and tools in process, including materials for making same, the life of which is indeterminable.
Class 4. Miscellaneous small production tools and materials used for making the same, the life of which may reasonably be presumed to be less than one year.
Class 5. Capital asset items, replacement and maintenance parts therefor, and materials for making same.
Class 6. Supply and other miscellaneous items not allocable to any of the foregoing classifications.
Class 7. Salvage items of direct materials, such as copper, brass, etc.
Class 8. Unidentified items impossible of practical classification.
15. Included in the items totaling $54,542.89, referred to in finding 13, are items of the following classifications:
Class 1 .................... $ 668.59 " 2 .................... 7,315.84 " 4 .................... 36,042.53 " 5 .................... 10,196.45 " 6 .................... 319.48 __________ Total ................ $54,542.89
16. Included in the items totaling $175,540.83 (finding 13) are items of the following classifications:
Class 1 .................... $ 4,355.70 " 5 .................... 14,156.62 " 7 .................... 20,199.65 " 8 .................... 54,350.67 Uninspected stores ......... 82,478.19 ___________ Total ................ $175,540.83
The breakdown of "Uninspected Stores" has been reduced by a reclassification by plaintiff to $79,694.44 and the total of these items to $172,757.08.
17. Included in the item "Uninspected Stores" are materials which, according to the nomenclature of the several entries, fall into classes 1, 2, 3, 4, 5, 6, and 8 (finding 14), in the following amounts, respectively:
Class 1 ................... $49,625.87 " 2 ................... 920.49 " 3 ................... 1,497.45 " 4 ................... 556.80 " 5 ................... 1,337.09 " 6 ................... 115.62 " 8 ................... 25,641.12 __________ Total ............... $79,694.44
18. The claim for labor adjustments relates to items in the inventory falling in classes 1, 3, 4, 5, and 6. Items falling in classes 3, 4, and 5 represent items disallowed on the ground the cost of items produced could not be segregated from cost of items purchased. Items falling in classes 1 and 6 represent items eliminated from the inventory on the ground they were not such as under the law and regulations could be priced at "cost or market, whichever is lower." The total reductions originally claimed in the petition were $60,465.96, but have been reduced to $37,224.33. Segregated as to classes after adjustment for non-bonus periods, the items are as follows:
Class 1 ................... $ 4,086.68 " 3 ................... 21,218.12 " 4 ................... 3,820.59 " 5 ................... 6,755.56 " 6 ................... 1,343.38 __________ Total ............... $37,224.33
19. In addition to the claims based on classified material and labor items, a blanket claim is made for adjustment from cost to market of unaccounted-for inventory amounting to $47,724.80, and certain other items upon which no reduction was allowed by the Commissioner of Internal Revenue because of lack of evidence as to the market value. The unaccounted-for inventory claim represents the difference between the cost ledger total for the several items and the total for which substantiating vouchers are available. This claim was disallowed by the Commissioner on the ground that no substantiating vouchers were available in 1925 when the revenue auditor examined the books. The difference between the cost ledger total in the several accounts and the total of substantiating vouchers available may be classified as follows:
Class 1 .................... $ 6,248.03 " 2 .................... 1,388.93 " 3 .................... 5,544.35 " 4 .................... 28,979.07 " 5 .................... 5,564.42 __________ Total ................ $47,724.80
This is a suit to recover a portion of income and profits taxes paid for the year 1918. Several refunds have been made and so far as the refund involved in this case is concerned, it is based on the ground that the Commissioner of Internal Revenue placed a wrong value upon certain items of plaintiff's closing inventory for that year. The principal defense set up by defendant raises the issue that no claim for the refund now sought to be recovered was filed in time to permit the plaintiff to avail itself of the inventory adjustment which it now seeks to have made.
It appears that in filing its return for 1918 plaintiff, in making its inventory, followed the rule of "cost or market, whichever is lower" and, since market was lower than cost, at least for many items in its inventory, claimed a decrease in taxable income for 1918 of $1,190,172.84 on the ground that the market value of its inventory at December 31, 1918, was that much less than cost. On an audit of this return, the Commissioner reduced the inventory reduction claimed of $1,190,172.84 to $494,992.22, such inventory allowance being based upon a revaluation of materials entering into plaintiff's inventory. After making this reduction in the allowance claimed, together with other adjustments not here material, the Commissioner assessed a deficiency of $870,399.45 with interest, in February 1927. A portion of that deficiency was satisfied by abatement and credit, and the balance, $771,752.18, was paid by plaintiff April 30, 1927. In order to protect itself against the statute of limitations on any overpayment that might be determined, the plaintiff filed a claim for refund on March 15, 1924. A deficiency instead of an overpayment having been found by the Commissioner, this claim was rejected and is not material in this proceeding.
