Opinion
Docket No. 20262.
1951-05-29
THE CAPITAL NATIONAL BANK OF SACRAMENTO, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Harrison H. Simpson, Esq., Valentine Brookes, Esq., and G. E. Oefinger, C.P.A., for the petitioner. T. M. Mather, Esq., for the respondent.
1. Petitioner issued time certificates of deposit which were outstanding in 1942 and 1943. Held: The certificates of deposit are not includible in petitioner's borrowed capital for 1942 and 1943. National Bank of Commerce, 16 T.C. 579, followed.
2. Petitioner, a national bank on the charge-off basis as to bad debts in 1930, 1931, and 1932 reduced its accumulated earnings and profits on the recommendation of the national bank examiner by $50,000 in both 1930 and 1931 because of the partial worthlessness of Reclamation District bonds by setting up a reserve for depreciation in value. It did not make a charge-off of the partial worthlessness on its books which was necessary before it could take a deduction for the amounts under section 23(j) of the Revenue Act of 1928. In 1932 the basis of the bonds was reduced by $100,000. Held: Petitioner may restore to its accumulated earnings and profits in order to compute its equity invested capital a proportionate part of the $100,000 reduction which it had improperly made in its accumulated earnings and profits. Held, further: Petitioner may restore to the basis of those bonds sold in 1942 a proportionate part of the improper reduction in their basis in order to compute the gain or the loss from their sale. Harrison H. Simpson, Esq., Valentine Brookes, Esq., and G. E. Oefinger, C.P.A., for the petitioner. T. M. Mather, Esq., for the respondent.
Respondent determined deficiencies in petitioner's excess profits tax for the year 1942 and 1943 of $92,176.50 and $31,126.75, respectively. Petitioner claims an overpayment for the se years in the respective amounts of $77,895.06 and $125,728.85.
The issues presented are (1) whether certificates of deposit issued by petitioner are properly includible in its borrowed capital within the meaning of section 719(a)(1) of the Internal Revenue Code; (2) whether, in computing its equity invested capital, petitioner may restore to its accumulated earnings and profits that part of a $100,000 valuation reserve which it set up on its books in 1930 and 1931 because of the partial worthlessness of Reclamation District No. 2047 bonds, which is proportionate to the bonds still owned; and (3) the determination of the adjusted basis of certain of the bonds for the purpose of computing the gain or the loss from their sale in 1942.
Other adjustments made by respondent are not contested by petitioner.
Petitioner filed its returns with the collector for the first district of California.
FINDINGS OF FACT.
The facts which have been stipulated are so found.
Petitioner is a corporation organized under the laws of the United States with its principal office in Sacramento, California. At all times material hereto, petitioner was a national bank, a member of the Federal Reserve system, a member of the Federal Deposit Insurance Corporation, and designated by the Secretary of the Treasury as a depositary of Government funds.
Issue 1. In its regular course of business, petitioner issued certificates of deposit
to private persons. The average daily balances of the certificates of deposit which were outstanding in 1942 and 1943 were $1,407,645.59 and $1,192,119.75, respectively. The terms of the certificates varied from four months to one year, and the interest rate varied from one-half per cent a year to two per cent.
The form of the certificates of deposit is as follows:
Petitioner also issued certificates of deposit to the California State Treasurer and to the treasurers of Sacramento, Colusa, and Butte counties during 1942 and 1943. The average daily balance of such certificates outstanding in both 1942 and 1943 was $952,681.
The California State Treasurer made deposits under an ‘Agreement for Inactive Deposit‘ entered into in 1937. The agreement provided that the deposits should be evidenced by certificates of deposit which were to be negotiable after their maturity date, which was not to exceed one year after issue. Petitioner was required to deposit with the Treasurer as security, bonds or state warrants which had a value that was 10 per cent greater than the amount of the deposits.
