OPINION.
MtodoCK, Judge:
The Commissioner has held that the accounting method used by the petitioner prior to and during the taxable years is an accrual method but the petitioner failed to adhere to that method in that it did not accrue several items which the Commissioner has adjusted to an accrual method in determining the deficiency. The petitioner, to support its contention that it has never used an accrual method, should show that its method is not an accrual method, or, at least, that in the majority of the most substantial items of income and deductions it is not an accrual method. Hygienic Products Co., 37 B. T. A. 202, affd. 111 F. 2d 330, certiorari denied 311 U. S. 665; Estate of Julius I. Byrne, 16 T. C. 1234, 1246; Schuman Carriage Co., Ltd., 43 B. T. A. 880; Aluminum Castings Co. v. Boutzahn, 282 U. S. 92. This is not a case in which the Commissioner has attempted to change a long established and consistently used method of accounting on the ground that it does not clearly reflect income or on any other ground. Instead he has merely insisted, as the law and regulations require, that the petitioner consistently follow the method of its choice, i. e., an accrual method, with respect to several substantial items which would have to be accrued under any proper accrual method. See cases cited above.
The evidence not only fails to show that the petitioner regularly used some acceptable method other than an accrual method but affirmatively supports the determination of the Commissioner that an accrual method was used. The unit-livestock-price method of inventorying animals had long been used by the petitioner and is generally, and now by the Commissioner, recognized as a proper inventory method. It is a part of an accrual method of accounting. The raising and selling of livestock was the business and almost the sole source of the income of the petitioner. The petitioner inventoried its livestock at all times prior to and during the taxable years and, in so accounting, accrued and reported large amounts of income not received, representing to some extent the increase and growth of the animals in its herds prior to sale of those particular animals. In other words, it has used an accrual method of accounting for its chief activity. Cf. Herberger v. Commissioner, 195 F. 2d 293, certiorari denied 344 U. S. 820; A. & A. Tool & Supply Co. v. Commissioner, 182 F. 2d 300; Stern Brothers & Co., 16 T. C. 295, 322; Wm. Fleischaker, et al., 7 B. T. A. 389; Kabatzinck v. Eaton, 45 F. 2d 244. It has also accrued and reported other income and deductions prior to receipt or payment of cash and did so during the taxable years. It accrued profits on sales made on credit. Its books show accruals of interest carried into income, yet it failed to accrue when due the interest which the Commissioner has held nondeductible in the taxable years. It also had on its books accounts receivable and accounts payable which may not have affected income. The accounting for some cash transactions is much the same regardless of whether the taxpayers use an accrual or a cash method of accounting. These can include payroll, cash sales and purchases, and perhaps some other items. The petitioner had a number of such items on its books. However, it has not shown that any substantial recurring items were recorded on its books in a manner inconsistent with an accrual method of accounting. It has not shown that it did not accrue some taxes. Testimony of officers and stockholders that an accrual method was not used is unavailing where, as here, other better evidence contradicts their statements of general conclusions. In short, the petitioner has not sustained the burden imposed upon it of showing that the Commissioner erred in disallowing deductions for interest which accrued in years prior to the years of payment, in holding that Federal taxes accrued in the tax year and were not deductible in the next year when paid, Lewyt Corporation, 18 T. C. 1245, contra Olympic Radio & Television, Inc. v. United States, 108 F. Supp. 109, sustained on rehearing 110 F. Supp. 600, and in holding that the profit from a sale of sheep was income of the year in which the sale was made rather than of a later year. Also it has failed to show that the profit from the sale of cattle accrued in 1943.