About three years later, on May 9, 1930, plaintiff filed a second claim for refund for 1918 on the ground that "in computing the inventory of December 31, 1918, at market, effect should be given to a reduction in wages which took place shortly prior to December 31, 1918." That claim set out in great detail the situation with reference to labor and wages existing at December 31, 1918, and the manner in which the general reduction in labor costs would affect the closing inventory for 1918. It was based solely on the costs of labor and made no reference whatever to any further adjustment desired on account of the material content of the inventory.
The Commissioner considered this claim and on October 5, 1931, issued a certificate of overassessment for $199,698.53. The allowance of this overassessment was made by reason of the decrease in the closing inventory for 1918 of $240,352.27 and the decrease was based on a reduction in the value of the labor content of the inventory. There was no reduction made at this time on account of revaluation of material, nor did the labor reduction include a revaluation of the inventory on hand in connection with Government contracts, the Commissioner having taken the position that any loss on account of a decline in value of such material had been adjusted subsequent to 1918 through settlements on Government contracts. However, the Supreme Court on February 15, 1932, held in United States Cartridge Co. v. United States, 284 U.S. 511, 52 S.Ct. 243, 76 L.Ed. 431, that these war materials could be inventoried in the same manner as other materials on hand at December 31, 1918. Accordingly, on March 10, 1932, plaintiff requested reconsideration of the action taken on the claim of May 9, 1930. This reconsideration was granted and the Commissioner made a further reduction in plaintiff's inventory as of date December 31, 1918, of $10,403.25 on account of labor involved in Government contracts, and on September 26, 1933, issued a certificate of overassessment for $8,849.28 by reason of this reduction. In the meantime and before the Commissioner had taken the action just referred to, plaintiff, on March 30, 1933, filed a document designated "Amended Claim for Refund" in which it requested in effect that the Commissioner extend his consideration under the claim for refund of May 9, 1930, so as to include not only labor but certain items of material entering into the inventory of December 31, 1918, and make an adjustment therefor. The Commissioner refused to recognize the document filed March 30, 1933, as an appropriate amendment to the claim of May 9, 1930, and accordingly made no adjustment or reduction in the assessment under that claim other than on account of the ground stated in the original claim, namely, a decrease in the inventory due to a reduction in the cost of labor. The claim of May 9, 1930, and the amendment thereto filed March 30, 1933, are now the only claims in controversy between the parties and form the basis of plaintiff's action.
It has already been shown that the claim filed May 9, 1930, was confined to the labor content of inventory items. The plaintiff, however, contends that the Commissioner was fully apprised by other documents that it was intended to apply to the value of materials included in the inventory generally and that the valuation of the materials was reconsidered by an audit made on this claim. But, as before stated, the adjustment was asked wholly on account of a change in labor costs and the five supporting documents and schedules dealt with the same subject with particularity without any suggestion that a revaluation of the material element was desired. The basis of the amendment to the claim filed March 30, 1933, was that the Commissioner improperly valued certain items in its closing inventory for 1918 and the plaintiff contends that the claim last filed, when considered in connection with the claim of May 9, 1930, other requests filed, and certain acts of the parties, is sufficient to permit the revaluation of both material and labor elements properly entering into a valuation of such items, notwithstanding the fact that the last claim for refund had been filed after the expiration of the statute of limitations [ 40 Stat. 1085, § 252].