Deposits were made by county treasurers under written agreements for inactive deposits of funds which permitted withdrawal on 30 days' notice and provided that interest be paid quarterly and that the agreement terminate after one year. Petitioner agreed to pledge as security United States bonds or treasury notes or bonds of the State of California or of a political subdivision of the state which had a value 10 per cent greater than the amounts of the deposits. As evidence of the deposits, petitioner issued certificates of deposit which were negotiable when due.
During 1942 and 1943, petitioner accepted commercial (checking) and savings accounts. No interest was paid on the former type of account, and the interest rates in effect on savings accounts varied from 1 1/2 per cent to 2 per cent. Although petitioner reserved the right to require notice of withdrawal of savings accounts, it has never exercised this right.
Petitioner was not required to redeem certificates of deposit before maturity. It did redeem them in an emergency. During the period 1940 to 1944, inclusive, petitioner redeemed four certificates prior to maturity. A certificate issued to the State Insurance Commissioner for a term of 1 year was redeemed on December 17, 1941, two months after issuance, to permit investment of the amount, $11,500, in defense bonds. Three certificates issued to J. D. Greene in the amount of $50,000 each and for terms of 6 months were redeemed on January 11, 1944, within 2 months of issuance, at the request of Greene who desired to make a payment on farm property. No interest was paid on the certificates redeemed prior to maturity.
Issues 2 and 3. During the years 1930, 1931, and 1932 petitioner was on the charge-off basis of accounting for bad debts, under which it took deductions for bad debt losses at the time their worthlessness became known and the debts were charged off on its books.
On or before May 11, 1928, petitioner purchases bonds of Reclamation District bonds) which had a par value of $464,000 for $437,795. Petitioner established a separate account on its books for the bonds. Subsequent sales reduced the balance in the account to $351,280 by 1930. The carrying rate of the bonds was 94.33 per cent of their par value at this time.
In 1930 bank examiners from the office of the Comptroller of the Currency determined that bonds and securities owned by petitioner were overvalued on its books by $173,726.78 due primarily to a $215,120 overvaluation of the Reclamation District bonds. The chief examiner's report stated that:
A net depreciation of $173,726.78 estimated a loss at this examination. The management has set up a reserve of $25,000.00 against this item, and on December 31, 1930, will increase this reserve account $25,000.00, making a total of $50,000.00. Notwithstanding this, non-conforming irrigation and reclamation district #2047 bonds indicate a total depreciation of $215,120.00. The bonds of reclamation district #2047 have depreciated heavily over the last examination, and previous examinations have shown a tendency to lower level depreciation, which at this time stands at 49 bid and 53 ask. These quotation have been checked at reliable bond houses. The market for the sale of these bonds is stagnant, evidencing their nonmarketability, resulting in their nonconformity. * * *
At the last examination the net depreciation of all bonds was $127,181.00, and your examiner then requested the following:
- - - ‘that the above estimated loss be charged off the books at the end of the current period at the rate of 25%, and that a reserve for bond depreciation be set up on the books for the balance.‘
In view of the further heavy depreciation resulting since the last report, your examiner suggests that the procedure in charging off 25% of the estimated depreciation existing at this examination be done, and that a reserve be set up on the books for the balance, as contemplated. No charge off has as yet been made as previously suggested.
On December 29, 1930, the Comptroller of the Currency informed petitioner:
The report of examination of your bank completed November 28 by National Bank Examiner Leo Shapirer has been received and shows a net depreciation in your bond holdings of $173,726.78. This is a much heavier depreciation than was shown by the previous report of last May and exists chiefly in Reclamation District bonds #2047, which are carried at $351,820 and for which there is apparently no market. In view of these facts you should, as recommended by the examiner, charge off at least 25 per cent of the net depreciation at this time, in addition to increasing your present reserve for depreciation in the sum of $25,000 on December 31, 1930, as contemplated. Thereafter, you should semi-annually provide for at least one-fourth of the remaining depreciation by charging off or crediting your reserve with that amount until the entire depreciation has been taken care of.
