First Chicago Corp. v. Commissioner

80 T.C. No. 31, 80 T.C. 648, 1983 U.S. Tax Ct. LEXIS 99

• Court: United States Tax Court
• Decided: April 6, 1983
• Docket: Docket No. 10037-78
• Status: Published

Opinions

OPINION

Dawson, Judge:

This case is before the Court on respondent’s motion for partial summary judgment and petitioner’s cross-motion for partial summary judgment. These motions are now assigned to Special Trial Judge Fred S. Gilbert, Jr., for consideration and ruling thereon. After reviewing the record, the Court agrees with and adopts his opinion, which is set forth below.¹

OPINION OF THE SPECIAL TRIAL JUDGE

Gilbert, Special Trial Judge:

By notice of deficiency mailed June 2, 1978, respondent determined a deficiency in petitioner’s Federal income tax for the taxable year 1972 in the amount of $298,861. The only issue for decision is whether the statute of limitations set forth in section 6501(a)² bars the assessment and collection of the deficiency determined by respondent.

All of the facts have been stipulated and are found accordingly. The stipulation of facts and the exhibits attached thereto are incorporated herein by this reference.

The petitioner, a corporation organized under the laws of Delaware, maintained its principal office at One First National Plaza, Chicago, Ill., at the time the petition herein was filed. In accordance with extensions granted by the Internal Revenue Service, petitioner filed timely Federal income tax returns for the taxable years 1972 and 1974 on May 17,1973, and June 13,1975, respectively.

Petitioner’s 1974 return reflected a net capital loss in the amount of $981,428.28, and an unused investment credit in the amount of $7,698,175.14. As a result of these two items, petitioner filed an application for a tentative refund of tax (Form 1139) pursuant to the "quick refund” provisions of section 6411.³ The application requested tentative carryback adjustments based upon an allocation of the entire net capital loss and $1,647,896.85 of the unused investment credit from 1974 to 1971. The Internal Revenue Service allowed the carryback adjustments as requested by petitioner and, as a result thereof, refunded $1,942,325.33 of tax previously paid by petitioner for 1971.

Neither the amount of either of the carryback adjustments nor the propriety of allowing either carryback to 1971 has ever been questioned by respondent or petitioner; both parties agree that the carrybacks reduced the 1971 tax imposed on petitioner by an amount equal to the 1971 tax refunded to petitioner. The disputed issue in this case instead concerns respondent’s determination as to the effect of the carryback adjustments on the tax imposed under section 56 for the taxable year 1972, and the effect, if any, of the adjustments on the period of limitations on assessment of a deficiency for 1972.

In addition to the other taxes imposed under chapter 1 (the income tax), section 56 imposes a tax (the minimum tax) on certain items of tax preference described in section 57. As in effect during 1971 and 1972, section 56 provided, in relevant part:

SEC. 56(a). In General. — In addition to the other taxes imposed by this chapter, there is hereby imposed for each taxable year, with respect to the income of every person, a tax equal to 10 percent of the amount (if any) by which—

(1) the sum of the items of tax preference in excess of $30,000, is greater than

(2) the sum of—

(A) the taxes imposed by this chapter for the taxable year * * * and

(B) the tax carry overs to the taxable year.

* * * * * * *

(c) Tax Carry Overs. — If for any taxable year—

(1) the taxes imposed by this chapter * * * exceed

(2) the sum of the items of tax preference in excess of $30,000, then the excess of the taxes described in paragraph (1) over the sum described in paragraph (2) shall be a tax carryover to each of the 7 taxable years following such year. The entire amount of the excess for a taxable year shall be carried to the first of such 7 taxable years, and then to each of the other such taxable years to the extent that such excess is not used to reduce the amount subject to tax under subsection (a) for a prior taxable year to which [such] excess may be carried.

When initially computing its minimum tax liability for 1972, petitioner properly used a portion of its 1971 income tax as a "tax carryover” to 1972 pursuant to section 56(a)(2)(B) and section 56(c). This tax carryover served to reduce the amount of the minimum tax imposed on petitioner for 1972. Following the allowance of the carryback adjustments described above, however, respondent determined a deficiency in petitioner’s minimum tax for 1972 on the basis that the tax carryover to that year should be reduced as a result of the decrease in petitioner’s 1971 income tax which resulted from those carry-back adjustments and that the sum of the items of tax preferences subject to tax should likewise be increased.

Petitioner does not challenge the theory upon which respondent’s determination is based; rather, petitioner contends that the statute of limitations for assessment of a deficiency for 1972 had expired at the time the statutory notice of deficiency for 1972 was issued. Petitioner relies on the general 3-year period of limitations prescribed in section 6501(a), which provides as follows:

SEC. 6501. LIMITATIONS ON ASSESSMENT AND COLLECTION.