The Commissioner now concedes that capital gains resulted from sales of cattle and sheep belonging to the breeding herds but still insists that unbred heifers and ewe lambs were not a part of those breeding herds. The petitioner thus has the burden of proving that the unbred heifers and ewe lambs were a part of the breeding herds and the profit from sales of those animals were long-term capital gains. There is almost no evidence in regard to the ewe lambs and the record does not justify a finding that they were a part of any breeding herd of sheep maintained by the petitioner or that they were held for more than 6 months prior to the sale in question. The petitioner had a dual ■purpose in holding unbred heifers after inventoring them as yearlings at the end of each year. One purpose was to sell as many of them, beginning with the poorer ones, as might seem desirable in the following year in the light of the then existing conditions such as the quantity of grass available, financial needs of the petitioner, market conditions, the extent to which the breeding herd had been reduced by losses, and other conditions. The other purpose was that some of the better animals would be available as replacements in the breeding herd, when they became 2-year-olds, to the extent that that would seem desirable in the light of some or all of the same conditions that have been mentioned. Cf. Walter S. Fox, 16 T. C. 854, affd. 198 F. 2d 719. The unbred heifers were kept separate from the breeding herd. Actually a large percentage of the unbred heifers on hand during each of the taxable years was sold and a fair inference is that a great many were held primarily for sale to customers in the ordinary course of the taxpayer’s business. Thus, it cannot be found as to any particular animal that it was being held up to the time of its sale for breeding purposes. The petitioner has failed to show by a fair preponderance of the evidence that the unbred heifers sold were capital assets. The petitioner, relying upon exhibits which it placed in evidence, argues, and in effect concedes, that its gains from the sales of yearling heifers for 1942 and 1943 were somewhat greater than the amounts claimed by the Commissioner. That point, like some others, may be adjusted in the computation under Eule 50.
The petitioner claims the right under sections 23 (s) and 122 to carry back to 1943 an alleged net operating loss of 1945 and under section 710 (c) (3) to carry back to 1943 an unused excess profits credit for 1945. The decision of these questions does not require consideration of the differences between the parties relating to accounting and tax reporting methods permissible to the petitioner for 1945. The petitioner transferred its assets as a liquidating distribution to its sole stockholder on August 15, 1945. Consequently, its sales of livestock for 1945 amounted to only $878.50, which was not unusual since sales were normally made after August of each year. Its total reported income for 1945 was only $7,245.53.
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OPINION.
MtodoCK, Judge:
The Commissioner has held that the accounting method used by the petitioner prior to and during the taxable years is an accrual method but the petitioner failed to adhere to that method in that it did not accrue several items which the Commissioner has adjusted to an accrual method in determining the deficiency. The petitioner, to support its contention that it has never used an accrual method, should show that its method is not an accrual method, or, at least, that in the majority of the most substantial items of income and deductions it is not an accrual method. Hygienic Products Co., 37 B. T. A. 202, affd. 111 F. 2d 330, certiorari denied 311 U. S. 665; Estate of Julius I. Byrne, 16 T. C. 1234, 1246; Schuman Carriage Co., Ltd., 43 B. T. A. 880; Aluminum Castings Co. v. Boutzahn, 282 U. S. 92. This is not a case in which the Commissioner has attempted to change a long established and consistently used method of accounting on the ground that it does not clearly reflect income or on any other ground. Instead he has merely insisted, as the law and regulations require, that the petitioner consistently follow the method of its choice, i. e., an accrual method, with respect to several substantial items which would have to be accrued under any proper accrual method. See cases cited above.
The evidence not only fails to show that the petitioner regularly used some acceptable method other than an accrual method but affirmatively supports the determination of the Commissioner that an accrual method was used. The unit-livestock-price method of inventorying animals had long been used by the petitioner and is generally, and now by the Commissioner, recognized as a proper inventory method. It is a part of an accrual method of accounting. The raising and selling of livestock was the business and almost the sole source of the income of the petitioner. The petitioner inventoried its livestock at all times prior to and during the taxable years and, in so accounting, accrued and reported large amounts of income not received, representing to some extent the increase and growth of the animals in its herds prior to sale of those particular animals. In other words, it has used an accrual method of accounting for its chief activity. Cf. Herberger v. Commissioner, 195 F. 2d 293, certiorari denied 344 U. S. 820; A. & A. Tool & Supply Co. v. Commissioner, 182 F. 2d 300; Stern Brothers & Co., 16 T. C. 295, 322; Wm. Fleischaker, et al., 7 B. T. A. 389; Kabatzinck v. Eaton, 45 F. 2d 244. It has also accrued and reported other income and deductions prior to receipt or payment of cash and did so during the taxable years. It accrued profits on sales made on credit. Its books show accruals of interest carried into income, yet it failed to accrue when due the interest which the Commissioner has held nondeductible in the taxable years. It also had on its books accounts receivable and accounts payable which may not have affected income. The accounting for some cash transactions is much the same regardless of whether the taxpayers use an accrual or a cash method of accounting. These can include payroll, cash sales and purchases, and perhaps some other items. The petitioner had a number of such items on its books. However, it has not shown that any substantial recurring items were recorded on its books in a manner inconsistent with an accrual method of accounting. It has not shown that it did not accrue some taxes. Testimony of officers and stockholders that an accrual method was not used is unavailing where, as here, other better evidence contradicts their statements of general conclusions. In short, the petitioner has not sustained the burden imposed upon it of showing that the Commissioner erred in disallowing deductions for interest which accrued in years prior to the years of payment, in holding that Federal taxes accrued in the tax year and were not deductible in the next year when paid, Lewyt Corporation, 18 T. C. 1245, contra Olympic Radio & Television, Inc. v. United States, 108 F. Supp. 109, sustained on rehearing 110 F. Supp. 600, and in holding that the profit from a sale of sheep was income of the year in which the sale was made rather than of a later year. Also it has failed to show that the profit from the sale of cattle accrued in 1943.