On June 30, 1930, petitioner set up a valuation reserve out of its accumulated earnings and profits by charging its undivided profits account and crediting an account designated as ‘Reserve for Bond Depreciation‘ for $25,000. In accordance with the recommendation of the Comptroller of the Currency, the valuation reserve was increased to $50,000 on December 31, 1930, by charging an additional $25,000 to the undivided profits account. However, actual charge-off of part of the depreciation in value was not made during 1930. Petitioner's income tax return for 1930 listed under ‘Other deductions‘ $50,000, which was described as ‘Reserve for Depreciation Loss on Bonds Per Order Chief Bank Examiner.‘ The return showed a net loss of $44,435.46.
On June 30, 1931, the valuation reserve was increased to $100,000 by charging an additional $50,000 to the undivided profits account. Actual charge-off of part of the depreciation in value was not made during 1931. Petitioner deducted $50,000 in its income tax return for 1931 for the addition to the valuation reserve. The return showed a net loss of $172,079.71.
Investigation of petitioner's income tax return for 1930 was made by respondent with particular reference to the loss claimed because of the shrinkage in value of the Reclamation District bonds. All the material facts were made available to the revenue agent who made the investigation. Petitioner made no false or erroneous misrepresentations either on its returns for 1930 and 1931 or to the revenue agent in respect to the deductions which it took in 1930 and 1931 for the decline in value of the bonds. As a result of his investigation, the revenue agent recommended that the deduction be allowed in the 1930 return, and no further action was taken by respondent.
On December 10, 1932, petitioner reduced the basis of the bonds on its books by $100,000 by debiting the valuation reserve, which had been previously set up out of the undivided profits account, for $100,000 and crediting the bond account for that amount, thus reducing the basis of the bonds on its books to $251,820.
In later years, petitioner made charge-offs because of the ascertainment of partial worthlessness of the bonds by charging the undivided profits account and crediting the bond account as follows:
+------------------+ ¦Year ¦Amount ¦ +------+-----------¦ ¦1934 ¦$55,000.00 ¦ +------+-----------¦ ¦1938 ¦20,070.60 ¦ +------+-----------¦ ¦1939 ¦18,050.00 ¦ +------------------+
Deductions for the above amounts were taken by petitioner on its tax returns for the years in wich the charge-offs were made.
In its excess profits tax returns for the years 1942 and 1943, petitioner included the bonds which it still owned in its equity invested capital at a figure which did not take into account the charge-off which had been made in 1932. Respondent determined that the adjusted basis of the bonds must reflect the 1932 reduction in their basis and give the following explanation of his determination:
Due consideration has been given to your protest executed December 11, 1945, in which you seek the restoration to the residual basic cost of R.D. No. 2047 bonds, sums claimed as partial bad debt deductions of $50,000.00 in each of the returns for 1930 and 1931, a total of $100,000.00, which aggregate sum was written out of the bond investment account in 1932. The alleged purpose of restoration of the sum of $100,000.00 is to augment equity invested capital per books at beginning of years 1942 and 1943, in the respective amounts of $75,723.93 and $58,653.75. It is held that the sums of &,000.00 claimed as partial bad debts on No. 2047 bonds in each of the years 1930 and 1931 and written out of the bond investment account in 1932, conforms with the accepted requirements under the Revenue Act of 1928, thereby justifying no restoration to the basic book cost of the sum of $100,000.00 previously written off and, accordingly, the alleged resulting increase in equity invested capital at the beginning of years 1942 and 1943, in the respective amounts of $75,723.93 and $58.653.75, are denied.
During the year 1942 petitioner sold $70,287.24 par value of the bonds for $31,649.26. Petitioner claimed a loss of $13,705.80, contending that the adjusted basis of the bonds was $45,355.06. Respondent computed the adjusted basis to be $28,284.88 and determined that a gain of $3,364.38 had resulted, of which $2,411.73 was not subject to tax.