In the case of Curran Printing Co. v. United States, 15 F. Supp. 153, 83 Ct.Cl. 431, certiorari denied, 301 U.S. 686, 57 S. Ct. 789, 81 L.Ed. 1343, it appeared that an audit made by the Commissioner pursuant to a claim filed in time disclosed facts sustaining the right of the plaintiff to recover and this court held that the plaintiff, before a ruling was made thereon, might file an amendment to the refund claim setting up the matters disclosed by the Commissioner's audit although the last claim was not filed until after the expiration of the statute of limitations. In the case of Mabel S. Andrews, Exec., v. United States, 17 F. Supp. 980, 84 Ct.Cl. 460, relying upon the cases of Youngstown Sheet Tube Co. v. United States, 7 F. Supp. 290, 79 Ct.Cl. 683, and Curran Printing Co. v. U.S., supra, upon somewhat similar facts, a similar ruling was made. The Andrews Case, however, was reversed by the Supreme Court ( 302 U.S. 517, 58 S.Ct. 315, 82 L.Ed. 398) and while the closing paragraph of the court's opinion thereon still leaves open a question as to circumstances under which an amendment might be made after the running of the statute if the Commissioner was fully apprised of the items of deduction ultimately claimed in the amendment by his audit, the decision is explicit in holding that a claim limited to a specific item can not "be amended out of time to seek a refund on account of other and unrelated items." [page 320.]
It is contended on behalf of plaintiff that the Commissioner was fully apprised of a claim for refund on account of overvaluation of material before the last claim for refund was filed. Plaintiff's counsel support this contention by reference to a claims card bearing date 4/3/33, but this card merely shows that a request for reopening the claim had been denied; moreover the date on the card was after the expiration of the statute of limitations. We find nothing in the evidence to show that material, as distinguished from the labor content in material, was considered by the Commissioner in the audit of the claim of May 9, 1930, or that the Commissioner had considered such material under this claim at the time when the amendment to the claim was filed on March 30, 1933. On all of the evidence it is apparent that the attention of the Commissioner was not called to this matter until after the statute of limitations had run. Moreover, there is no evidence whatever that the Commissioner did in fact make any audit beyond that which was necessary to find the labor content in certain portions of the material contained in the inventory, and that the application for reopening was denied. The records of the Commissioner's office show plaintiff's case was not reopened under the amendment of March 30, 1933, and the evidence as a whole shows that no consideration whatever was given by the Commissioner to that document.
As already stated, the claim for refund filed May 9, 1930, was as specific as it was possible to make it in confining its application to the labor content of certain materials included in the inventory. There was nothing in it which would call the attention of the court to a claim for a revaluation of materials in the inventory generally. Under the circumstances, we are constrained to apply the rule laid down in the Andrews Case and hold that the plaintiff was not entitled to have considered an amendment filed after the period of limitations seeking a refund on account of other and unrelated items.
What is said above disposes of the main branch of the case but there are other contentions made on behalf of the plaintiff. The special findings show the various items contended for by plaintiff, as set forth in a stipulation of the parties, together with the correct amount pertaining to each item and the classification of the items in eight different classes. These classes are set out in Finding 14, and Finding 18 shows that in only five of the eight classes is labor involved; namely, classes 1, 3, 4, 5, and 6. Consequently classes 2, 7, and 8 are eliminated from further consideration. In addition to these classes it is conceded on behalf of the plaintiff that it must fail for lack of proof with respect to classes 3 and 5. On the other hand, defendant concedes that to the extent the court finds the claim sufficient to cover the items included in class 1, plaintiff is entitled to recover. The revaluation sought in that class includes not only labor but also material. Nothing can be allowed on the part of the claim for material but the parties have agreed that under this item a labor reduction should be made in the sum of $4,086.68.
There remain for consideration only the items which are covered by classes 4 and 6. Here a new question arises; namely, whether the items included in those two classes are properly to be considered inventory items which are subject to be valued under the statute and regulations at "cost or market, whichever is lower." Class 4 is described as "Miscellaneous small production tools and materials used for making the same, the life of which may reasonably be presumed to be less than one year"; and class 6 refers to "Supply and other miscellaneous items not allocable to any of the foregoing classifications." The small tools included in class 4 which had a life of less than one year, as well as the material on hand for their production, and the supply and other miscellaneous items of class 6 which the record shows consisted largely of factory stationery, did not belong in the inventory. None of these items were articles on hand for sale; neither did they become part of the finished products which plaintiff was manufacturing for sale. The cost of these articles we think was an item of expense for which allowance may be made but not as a part of the inventory. The omission of any allowance on account of the labor element in these items was not an error.
Under the rules we have laid down above, recovery can be had only on account of the reduction in net income brought about by the revaluation of the labor element in class 1, the amount of which is agreed to be $4,086.68. This reduction being allowed, we find there was an overpayment of $3,476.24 (including interest collected in connection with the deficiency) for which judgment will be entered with interest as provided by law. It is so ordered.