The Commissioner now concedes that capital gains resulted from sales of cattle and sheep belonging to the breeding herds but still insists that unbred heifers and ewe lambs were not a part of those breeding herds. The petitioner thus has the burden of proving that the unbred heifers and ewe lambs were a part of the breeding herds and the profit from sales of those animals were long-term capital gains. There is almost no evidence in regard to the ewe lambs and the record does not justify a finding that they were a part of any breeding herd of sheep maintained by the petitioner or that they were held for more than 6 months prior to the sale in question. The petitioner had a dual ■purpose in holding unbred heifers after inventoring them as yearlings at the end of each year. One purpose was to sell as many of them, beginning with the poorer ones, as might seem desirable in the following year in the light of the then existing conditions such as the quantity of grass available, financial needs of the petitioner, market conditions, the extent to which the breeding herd had been reduced by losses, and other conditions. The other purpose was that some of the better animals would be available as replacements in the breeding herd, when they became 2-year-olds, to the extent that that would seem desirable in the light of some or all of the same conditions that have been mentioned. Cf. Walter S. Fox, 16 T. C. 854, affd. 198 F. 2d 719. The unbred heifers were kept separate from the breeding herd. Actually a large percentage of the unbred heifers on hand during each of the taxable years was sold and a fair inference is that a great many were held primarily for sale to customers in the ordinary course of the taxpayer’s business. Thus, it cannot be found as to any particular animal that it was being held up to the time of its sale for breeding purposes. The petitioner has failed to show by a fair preponderance of the evidence that the unbred heifers sold were capital assets. The petitioner, relying upon exhibits which it placed in evidence, argues, and in effect concedes, that its gains from the sales of yearling heifers for 1942 and 1943 were somewhat greater than the amounts claimed by the Commissioner. That point, like some others, may be adjusted in the computation under Eule 50.
The petitioner claims the right under sections 23 (s) and 122 to carry back to 1943 an alleged net operating loss of 1945 and under section 710 (c) (3) to carry back to 1943 an unused excess profits credit for 1945. The decision of these questions does not require consideration of the differences between the parties relating to accounting and tax reporting methods permissible to the petitioner for 1945. The petitioner transferred its assets as a liquidating distribution to its sole stockholder on August 15, 1945. Consequently, its sales of livestock for 1945 amounted to only $878.50, which was not unusual since sales were normally made after August of each year. Its total reported income for 1945 was only $7,245.53. It computes the alleged operating net loss for 1945 by deducting, from that small reported income, all of its operating expenses of 1945 including the substantial amounts paid in carrying its large herds of animals through the first 7% months of the year, whereas there is reason to believe that there would have been a profit rather than a loss had it completed the cycle by continuing its operations through the' usual selling period in the latter part of the year. The petitioner was operating successfully in 1945 with prospects of profits when it voluntarily dissolved and thereby prevented itself from reaping through later sales the usual benefits of its operating expenditures to that date. The liquidation, under which the herd including all growing animals was transferred to the sole stockholder without payment or taxable profit to the corporation, was the cause of the “loss” reported on the 1945 return. Liquidation is the opposite of operation in such a case.