OPINION.
HARRON, Judge:
Issue 1. The first issue is whether certificates of deposit which were issued by petitioner and outstanding in 1942 and 1943 are properly includible in its borrowed capital under section 719(a)(1) of the Internal Revenue Code.
SEC. 719. BORROWED INVESTED CAPITAL.(a) BORROWED CAPITAL.— The borrowed capital for any day of any taxable year shall be determined as of the beginning of such day and shall be the sum of the following:(1) The amount of the outstanding indebtedness (not including interest) of the taxpayer which is evidenced by a bond, note, bill of exchange, debenture, certificate of indebtedness, mortgage, or deed of trust, * * *
Petitioner relies upon the decision of the Court in Ames Trust & Savings Bank, 12 T.C. 770, in support of its contention that the certificates of deposit are includible in its borrowed capital. Since the submission of petitioner's argument on brief, however, the Court of Appeals for the Eighth Circuit has reversed the Ames case and decided that a time certificate of deposit is not a ‘certificate of indebtedness‘ which is includible in the borrowed capital of a bank under section 719(a)(1). Commissioner v. Ames Trust & Savings Bank, 185 F.2d 47 (1950). The Court of Appeals approved that part of Regulations 112, section 35.719-1, which is relied on by respondent,
and held that it was applicable to time deposits as well as to demand deposits. The Court of Appeals held that certificates of deposit are not includible in borrowed capital and said that:
Regs. 112, sec. 35.719-1.The term ‘certificate of indebtedness‘ includes only instruments having the general character of investment securities issued by a corporation as distinguishable from instruments evidencing debts arising in ordinary transactions between individuals. Borrowed capital does not include indebtedness incurred by a bank arising out of the receipt of a deposit and evidenced, for example, by a certificate of deposit, a passbook, a cashier's check, or a certified check.
Historically and recognizedly, bank deposits have never been regarded as representing ‘borrowed capital,‘ within the commercial connotation of that term. As the Iowa Supreme Court said in Elliott v. Capital City State Bank, 128 Ia. 275, 276, 103 N.W. 777, 778, the term ‘deposit‘ always has had a meaning of its own, ‘peculiar to the banking business, and one that courts should recognize and deal with according to commercial usage and understanding. ‘ And such a transaction is without any of the characteristics of money borrowing. Certainly there is no intent on the part of an ordinary depositor to make a general loan to the bank. Nor is a bank permitted to deal with deposits as general loans, for the law, through legislative or administrative regulation, imposes limitations upon the manner and extent of the use of such funds, different from those on capital investment or borrowings. * * *
The decision of the Court of Appeals was expressly followed by us in National Bank of Commerce, 16 T.C. 769, in which we reviewed the question and held that certificates of deposit issued by a bank to its depositors are not includible in its borrowed capital under section 719(a)(1). Cf. S. Rept. No. 2679, to accompany the Excess Profits Tax Act of 1950, 81st Cong., 2d Sess., p. 10 (1950, in which borrowed capital was defined to exclude the indebtedness of a bank to its depositors. There is nothing in the evidence in this proceeding which requires a contrary result. The question is controlled by National Bank of Commerce and Commissioner v. Ames Trust & Savings Bank, supra.
Petitioner argues that the certificates of deposit which it issued to the state and county treasurers present a stronger case for inclusion as borrowed capital under section 719(a)(1) than do the certificates issued to private depositors because, under the laws of California,
petitioner was required to pledge security for the deposits by the state and county treasurers which were evidenced by the certificates. We are unable to find any merit in this argument.
Deering, General Laws of California (1937 Supp.), Act 2834, secs. 1, 4; Act 2834(a), secs. 1, 4.