(a) General Rule. — Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) * * * , and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.

Respondent recognizes that the general 3-year assessment period has expired. However, he argues that here the applicable period of limitations on assessment is prescribed in section 6501(h) and (j), rather than section 6501(a). Section 6501(h) and (j) provides, in relevant part:

(h) Net Operating Loss or Capital Loss Carrybacks. — In the case of a deficiency attributable to the application to the taxpayer of a net operating loss carryback or a capital loss carryback (including deficiencies which may be assessed pursuant to the provisions of section 6213(b)(2) [now section 6213(b)(3)]), such deficiency may be assessed at any time before the expiration of the period within which a deficiency for the taxable year of the net operating loss or net capital loss which results in such carryback may be assessed. * * *

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(j) Investment Credit Carrybacks. — In the case of a deficiency attributable to the application to the taxpayer of an investment credit carryback (including deficiencies which may be assessed pursuant to the provisions of section 6213(b)(2) [now section 6213(b)(3)]), such deficiency may be assessed at any time before the expiration of the period within which a deficiency for the taxable year of the unused investment credit which results in such carryback may be assessed, or, with respect to any portion of an investment credit carryback from a taxable year attributable to a net operating loss carryback or a capital loss carryback from a subsequent taxable year, at any time before the expiration of the period within which a deficiency for such subsequent taxable year may be assessed.

Under section 6501(h) and (j), the period for assessing a deficiency attributable to the application to the taxpayer of a net operating loss carryback, capital loss carryback, or investment credit carryback is the same as the period within which a deficiency may be assessed for the taxable year in which the net operating loss, capital loss, or investment credit arose. Since the deficiency determined in this case can be traced to the capital loss and investment credit which arose in 1974, respondent contends that these sections extend the period for assessing that deficiency to include the period for assessing a deficiency for 1974. The notice of deficiency in this case was mailed within 3 years after the return for 1974 was filed; therefore, relying upon section 6501(h) and (j), respondent argues that the period for assessing a deficiency for 1972 has not yet expired. We disagree with respondent. In our opinion, section 6501(h) and (j) does not apply in this case.

The quick refund provisions of section 6411 and the provisions of section 6501(h)⁴ were originally enacted as sections 3780 and 276(d) of the Internal Revenue Code of 1939 by the Tax Adjustment Act of 1945 (Act of July 31, 1945, ch. 340, 59 Stat. 521, 525). The report of the House Ways and Means Committee on this legislation (H. Rept. 849, 79th Cong., 1st Sess. (1945), 1945 C.B. 566) contains the following pertinent passages (1945 C.B. at 583):

In recognition of the fact that, due to the short period of time allowed [generally 90 days], the Commissioner necessarily will act upon an application for a tentative carry-back adjustment only after a very limited examination, subsection (c) of section 3780 [now section 6213(b)(3)] provides a summary procedure whereby the Commissioner and the taxpayer each may be restored to the same position occupied prior to the approval of such application. Subsection (c) provides that if the Commissioner determines that the amount applied, credited, or refunded with respect to an application for a tentative carry-back adjustment is in excess of the overassessment properly attributable to the carry-back upon which such application was based, he may assess the amount of the excess as a deficiency as if such deficiency were due to a mathematical error appearing on the face of the return. * * *

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It is to be noted that the method provided in subsection (c) of section 3780 to recover any amounts applied, credited, or refunded under section 3780 which the Commissioner determines should not have been so applied, credited, or refunded is not an exclusive method. It is contemplated that the Commissioner will usually proceed by way of a deficiency notice in the ordinary manner, and the taxpayer may litigate any disputed issues before The Tax Court. The Commissioner may also proceed by way of a suit to recover an erroneous refund. [Emphasis added.]

With respect to the provisions for extending the period of limitations now prescribed in section 6501(h) and (j), the report states (1945 C.B. at 588):

Subsection (e) of section 5 of the bill adds a new subsection (d) to section 276 of the Code, relating to the period within which assessments may be made. Such new section 276(d) [now section 6501(h)] provides that a deficiency attributable to a net operating loss carry-back or an unused excess profits credit carry-back, including those amounts which may be assessed pursuant to the provisions of section 3780(b) and (c), may be assessed at any time prior to the expiration of the period within which a deficiency may be assessed with respect to the taxable year of the claimed net operating loss or unused excess profits credit resulting in such carry-back. * * * In determining whether there is a deficiency attributable to a carry-back, proper adjustment shall be made in computing the net operating loss or unused excess profits credit, in computing the carry-backs, and in computing the amount of the net operating loss deduction or unused excess profits credit adjustment. * * * [Emphasis added.]