Sections 23 (s), 122, and 710 (c) are relief provisions designed to give relief in “hardship cases.” Their legislative history shows that the deduction from income of a profitable year of a net operating loss carry-back from a later year was intended to apply only where a real “economic loss” was actually sustained in the later year. H. Rept. No., 855, 76th Cong., 1st Sess., p. 17 (1939-2 C. B. 504, 517); S. Kept. No. 1631, 77th Cong., 2d Sess., p. 51 (1942-2 C. B. 504, 546). Cf. Central Cuba Sugar Co., 198 F. 2d 214, reversing 16 T. C. 882, certiorari denied 344 U. S. 874. Although a literal application of those provisions might give at least some of the benefits which the petitioner here seeks, nevertheless, they should not be applied where there is no hardship, where no occasion for relief exists, and where Congress did not intend them to apply. The Supreme Court said in United States v. American Trucking Associations, Inc., 310 U. S. 534, at pages 543 and 544:
There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has lead to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the. legislation as a whole” this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of, words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.”
See also Vermilya-Brown Co. v. Connell, 335 U. S. 377; United States v. Dickerson, 310 U. S. 554, 562; Haggar Co. v. Helvering, 308 U. S. 389; Gregory v. Helvering, 293 U. S. 465; Helvering v. New York Trust Co., 292 U. S. 455; Mary A. Marsman, 18 T. C. 1, 12, affirmed in part and reversed in part 205 F. 2d 335. Cf. Helvering v. Owens, 305 U. S. 468. The petitioner in the present case sustained no economic loss in 1945. If it had any loss for that year, it was merely a tax-return loss created by the stockholder realizing the normal profits from large expenditures made and deducted by the corporation. Furthermore, this is not a hardship case.
To allow any unused excess profits credit of 1945 to be carried back to 1943, under the circumstances of this case, would likewise be contrary to the purpose which Congress had in mind in enacting section 710 (c) (3) as shown by the same legislative history. Congress intended the credit to be carried back only in cases where it was not needed in the tax year to offset normal earnings. Here it is available not because 1945 earnings were low but merely because they were avoided through the liquidation before the normal earning cycle was completed. The petitioner operated its business in the usual fashion up to August 15, 1945, and thereafter completely ceased to operate that business. If the business had been one in which income and expenses more or less paralleled each other from month to month, the case would be somewhat like one or more of those cited by the petitioner and some carry-back of an unused excess profits credit from 1945 might be in order, but the business was not of that kind. Instead, it was a business in which the expenses went on rather uniformly throughout each month of the year but practically all of the income was derived from sales which normally took place after August 15. Thus, this petitioner, which had practically no sales during 1945 (due solely to the fact that it voluntarily distributed its assets in liquidation to its sole stockholder on August 15, 1945, and thereafter the sole stockholder received the proceeds of the normal sales), seeks to carry back to 1943 whatever unused excess profits credit it may have for 1945. It was held in Wier Long Leaf Lumber Co. v. Commissioner, 173 F. 2d 549, affirming on this point 9 T. C. 990, that a liquidated corporation still in existence could not carry back to a prior year the unused excess profits tax credit of a year during all of which it had been in a state of complete liquidation. See also Rite-Way Products, Inc., 12 T. C. 475; Gorman Lumber Sales Co., 12 T. C. 1184; and Winter & Co., 13 T. C. 108. While those cases are not directly in point, they may point the way. Here, the petitioner, due to a complete liquidation in 1945, prevented itself from having any of its normal income from sales during that same year and as a result, apparently needs none of its excess profits tax credit for that year. Congress would have no more reason for allowing it to carry back to a prior year the unused credit than it would have for allowing the taxpayers in the four cases just cited to carry back unused excess profits tax credits from years in which they had no operating income.
The Court has no jurisdiction over the year 1945 in this proceeding and cannot consider that year except as it affects the taxable years, so details of the accounting for 1945 need not be considered and it is sufficient to hold that no right to a deduction for 1945 under section 23 (s) or a carry-back under section 710 (c) (3) has been established. The petitioner’s argument that inventories for 1943 and 1944 should be reduced because of some proposed adjustment for 1945 has no merit in fact or law.
Reviewed by the Court.
Decision will be entered under Rule 50.