Both classes of certificates of deposit were issued in the identical form. The fact that petitioner-bank was required to pledge security for the deposits made by the state and county treasurers does not change their nature as deposits and make them borrowed capital under section 719(a)(1). This requirement merely establishes some preference in favor of the deposits of the state and county treasurers. The rationale of Commissioner v. Ames Trust & Savings Bank, supra, is no less applicable to the certificates of deposit issued to the state and county treasurers than it is to those issued to private depositors. In fact, under state law, a deposit made by the state or county treasurers is deemed to have been made in the state or county treasury,
and the issuance of the certificates is required as evidence of the deposit.
Ibid.
Id., Act 1834, sec. 9; Act 1834(a), sec. 9. These sections also provide that the state or county treasurers may withdraw the funds deposited by check or order.
It is held that the certificates of deposit issued by petitioner to private depositors and the certificates of deposit which is issued to the state and county treasurers do not constitute borrowed capital under section 719(a)(1). Respondent's determination on this issue is sustained.
Issue 2. In 1930 and 1931, pursuant to the recommendation of the Comptroller of the Currency, petitioner set up out of its accumulated earnings and profits a valuation reserve of $100,000 primarily because of the partial worthlessness of Reclamation District bonds which it owned. The question under this issue is whether in computing its equity invested capital for 1942 and 1943, petitioner may increase its accumulated earnings and profits by that part of the $100,000 which is proportionate to the bonds still owned. Petitioner bases its position that it may increase its accumulated earnings and profits on the contention that there must be an actual charge-off before a partial bad debt loss can be allowed under the charge-off method and that it never made such a charge-off during 1930 and 1931, the years in which it took loss deductions of $50,000 each on its income tax returns because of the partial worthlessness of the bonds. Petitioner argues that the subsequent reduction in the carrying value of the bonds in 1932 has no effect on the propriety of the reduction in 1930 and 1931 of its accumulated earnings and profits by the segregation of part of its undivided profits in a valuation reserve.
The first question that must be decided under this issue is whether, assuming that petitioner is correct and a mistake of law was made whereby petitioner erroneously took partial bad debt deductions in 1930 and 1931, it is nevertheless estopped in this proceeding from assuming a position contrary to the position which it maintained in its returns for 1930 and 1931. It is undisputed that petitioner took as deductions in its returns for each of the years 1930 and 1931 $50,000 which it claimed under ‘Other deductions‘ as a ‘Reserve for Depreciation Loss on Bonds Per Order Chief Bank Examiner ‘ (although the only tax benefit which it received from the deductions was as an offset to its net income of $5,564.54 computed without benefit of the deduction for 1930). However, petitioner did not make a false, or even an erroneous, misrepresentation of material fact to respondent in 1930 or 1931. Respondent was not ignorant of the truth, nor did he detrimentally change his position in reliance on any representation by petitioner. All the facts upon which the petitioner based the deductions on its returns were disclosed by petitioner, and its return for 1930 was investigated by a revenue agent with specific reference to the deduction taken because of the depreciation in value of the bonds, and the taking of the deduction was approved. The only mistake made was as to the law.
