A similar contribution-to-capital question presented itself in Union Pacific Railroad Co v United States 208 Ct. Cl. 1, 524 F.2d 1343, 1375-1380 (1975). That case involved, inter alia, “transactions in which the Federal Government paid the plaintiff [railroad] the cost of relocating or protecting such parts of its line as would be flooded or threatened by a rise in water level by reason of a Government dam about to be built,” as well as transactions related to highway construction in which a State or city government, “in the interest of public convenience and safety, * * * paid the cost of railroad highway crossings such as a new grade crossing or the replacement of a viaduct with a highway subway under the railroad's line.”

In Union Pacific Railroad Co. v. United States, 208 Ct. Cl. 1, 16-22, 524 F.2d 1343, 1348-1352 (1975), an accrual basis taxpayer sought to accrue and deduct on its 1942 tax return the payroll taxes which were to be paid in 1943 on 1943 vacation pay. The 1943 vacation pay had been earned and accrued in 1942.

See, e. g., United States v. Consolidated Edison Co., 366 U.S. 380, 385 n. 5, 81 S.Ct. 1326, 1329, 1330, 6 L.Ed.2d 356, 360 (1961); Clevite Corp. v. United States, 386 F.2d 841, 843, 181 Ct.Cl. 652, 658 (1967); Turtle Wax, Inc. v. Commissioner of Internal Revenue, 43 T.C. 460, 466-67 (1965); Denver Rio Grande Western Railroad Co. v. Commissioner of Internal Revenue, 38 T.C. 557, 572 (1962). Most recently, we applied the "all events" test in Union Pacific Railroad Co. v. United States, 208 Ct.Cl. ___, 524 F.2d 1343 (1975). We held that the test applied to determine deductibility of payroll taxes, similar to those in the instant case, which stemmed from accrued vacation pay.

Rul. 75-13, 1975-2 I.R.B. 6, in which respondent states that the issue is ‘whether the taxpayer purchased and held the stock with a predominant business motive as distinguished from a predominant investment motive.’ Despite the recent date of the Agway decision, and its reliance on Dearborn, the point of view there expressed is apparently controverted by another Court of Claims decision released the same day, Union Pacific Railroad Co., Inc. V. United States, 524 F.2d 1343 (Ct.Cl. 1975). In that case, the court held that stock in certain subsidiary railroad corporations did not constitute capital assets in the hands of the parent railroad corporation, because

Springfield's position is that the "grants" constituted contributions to the capital of a corporation under sec. 118, I.R.C., and were, therefore, excludable from gross income and subject to treatment as provided by sec. 362(c), I.R.C. Springfield, of course, has the burden of proof. Union Pacific R.R. v. United States, 524 F.2d 1343, 1382, 208 Ct.Cl. 1, 73 (1975), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 89 (1976). Sec. 118(a) provided, during the taxable years in question:

‘ W. W. Windle Co. v. Commissioner, 65 T.C. 694, 712 (1976), appeal dismissed 550 F.2d 43 (1st Cir. 1977). Compare Dearborn Co. v. United States, 195 Ct. Cl. 219, 444 F.2d 1145 (1971) and Agway, Inc. v. United States, 207 Ct. Cl. 682, 524 F.2d 1194 (1975) with Union Pacific Railroad Co., Inc. v. United States, 208 Ct. Cl. 1, 524 F.2d 1343 (1975). As noted in W. W. Windle Co. v. Commissioner, 65 T.C. 694, 710 (1976), the Court of Claims' decision in Union Pacific Railroad Co., Inc. v. United States, 208 Ct. Cl. 1, 524 F.2d 1343 (1975) may be viewed as casting doubt on the vitality of Dearborn Co. v. United States, 195 Ct. Cl. 219, 444 F.2d 1145 (1971) and Agway, Inc. v. United States, 207 Ct. Cl. 682, 524 F.2d 1194 (1975).

Tenneco was, therefore, required to prove operability. It is axiomatic that a presumption is not evidence and disappears in the face of evidence sufficient to rebut it, Union Pac. RR Co. v. U.S., 524 F.2d 1343 (Ct.Cl. 1975). It is equally clear that a party may not rely on a presumption when evidence from its own case is inconsistent with the facts presumed. Field v. Knowles, 37 Cust. Pat. App. 1121, 183 F.2d 593 (1950); W. L. Prosser, Law of Torts, 4th Ed. § 40 (1971).

The Foundation relies upon a theory of the Court of Claims that in cases in which the government makes a claim for setoff based on the same tax return that the taxpayer bases his suit upon, the government must "`come forward' with sufficient evidence to show that there is a reasonable basis for its claim . . . ." Union Pacific Railroad v. United States, 524 F.2d 1343, 1383 (Ct.Cl. 1975), cert. denied. 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 89 (1976).

The "all-events" test has been applied by various courts since the decision in Anderson was handed down. See United States v. Consolidated Edison Co., 366 U.S. 380, 385, n. 5, 81 S.Ct. 1326, 6 L.Ed.2d 356 (1961); Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270 (1944); Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725 (1934); Union Pacific R.R. Co. v. United States, 524 F.2d 1343, 208 Ct.Cl. 1 (1975), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 89 (1976); Koehring Co. v. United States, 421 F.2d 715, 190 Ct.Cl. 898, 905 (1970); Clevite Corp. v. United States, 386 F.2d 841, 181 Ct.Cl. 652, 658 (1967); Trinity Construction Co. v. United States, 424 F.2d 302 (5 Cir. 1970); Guardian Investment Corp. v. Phinney, 253 F.2d 326 (5 Cir. 1958); Turtle Wax, Inc. v. Commissioner, 43 T.C. 460, 466-67 (1965); and Denver Rio Grande Western Railroad Co. v. Commissioner, 38 T.C. 557, 572 (1962). We held in Sauer v. United States, supra, that plaintiff's claim for accumulated leave did not accrue until his separation from government employment.

The "all events" test has been applied many times by various courts since the decision in Anderson was handed down. See Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725 (1934); Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270 (1944); Trinity Construction Co. v. United States, 424 F.2d 302 (5 Cir. 1970); Guardian Investment Corp. v. Phinney, 253 F.2d 326 (5 Cir. 1958); United States v. Consolidated Edison Co., 366 U.S. 380, 385, n. 5, 81 S.Ct. 1326, 6 L.Ed.2d 356 (1961); Clevite Corp. v. United States, 386 F.2d 841, 843, 181 Ct.Cl. 652, 658 (1967); Denver Rio Grande Western Railroad Co. v. Commissioner, 38 T.C. 557, 572 (1962); Turtle Wax, Inc. v. Commissioner, 43 T.C. 460, 466-67 (1965); Union Pacific R. R. Co. v. United States, 524 F.2d 1343, 208 Ct.Cl. 1 (1975); and Koehring Co. v. United States, 421 F.2d 715, 190 Ct.Cl. 898, 905 (1970). In fact, the test is now included in the Treasury Regulations as follows: