General Motors Corporation v. The United States

709 F.2d 1476, 52 A.F.T.R.2d (RIA) 6510, 1983 U.S. App. LEXIS 13611

• Court: Court of Appeals for the Federal Circuit
• Decided: June 15, 1983
• Docket: Appeal 52-71, 453-71
• Status: Published

Opinions

JACK R. MILLER, Circuit Judge.

Taxpayer (“GM”) originated these actions under 26 U.S.C. § 6416(b)(1)¹ in the United States Court of Claims to recover manufacturers excise taxes alleged to have been improperly assessed and collected for the period January 1, 1961, through December 31, 1966, in the amount of $2,466,162 in tax and $48,935.88 in assessed interest in No. 52-71 and $5,179,840 in tax and $124,200 in assessed interest in No. 453-71, plus statutory interest. The trial judge filed a report on the merits (50 A.F.T.R.2d (P-H) 6274) on September 30, 1982, recommending a decision for the Government. Pursuant to this court’s order of October 4, 1982, the Claims Court on October 8, 1982, ordered that judgment be entered in accordance with the trial judge’s earlier report, and the final decision was then deemed to be on appeal to this court.² Aleut Tribe v. United States, 702 F.2d 1015, 1018 (Fed.Cir.1983). We affirm in part and reverse in part.

BACKGROUND

During the period under consideration, GM made payments to dealers (or credited their parts accounts) under five demonstration programs: GMC Heavy-duty Truck Program, Chevrolet Heavy-duty Truck Program, Chevrolet Passenger Car Program, Chevrolet Light-duty Truck Program, and GMC Light-duty Truck Program.³ The payments and credits were made on the basis of factory invoice net price to the dealer of the demonstrator vehicle (GMC and Chevrolet heavy-duty trucks only) or of manufacturer-designated optional equipment packages ordered by the dealer (on demonstrator GMC and Chevrolet light-duty trucks and Chevrolet passenger cars). These programs are discussed below:

GMC Heavy-duty Truck Program

During the mid-1950’s, GMC Truck understood that its principal competitors in the heavy-duty truck field were, through their company-owned retail outlets, using demonstrators to conduct demonstrations (work tests) for prospective customers. These consisted of allowing such customers to use the vehicle in their regular service. To meet this competition, GMC Truck dealers, through their dealer councils, submitted requests to GMC Truck to give consideration to various approaches to aid dealers in making heavy-duty trucks more easily available for demonstration and display. In response, GMC Truck in 1958 devised and implemented the Heavy-duty Truck Program to help its dealers better understand the needs of customers and to increase its share of the heavy-duty truck market. Under the program, which was continued during the years involved in this case, a dealer was required to obtain approval of his zone manager before ordering a demonstration vehicle, which was owned and financed by the dealer. Under the program, participating dealers could receive payments (or credits) of 10 percent and IV2 percent of the factory invoice net price of the demonstration vehicle if, within 90 days of receiving the vehicle, the dealer conducted a minimum of 5 separate work test demonstrations of at least 500 miles per test and a minimum of 6,000 total miles. GMC Truck established a “detailed procedure for setting up and conducting the Heavy Duty demonstrations and for reporting the results thereof.” Dealers were required to file a claim for payment within 150 days after receiving the vehicle. Operator reports were required upon completion of each work test. If the established procedure was not followed, payment to the dealer would not be made unless the deficiencies were corrected. The 10 percent payment was intended to offset the reduction in sale value from the vehicle’s use in the work test demonstrations. The IV2 percent payment was intended to cover 50 to 60 percent of miscellaneous expenses on a demonstration vehicle, which GM Truck expected the dealer to underwrite, such as preparing it for demonstrations, mounting special equipment, repairs, maintenance, gasoline, licensing fees, and insurance.⁴

Chevrolet Heavy-duty Truck Program

This program, which was established by Chevrolet in 1965, was essentially the same as the GMC Heavy-duty Truck Program. Chevrolet Passenger Car Program

In 1961, Chevrolet established a passenger car demonstration program for model year 1962 under which a dealer received an allowance of from $26 to $55 on specified packages of options ordered with cars to be used as demonstrators and shipped by a certain date. No deviation in the items comprising an option package was permitted. The vehicles were required “to be placed in Demonstrator Service,” although there was no requirement that they be used in demonstration for a minimum number of times or miles. A dealer was limited on the number of option packages that could be ordered. Applications for the allowance had to be submitted to Chevrolet by a certain date. Similar option package allowance programs were offered by Chevrolet during the 1963 through 1965 model years. Under these programs, the amount of the allowance was 20 percent of the dealer price for the option package, which came to $26 to $92. Option package allowances were not specifically tied to direct costs of vehicle demonstrations or decline in value due to use of the vehicles as demonstrators.⁵ This program was designed to increase the number of Chevrolet passenger cars on the streets, thereby increasing the visibility of the Chevrolet product to the public, to provide the salesmen with a useful sales tool, the cost of which the dealers were reluctant to incur, and to sell more option packages.

Chevrolet Light-duty Truck Program

In July of 1961, Chevrolet announced its demonstrator program for the 1962 model year, establishing a national objective of selling 4,500 truck demonstrators to dealers. The program included allowances (credits to a dealer’s parts account) on four option packages for two light-duty truck models, and these allowances are involved in this suit. The option packages included such items as “custom appearance,” “custom comfort,” “custom chrome,” full view rear window, windshield washer and wipers, radio, V8 engines, wheel covers, and automatic or heavy-duty transmissions. The allowances ranged from $20 to $65. A dealer was required to submit an affidavit certifying that the demonstrators ordered with option packages were used for demonstration services during the four-month period of October through January of 1962, but “demonstration services” was not defined, and no minimum amount of such services was specified. Regional and zone managers were instructed to keep a record of the demonstrators shipped to dealers in order to check the information in the dealers’ affidavits and allowance claims. However, no verification of a dealer’s actual use of a vehicle as a demonstrator was made.

The number of specially-equipped, light-duty truck demonstrators that could be ordered under the option package allowance program depended on the number of dealer salesmen, the dealer being permitted to order one demonstrator for each six salesmen or fraction thereof. There were two reasons for that limitation: first, to give all dealers an opportunity to obtain a reasonable number of light-duty trucks early in the model year; and second, to limit the financial advantage that any single dealer could have from the allowances.

Substantially similar option package demonstrator allowance programs to that for 1962 were established for the 1963 through 1966 model years. Beginning with 1964, allowances were changed to 20 percent of the dealer net price of the option packages. No minimum period of demonstrator service was prescribed, and dealers were no longer required to certify that a demonstrator had been used in demonstration service for a four-month period. The number of demonstrators eligible for the option package allowances was based on the number of demonstrators unsold on June 30 of the model year and could not exceed the number of demonstrators ordered in October of the model year. A dealer would secure his allowances by submitting an application between June 30 and September 30 following the end of that model year program.

The reason for the option package allowance program was to provide dealers a financial inducement to add specified options to vehicles that were ordered as demonstrators.

GMC Light-duty Truck Program

This program, which was established for 1965 and 1966, was essentially the same as the Chevrolet Light-duty Truck Program.

ANALYSIS

The trial judge correctly observed that a price readjustment that will generate an excise tax refund or credit occurs when the manufacturer lowers the price of an article by making a payment to the dealer that is in consideration of retailing expenses incurred by the dealer, as opposed to manufacturing expenses which must remain as a part of the sale price on which the manufacturers excise tax is imposed. He properly stated that a manufacturer cannot pay a dealer to perform some portion of the manufacturers function and thereby gain a reduction in the manufacturers excise tax by claiming that the price on which the tax is imposed has been lowered as a result of such payments to the dealer. However, in deciding for the Government, the trial judge relied heavily on General Telephone & Electronics Corp. (“Sylvania”) v. United States, 176 Ct.Cl. 904, 364 F.2d 853 (Ct.Cl. 1966), which he concluded had “ruled that promotional expenses did not constitute bona fide discounts, rebates or allowances.” A close reading of the opinion in Sylvania indicates that this conclusion is an oversimplification of the opinion.

In analyzing Sylvania’s “Cooperative Advertising Plan,” the Court of Claims stated that the majority opinion in the General Motors cases⁶ required a holding that Syl-vania’s Radio and Television Division “readjusted” downward the prices at which it sold Sylvania radios and televisions, to the extent that the Radio and Television Division provided funds for partially reimbursing retail dealers in connection with their local advertising costs under the division’s Cooperative- Advertising Plan. Insofar as the plan covered expenses which could not “fairly be characterized as advertising costs,”⁷ the Court of Claims said “such expenditures cannot be allowed [to readjust downward the prices as a basis for refund of excise tax], for the reasons given in the next section of this opinion.”

The next section of the opinion is headed “Spring Promotion Plan.” Under this “promotion” plan, there were three activities: (1) discounts to distributors and dealers on slow-moving models, special credits in the form of merchandise, and cash allowances on models in stock affected by price reductions, all of which the court said clearly came within the scope of the discount, rebate, or allowance provision of the Internal Revenue Code; (2) reimbursements to distributors and dealers for advertising costs (a relatively small portion of the money in the plan fund was used for this), which the court treated in the same manner as the reimbursements for advertising under the Cooperative Advertising Plan; and (3) reimbursements to dealers and distributors for “promotional activities” (for prize trips, premiums like television lamps or bases, jackets with Sylvania insignia, and excursions), which the court held not allowable for readjustment downward of prices as a basis for refund of excise tax.

The next section of the opinion is headed “Special Promotion Plan.” Under this promotion plan, which Sylvania instituted “to help meet a critical competitive situation,” there were three activities: (1) discounts and credits to distributors and dealers, which the court held allowable, as in the Spring Promotion Plan; (2) reimbursement to distributors and dealers for advertising costs, also held allowable; and (3) reimbursements to dealers and distributors for “promotional expenses” (not specifically identified), held not allowable as in the case of “similar expenditures” under the Special Promotion Plan.

The last section of the opinion is headed “Special Promotion Fund (Tube Divisions).” Under this promotion plan, which was established by Sylvania “to provide funds to assist tube distributors to move merchandise from their shelves to dealers,” the funds were used “exclusively for promotional activities,” namely: (1) for articles ordered by dealers from Sylvania-furnished catalogs (signs, window display kits, telephone book covers, Zippo lighters, salesmen’s cards, shipping labels, calendars, clocks, service kits, tube chests, tools, technical manuals, and various other similar articles), which the distributor could retain or pass on to his dealers; (2) two separate programs involving the use of scrip to enable distributors and dealers to purchase merchandise at cost or a slight loss to Syl-vania. The court concluded that these funds were comparable to the “promotional parts of the Spring Promotion Plan and the Special Promotion Plan of the Radio and Television Division,” and held that they could not be taken into account in computing an excise tax refund.

Thus, the Court of Claims determined that expenditures by Sylvania for discounts to distributors and dealers and for reimbursements to distributors and dealers for advertising costs, although carried out under various “promotion plans,” were allowable for readjustment downward of prices as a basis for refund of excise tax; whereas, expenditures for reimbursements to dealers and distributors for “promotional expenses” consisting of the costs of such items as prize trips, premiums like television lamps or bases, jackets with Sylvania insignia, excursions, cruises, signs, window display kits, telephone book covers, Zippo lighters, salesmen’s cards, shipping labels, calendars, clocks, service kits, tube chests, tools, technical manuals, and various other similar articles, were not. Accordingly, the opinion in the Sylvania case cannot properly be deemed dispositive of the question whether GMC’s payments to dealers under the five auto and truck demonstration programs are allowable for readjustment downward of prices as a basis for refund of excise tax.⁸

The question remains whether the demonstrator and option packages programs were at least predominantly “within the realm of the manufacturer,” to borrow a phrase from the trial judge’s opinion,⁹ or predominantly within the realm of the dealers.

With respect to the payments to dealers, appellant places great reliance on General Motors Corp. (“Pontiac”) v. United States, 168 Ct.Cl. 301, 339 F.2d 648 (Ct.Cl.1964), where Pontiac paid $25 to its dealers for each specified 1954 Pontiac sold during a stated time period provided the dealers proved that they had paid a corresponding amount to their salesmen responsible for the sales. (The Internal Revenue Service had allowed payments to dealers of $75 for each Pontiac sold under a bonus plan as a price readjustment in computing the manufacturers excise tax.) In holding that the $25 payments were allowable as a price readjustment, the court said that the $25 payments and the $75 payments comprised a “totally integrated bonus plan,” and that “The success of this plan certainly was partially, and even largely attributable to the additional $25 payment.” 339 F.2d at 651. The Government responds that the court rejected its position in Pontiac “because the salesmen were not under the control of the manufacturer,” thus distinguishing the $25 payments in Pontiac from the payments to dealers on demonstrator options in this case. The court did, indeed, conclude that there was no element of control by Pontiac over the dealers’ salesmen in rejecting the Government’s position that the case was controlled by F.W. Fitch Co. v. United States, 323 U.S. 582, 65 S.Ct. 409, 89 L.Ed. 472 (1945).¹⁰

Appellant also relies upon language quoted by the Pontiac court from General Motors Corp., Frigidaire Division v. United States, 149 Ct.Cl. 749, 277 F.2d 929, 930-31 (Ct.C1.1960), which states generally the manufacturer’s motivations in granting bona fide discounts, rebates, or allowances. However, the holding in Frigidaire had to do with payments to dealers under a cooperative advertising plan, and such payments were expressly made allowable for price readjustment by an amendment to the statute a few months after the Frigidaire decision. (See note 1, supra.) We have no quarrel with the general statement of manufacturer’s motivations, which does not attempt to provide guidelines for determining when payments by a manufacturer are predominantly within the realm of the manufacturer; nor is the factor of control in making that determination discussed. Significantly, the reports of the House Ways and Means Committee and the Senate Finance Committee accompanying the bill that became Pub.L. No. 86-781 (S.Rep. No. 1916, 86th Cong., 2d Sess. 3, reprinted in 1960 U.S.Code Cong. & Ad.News 3798, 3800, H.R.Rep. No. 2103, 86th Cong., 2d Sess. 2), stated:

Your committee concluded that due to the confusion as to the status of advertising charges, in determining manufacturers’ sales prices, there was need for statutory clarification, as well as some limitations as to the extent to which such exclusions or adjustments should be allowed. Your committee concluded that it is appropriate to exclude from the manufacturers’ sales price a reasonable amount of local advertising where the advertising is under the control of the distributor. [Emphasis added.]

Accordingly, we conclude that the element of control is decisive in determining whether the demonstrator and option packages programs were predominantly within the realm of the manufacturer or predominantly within the realm of the dealers.¹¹ This conclusion is entirely consistent with the Court of Claims’ opinions in the Frigidaire and Sylvania cases, and the dissenting opinion’s citation to South Corporation v. United States, 690 F.2d 1368 (Fed.Cir.1982), is inapposite.

As to the 10 percent payments under the two heavy-duty truck work test demonstration programs, although GM management looked to the dealers to physically conduct the vehicle demonstrations, these programs were established by GM in response to resolutions of dealers, many of whom could not afford the economic burden involved in conducting demonstrations; and, the programs were controlled by GM, which promulgated the required detailed procedures for conducting demonstrations and for reporting the results thereof. Therefore, we are persuaded that the work test demonstrations were predominantly within the realm of the manufacturer. The record sufficiently supports the trial judge’s conclusion that the 10 percent payments were not allowable for readjustment downward of prices of the demonstration vehicles as a basis for refund of excise tax.

With respect to the IV2 percent payments under the two heavy-duty truck demonstration programs, it does not appear that these were reimbursements for activities controlled by GM, but, rather, for miscellaneous expenses incurred by the dealers on demonstration vehicles. We are satisfied that such expenses related to activities that were, at least, predominantly within the realm of the dealers.¹² The conclusion of the trial judge that the \lk percent payments were not allowable for readjustment downward of price of the demonstrator vehicles is not sufficiently supported in the record.

Regarding the allowances made to dealers for option packages, although the degree of control in the involved programs was not as great as with the 10 percent payments under the two heavy-duty truck work test demonstration programs, we are persuaded that the programs were predominantly within the realm of the manufacturer. We note, particularly, that the vehicles involved had to be used as demonstrators, the number of demonstrator vehicles that could be ordered with the option packages was limited,¹³ the make-up of the packages could not be altered, and the time period for making application was specified. Accordingly, we hold that the record sufficiently supports the trial judge’s conclusion that the payments (credits) to dealers under the option package programs were not allowable for readjustment downward of prices of the packages as a basis for refund of excise tax.

The decision of the Claims Court is affirmed in part and reversed in part, with remand for determination of quantum.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

1 . 26 U.S.C. § 6416(b)(1) constitutes § 6416(b)(1) of the Internal Revenue Code of 1954, as amended, and provides as follows:

Price readjustments. — If the price of any article in respect of which a tax, based on such price, is imposed by chapter 32, is readjusted by reason of .. . a bona fide discount, rebate, or allowance, including a readjustment for local advertising ... the part of the tax proportionate to the part of the price repaid or credited to the purchaser shall be deemed to be an overpayment....

The phrase including readjustment for local advertising was inserted by Pub.L. No. 86-781, 74 Stat. 1017 (1960).

2 . This court’s jurisdiction is based on section 127(a) of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25, 37-38 (to be codified at 28 U.S.C. § 1295(a)(3)) (1982).

3 . Two of the unincorporated divisions through which GM conducted business were GMC Truck and Coach Division (“GMC Truck”) and Chevrolet Motor Division (“Chevrolet”).

4 . Prior to and continuing through the years under consideration, GMC Truck granted its dealers a 5 percent allowance on new and unused vehicles unsold and in the dealer’s inventory on the day when it was publicly announced that the current model and body type was discontinued and a new model and body type substituted. Those vehicles eligible for the heavy-duty demonstrator 10 percent payments (credits) could not also receive the 5 percent model change allowance because GMC Truck management believed that the demonstrator payments (credits) were sufficient to prevent a dealer from incurring a substantial loss on resale.

5 . The demonstration vehicles were eligible for 5 percent model change allowances, which are not in issue here.

6 . General Motors Corp., Frigidaire Division v. United States, 149 Ct.Cl. 749, 277 F.2d 929 (1960), and three other GMC cases reported in 154 Ct.Cl. 866 (1961).

7 . E.g., a “special promotion plan known as Sylvania’s TV Seabreeze Cruise” under which expenses of dealers, who qualified by purchasing a specified number of television sets, were categorized by Sylvania as “special promotion” and paid from the Cooperative Advertising Plan fund.

8 . The dissenting opinion states that the court in Sylvania held that rebates for “promotional expenses” were not allowable to a manufacturer for readjustment downward of prices as a basis for refund of excise tax. More precisely, the court disallowed certain specific promotional expenses, as detailed above in this opinion. At the same time, however, as related above, the Sylvania court held that other “promotion plan” expenditures (discounts and credits to distributors and dealers and reimbursements to distributors and dealers for advertising costs) were allowable. Thus, the label “promotion” or “promotional” is not decisive; whereas, the specific nature of the expenditure is. (As pointed out in note 1, supra, Congress amended the Internal Revenue Code in 1980 to specifically allow readjustment for local advertising costs.)

9 . We use the word “predominantly” advisedly. The trial judge found that the programs were clearly of mutual benefit to GMC and its dealers and that there are aspects of the programs “which could be categorized as retailing.” He noted that neither of the parties had attempted to apportion the payments between retailing and manufacturing aspects of the programs but, instead, had argued for an all-or-nothing approach.

10 . The dissenting opinion asserts that the majority opinion uses a “new control test.” However, this ignores that the tax-writing committees of Congress established this test in 1960 (see infra) and that the Court of Claims used it four years later in the Pontiac case. The dissenting opinion says that the latter usage had to do with the “master-servant relationship” of the manufacturer and the dealers’ salesmen, and “had nothing to do with a test for an allowance of a rebate or discount for excise tax purposes.” On the contrary, it had everything to do with the allowance of the rebate, for if the salesmen had not been under the dealers’ control, and, instead, had been within the realm of the manufacturer, the rebate or discount would not have been allowed.

11 . Our conclusion rests on the statute, this court’s precedent, and legislative history shown in the reports of the tax-writing committees of Congress. The Government also relies on Treas.Reg. § 48.6416(b)-l(b)(5), which provides, in part that—

repayments made to the vendee do not effectuate price readjustments if given in consideration of circumstances under which he has been or is required to incur an expense which, if treated as a separate item in the original transaction and not included in the price billed for the taxable article, would nevertheless have been includible in the price of the article for purposes of computing the tax. For example, ... repayments made by a manufacturer to his vendee in consideration of an expenditure made or to be made by the vendee ... for demonstration or display of the manufacturer’s product by the vendee, do not effectuate price readjustments.

Appellant argues that reduction in sale value from a vehicle’s use in a work test demonstration is not an “expenditure.” We need not decide this point and merely note that a longstanding Treasury regulation carries considerable weight, especially where, as here, the statute (26 U.S.C. § 6416(b)) provides for promulgation of regulations by the agency.

12 . GM argues that “demonstrating a vehicle to a prospective retail purchaser is probably the quintessential retail expense.” Although demonstration vehicles were owned by the dealers and direct contact with a customer was by the dealer, this argument overlooks the difference between expenses incurred by dealers in preparing and maintaining vehicles for demonstration, which activities were not controlled by GM, and loss in value of demonstrators under the work test demonstration programs, which were controlled by GM. GM also argues that it and its dealers treated the demonstration vehicle allowances as “the economic equivalent of GM’s model change and carryover allowances, which are concededly bona fide rebates.” However, this argument overlooks the fact that the demonstration vehicle allowance program was controlled by the manufacturer and was predominantly within the manufacturer’s realm, whereas, inventories of vehicles affected by model changes were obviously owned and controlled by the dealers and were predominantly within the dealers’ realm. GM argues further that the allowances to dealers were “fungible” and could be used in whatever manner the dealers chose — -just as in the case of model change allowances. However, this argument not only misses the difference in control, but would not seem to be apposite where allowances were credited to the dealers’ parts accounts.

13 . James E. Conlon, who was Chevrolet’s Assistant General Sales Manager for trucks during most of the involved years, testified that “we wanted to put control on [the number of demonstrators that could be ordered with option packages] so that one dealer could not order an inordinate number of units under the program and have an unfair distribution of the product.”