An analogous situation arose in Commissioner v. Mellon (C.A. 3,1950), 184 F.2d 157, affirming 12 T.C. 90. In that case, the taxpayer exchanged stock of one corporation for that of another corporation as part of a transaction which did not constitute a tax-free reorganization within the meaning of section 112(i)(1)(A) of the Revenue Act of 1928. However, the Commissioner, upon being asked for a ruling on the tax effects of the transaction, erroneously ruled that a tax-free reorganization had occurred and that the gain resulting from the exchange of the stock was not to be recognized at that time. The taxpayer, therefore, reported no gain in his return for the year of exchange. In later years the taxpayer sold the stock which he had acquired, and the question arose as to whether or not the taxpayer was estopped from assuming an inconsistent position and claiming that the adjusted basis of the stock was its fair market value at the time of receipt because the exchange was not part of a tax-free reorganization. In holding that the doctrine of estoppel could not be applied against the taxpayer, the court said:
The Commissioner's first point bears the earmarks of the defense of estoppel. Nevertheless, the record here leaves nothing to support it, for the Commissioner was acquainted with all the facts at the appropriate time; there was no misrepresentation, no misstatement, nor any failure to report. The long and short of it is that the Commissioner made an error of law in determining the taxpayers' (and trusts') income tax liability for 1930, which is now walled up by the statute of limitations. What the Commissioner urges, however, is a duty of consistency upon the part of the taxpayers in their dealings with him which requires that the earlier treatment be continued even though the taxpayers acted in good faith and the technical elements of estoppel may be absent. We think the weight of authority is against Commissioner on the facts of the cases here in controversy. * * *
See, also, American Light & Traction Co., 42 B.T.A. 1121, affd. (C.A. 7, 1942), 125 F.2d 365, 366; Pancoast Hotel Co., 2 T.C. 362. Similarly, in this proceeding, the petitioner is not estopped from assuming a position inconsistent with the position which it took in its returns for 1930 and 1931, and it is entitled to establish the true nature of the alleged losses in 1930 and 1931.
Petitioner's contention under this issue, therefore, must be considered on its merits.
Under section 734(b), adjustments for the inconsistent position can be made relating to the years 1930 and 1931. Kawneer Co., 13 T.C. 336.
The concept of ‘earnings and profits‘ for the purpose of computing equity invested capital under section 718(a)(4) is the same as the concept of ‘earnings and profits‘ under section 115(1) for the purpose of identifying the source of taxable corporate dividends. Bangor & Aroostook Railroad Co., 16 T.C. 578; Taylor-Wharton Iron & Steel Co., 5 T.C. 768, 780-783; Regulations 112, section 33.718-2; H. Rept. No. 3002, 76th Cong., 3d Sess., pg. 60 (1940). Under sections 115 and 718(a)(4), earnings and profits can only be increased by gains or decreased by losses which are recognized under the law applicable to the year in which the gain or loss is claimed. Commissioner v. South Texas Lumber Co., 333 U.S. 496; Bangor & Aroostook Railroad Co., supra; see section 115(1). It is necessary, therefore, to examine the law applicable to the years 1930 and 1931 in order to decide whether petitioner sustained losses from partial bad debts which could be deducted in those years.
The law which governs the years 1930 and 1931 is the Revenue Act of 1928. Under section 23(j) of that statute, a bad debt deduction could be taken only for ‘debts ascertained to be worthless and charged off within the taxable year * * * ; and when satisfied that a debt is recoverable only in part, the Commissioner may allow such debt to be charged off in part.‘ A taxpayer who ascertained that he had suffered a partial bad debt loss might elect either to take an immediate deduction for the partial worthlessness, or, if he desired, wait until the debt was totally worthless or until its ultimate disposition to take a deduction. Moock Electric Supply Co., 41 B.T.A. 1209; Blair v. Commissioner, (C.A. 2, 1937), 91 F.2d 992; E. Richard Meinig Co., 9 T.C. 976. Although there has been a conflict in the decisions, the preferable view and the one followed in the more recent cases is that a charge-off is a necessary condition precedent to the allowance of a partial bad debt deduction under the 1928 Act and the comparable provisions of the Revenue Acts of 1921, 1924, and 1926. Santa Monica Mountain Park Co. v. United States (C.A. 9, 1938), 99 F.2d 450; United States v. Beckman (C.A. 3, 1939), 104 F.2d 260; Bender v. Heiner (W.D. Pa. 1939), 27 F.Supp. 531; see, also, Regulations 74, article 191; Mertens, Law of Federal Income Taxation, vol. 5, section 30.26. Therefore, unless petitioner made a charge-off in those years of the amounts which it claimed as deductions because of the partial worthlessness of bonds in its 1930 and 1931 returns, the deductions were improper and petitioner's accumulated earnings and profits were erroneously reduced by the amount taken as a loss.