As the committee report shows, the extended periods of limitation prescribed in section 6501(h) and (j) apply only where: (1) A carryback is erroneously applied to the taxpayer; (2) as a result of the carryback, a tax is improperly refunded on the ground that the tax thought to be imposed was less than the tax actually imposed; and (3) a deficiency⁵ results when the Commissioner makes an adjustment to or disallows the carryback upon discovering an error in applying the carryback or in determining the amount or existence of the loss or credit giving rise to the carryback. Under these circumstances, the period of limitations for the year to which the carryback is applied is extended by section 6501(h) and (j) to permit the Commissioner to recover the tax which was refunded as a result of the erroneous application of the carryback to the taxpayer. See Bennett v. Commissioner, 65 T.C. 506 (1975); Bouchey v. Commissioner, 19 T.C. 1078 (1953); Leuthesser v. Commissioner, 18 T.C. 1112, 1123-1126 (1952). See also sec. 6501(m); Pesch v. Commissioner, 78 T.C. 100, 131-137 (1982); Jones v. Commissioner, 71 T.C. 391, 395-398 (1978); Maxcy v. Commissioner, 59 T.C. 716, 729-731 (1973).

Here, the respondent seeks to have the Court open up a closed year for the purpose of asserting a deficiency attributable to the correction in the amount of the "tax carryover,” provided by section 56(c), from the year 1971 to the year 1972 used in computing the base for the minimum tax for 1972. It is well settled that a closed year cannot be opened for further assessment of tax except upon a specific mandate in the statute. Yet, the only authority offered for this request to open a closed year, section 6501(h) and (j), provides for extending the statute of limitations only in the case of deficiencies attributable to "carrybacks.” The difference in the treatment accorded "carrybacks” and "carryovers” in the Internal Revenue Code makes it obvious that the Congress was fully aware of the difference between the two. Thus, there is no basis for any contention that the term "carrybacks” used in the statute extending the period of assessment should be construed to include "carryovers” as well. No authority for such a proposition has been cited, and we know of none.

In the instant case, as indicated, there were no carrybacks applied to 1972, the year of the deficiency. In addition, the carrybacks to 1971 in question were not erroneously applied to the petitioner, the refund that resulted from the carrybacks was not improper, and the deficiency determined by respondent does not result from any adjustments to or disallowance of either of the carrybacks or the capital loss or investment credit from which those carrybacks arose. Furthermore, since no refund was ever made for 1972, the assessment of the deficiency in question would obviously not result in the recovery of a refund for that year.

In view of the foregoing, we conclude that the facts presented in this case are simply outside the scope of section 6501(h) and (j). Since respondent mailed the notice of deficiency after the expiration of the period of limitations set forth in section 6501(a), assessment of the deficiency in question is barred. Accordingly, respondent’s motion for partial summary judgment will be denied and petitioner’s cross-motion for partial summary judgment will be granted.

An appropriate order and decision will be entered.

Reviewed by the Court.

1 Since the motions herein are pre-trial motions, the Court concludes that the post-trial procedures set forth in Rule 182, Tax Court Rules of Practice and Procedure, are not applicable in this case. This conclusion is based upon the authority of the "otherwise provided” language of that Rule.

2 Unless otherwise indicated, all section and chapter references are to the Internal Revenue Code of 1954 as in effect for the period in issue.

3 Sec. 6411(a) provides that a "taxpayer may file an application for a tentative carryback adjustment of the tax for the prior taxable year affected by a net operating loss carryback * * * , by an investment credit carryback * * * , or by a capital loss carryback * * * , from any taxable year.”

Sec. 6411(b) provides that, within "a period of 90 days from the date on which an application for a tentative carryback adjustment is filed under subsection (a), * * * the Secretary shall make, to the extent he deems practicable in such period, a limited examination of the application, to discover omissions and errors of computation therein, and shall determine the amount of the decrease in the tax attributable to such carryback upon the basis of the application and the examination.”

4 Although added to the Internal Revenue Code of 1954 at a later time, the purpose and effect of sec. 6501(j) is essentially the same as that of sec. 6501(h). See Technical Explanation of the Revenue Act of 1962, to accompany H.R. 10650 (Pub. L. 87-834), 87th Cong., 2d Sess. (1962), 1962-3 C.B. 841,870-871.

5 SEC. 6211 DEFINITION OF A DEFICIENCY.

(a) In General. — For purposes of this title * * * the term "deficiency” means the amount by which the tax imposed * * * exceeds the excess of—

(1) the sum of

(A) the amount shown as the tax by the taxpayer upon his return * * * plus

(B) the amounts previously assessed (or collected without assessment) as a deficiency, over—

(2) the amount of rebates, as defined in subsection (b)(2), made.

(b) Rules for Application of Subsection (a). — For purposes of this section—

(2) The term "rebate” means so much of an abatement, credit, refund, or other payment, as was made on the ground that the tax imposed * * * was less than the excess of the amount specified in subsection (a)(1) over the rebates previously made.