The evidence is clear that petitioner did not make any charge-off on its books of the partial worthlessness of the Reclamation District bonds in 1930 or 1931, during which years petitioner was on the specific charge-off method of accounting for bad debts. All that was done by petitioner in 1930 and 1931 was to set up a valuation reserve for depreciation of the bonds which it owned on the recommendation of the bank examiner. The amount at which the Reclamation District bonds were carried was not affected by the setting up of the reserve, which did not eliminate the partial worthlessness from petitioner's book assets. The reserve set up was a general reserve because of the finding of the bank examiner that there had been a substantial depreciation in the value of the bonds carried in petitioner's general bond account. No specific charge-off of any part of the Reclamation District bonds was made in 1930 or 1931.
In Commercial Bank of Dawson, 46 B.T.A. 526, the taxpayer-bank, which used the specific charge-off method in dealing with bad debts, created a reserve in the approximate amount of a write-down of bonds that it owned which had been proposed by a bank examiner. The bonds, themselves, were not written down in the years in question. In holding that the partial worthlessness of the bonds had not been charged off by the bank, and, therefore, that the bank was not entitled to a partial bad debt deduction, the Court said:
* * * (The procedure followed) not only fails to demonstrate a charge-off of these items, but in fact indicates the contrary. It did not ‘effectually eliminate the amount of the bad debt from the book assets of the taxpayer.‘ Ed C. Lasater, 1 B.T.A. 956. There is no authorization for a taxpayer to use at the same time a charge-off and a reserve method for the deduction of bad debts. Arthur J. Marks, 9 B.T.A. 1047; Rogers Peet Co., 21 B.T.A. 577; Manistique Lumber & Supply Co., 29 B.T.A. 26. A taxpayer on the charge-off system can only comply with the statute by specific charge-off; and a reserve cannot exist in such a system as an over-all general treatment disregarding specific items, even if properly created in the first instance. Rossin & Sons, Inc. v. Commissioner (C.C.A., 2d Cir.), 113 Fed(2d) 652. These rules apply as much to banks as to any other taxpayer. Atlantic Bank & Trust Co. v. Commissioner (C.C.A., 4th Cir.), 59 Fed(2d) 363. It follows that petitioner did not charge off these items, as it was required to do, and the deduction must be disallowed.
In this proceeding as well, petitioner, having failed to meet the requirements of the statute, was not entitled to a partial bad debt deduction in 1930 or 1931. Petitioner's accumulated earnings and profits, therefore, were incorrectly reduced by the amounts taken as losses in those years.
The fact that petitioner was not entitled to take a deduction for a partial bad debt loss in either 1930 or 1931, however, does not mean that it was not entitled to take the loss at some future date. ‘Partial worthlessness, as distinguished from total uncollectibility is a ground which may be pursued or relinquished by a taxpayer entirely at his option,‘ Moock Electric Supply Co., supra, and if it is not pursued, the taxpayer may wait until the ultimate disposition of the debt to take a deduction. In this respect, this proceeding differs from Seiberling Rubber Co., 8 T.C. 467, affd, in part (C.A. 6, 1948), 169 F.2d 595. In the Seiberling case, the taxpayer did not have an option to take a partial bad debt deduction or not, as it desired, because a settlement agreement between the parties had provided that the taxpayer would not claim as a deduction in any other year that part of a claimed partial bad debt deduction which was disallowed in 1939. Since the loss had actually been suffered in years prior to 1939 and was properly recognizable in those years, the reduction which the taxpayer had made in its accumulated earnings and profits in the prior years was proper. However, in Taylor-Wharton Iron & Steel Co., supra, at 786-7, it was recognized that the failure to take proper advantage of a partial bad debt loss, where the right to take a deduction upon the ultimate disposition of the debt was retained, would not reduce accumulated earnings and profits under section 718(a)(4).
It is held that petitioner, in the computation of its equity invested capital, may increase its accumulated earnings and profits for the years 1942 and 1943 by that part of the $100,000 improperly charged against its accumulated earnings and profits in 1930 and 1931 which is proportionate to the Reclamation District bonds which it owned in 1942 and 1943.
Issue 3. Petitioner sold some of the bonds in 1942 for $31,649.26. Petitioner claims that it suffered a loss of $13,705.80 from the sale, and that since it is a bank, it comes within the provisions of section 117(i),
under which any net loss which it may have suffered from the sale or exchange of bonds, debentures, notes, or certificates, or other evidences of indebtedness during 1942 will be treated as an ordinary loss,
SEC. 117. (i) BOND, ETC., LOSSES OF BANKS.— For the purposes of this chapter, in the case of a bank, as defined in section 104, if the losses of the taxable year from sales or exchanges of bonds, debentures, notes, or certificates, or other evidence of indebtedness issued by any corporation (including one issued by a government or political subdivision thereof) with interest coupons or in registered form, exceed the gains of the taxable year from such sales or exchanges, no such sale or exchange shall be considered a sale or exchange of a capital asset.
and will not be subject to the exclusion from adjusted income of capital losses which is contained in section 711(a)(2)(D). Respondent, however, contends that petitioner had a gain rather than a loss on the sale of bonds.
Examination of the deficiency notice discloses that if petitioner did, in fact, suffer a loss upon the sale of the bonds, it had a net loss from security sales within the meaning of section 117(i) during 1942. The exact amount of any such loss will have to be computed as part of a Rule 50 recomputation if petitioner did, in fact, suffer a deductible loss on the sale of the bonds.
The difference between the parties arises from the fact that respondent has determined that the adjusted basis of the bonds, as shown by petitioner's books, was $28,284.88, while petitioner has restored to the adjusted basis of the bonds that part of the $100,000 reduction in their basis which is proportionate to the bonds sold. The question under this issue is the proper basis of the bonds under section 113(b)(1)(A) for purposes of gain or loss from their sale, and depends on whether petitioner improperly reduced the basis of the bonds in 1932. Whether petitioner improperly reduced the basis of the bonds in 1932, in turn, depends on whether or not it was entitled to a partial bad debt deduction because of the partial worthlessness of the bonds in 1930, 1931, or 1932.
Any gain on the sale of the bonds would be a capital gain and would be excluded from the petitioner's excess profits net income under section 711(a)(2)(D).
Under section 113(b)(1)(A), the adjusted basis of property for determining the gain or loss from its sale is the cost of the property, properly adjusted for ‘expenditures, receipts, losses, or other items, properly chargeable to capital account.‘ We have already decided under the second issue that petitioner was not entitled to a partial bad debt deduction because of the partial worthlessness of the bonds, and that the deduction improperly taken was not ‘properly chargeable to capital account‘ as a reduction of accumulated earnings and profits. It follows that that part of the $100,000 reduction in the basis of the bonds which is proportionate to the bonds sold in 1942 may be restored to their basis in order to determine the gain or loss upon their sale. The respondent's determination on this issue is reversed.
Decision will be entered under Rule 50.
+-----------------------------------------------------------------------------+ ¦(Centered and vertical along left edge of document) Term Certificate of ¦ ¦Deposit ¦ +-----------------------------------------------------------------------------¦ ¦(Centered and vertical along left edge of document) Not subject to check ¦ +-----------------------------------------------------------------------------+
THE CAPITAL NATIONAL BANK of Sacramento
Sacramento, California---------------------- 19---- ----------------------------------------------ha---- Deposited in this bank --------------------------------------------------DOLLARS $ Payable-------------------------------19----after--------------------notice upon surrender of this certificate properly endorsed, with interest from date hereof to maturity at the rate of----per cent per annum. Teller Vice President Cashier This certificate will not bear interest after maturity.