Hercules Inc. v. United States

38 Cont. Cas. Fed. 76,387, 26 Cl. Ct. 662, 1992 U.S. Claims LEXIS 366, 1992 WL 197380
United States Court of Claims·Decided August 17, 1992·No. No. 49-89 C·Published·Cited by 2 cases

Opinion

OPINION

WIESE, Judge.

In an earlier phase of this lawsuit, the court ruled that income taxes paid to the State of Virginia on gain realized from the sale of a corporate asset qualified as reimbursable costs under plaintiff’s contract for the management and operation of a Government-owned munitions facility located in that state. Although we held these taxes to be both allowable and allocable to [663]*663the contract in issue, we nevertheless went on to deny plaintiffs motion for summary judgment because the case raised other issues not answerable on the basis of the existing record. Hercules, Inc. v. United States, 22 Cl.Ct. 301 (1991). Further briefing was directed.

The case is once again before us on plaintiffs renewed motion for summary judgment and defendant’s opposition thereto. Oral argument in this second round of the lawsuit was heard January 14,1992; subsequently, at the parties’ request, the court suspended proceedings to allow settlement negotiations to be undertaken. Unfortunately, those negotiations did not resolve all issues. Accordingly, we now lift the suspension and go on to decide the remainder of the case.

I

The pertinent factual and legal background of this suit is set forth in the court’s earlier opinion. For the sake of convenience, we restate part of that background here.

Hercules is a multi-state corporation whose business activities include the operation of a Government-owned munitions plant for the United States Army. This plant, located in Radford, Virginia, has been managed by Hercules under a cost-reimbursement contract with the Federal Government since 1941. In 1987, Hercules’ income for Virginia state income tax purposes included a long-term capital gain which the company had realized from the sale of its investment in a polypropylene resin manufacturing facility (the “Himont stock sale”). That facility bore no functional connection to the Government-owned Radford munitions plant.

In the prior phase of this lawsuit, the court was asked to determine whether regulations governing the allowability of costs under Government contracts permitted Hercules to assign to the Radford contract a share of the company’s Virginia income tax undiminished by the amount of tax attributable to the Himont stock sale. The question, in other words, was whether Rad-ford could be required to bear its respective share of the state’s income tax without regard to the nature of the corporate activity that generated the income upon which the tax was imposed. We concluded that the income tax which Hercules paid to the State of Virginia on the extraordinary gain realized from the Himont stock sale was allowable, in full, as a performance cost under the Radford contract. 22 Cl.Ct. at 305.

The question that was left for later decision concerned the amount of the state income tax that Hercules assigned to the Radford facility. More particularly, the question has to do with the dual allocation method that Hercules uses in determining costs chargeable to Government contracts. As explained in the earlier opinion, state income taxes chargeable to Radford are determined by a direct identification method, that is, the allocation is accomplished through use of the same formula by which the amount of Virginia-based income is determined in the first instance. The result is that Radford’s share of state income taxes is directly proportionate to its contribution to the amount of total corporate income identifiable to Virginia.

As to the balance of the Virginia income tax, this is placed in a pool (along with other state income taxes) that is then allocated among all corporate segments, including those performing other Government contracts.1 In effect then, Hercules accounts for costs assignable to Government contracts through a hybrid allocation scheme—the Radford contract receives what is essentially a direct allocation while all other contracts have their shares determined by a surrogate method.

The difficulties with this allocation methodology—and the reason the court initially withheld the granting of summary judgment to plaintiff—are two-fold. The imme[664]*664diate problem had to do with assuring the fairness of the amount allocated to Rad-ford. Given Hercules’ dual allocation methodology, the question that needed to be answered was whether the direct allocation method actually permitted a larger percentage of state income tax costs to be accumulated against the Radford contract than would be the case if Hercules adhered to a single allocation method, i.e., the pooling method. The question, in other words, was whether these side-by-side allocation schemes, when examined on a corporate-wide basis, masked a disproportionate allocation of costs to Radford.

The second and more fundamental problem associated with plaintiff’s allocation methodology concerns its hybrid character: costs are assigned to government contracts using two different allocation schemes. Even if such an approach were shown not to involve discriminatory cost shifting, the question that remained was whether this dual allocation scheme was compatible with the standards governing the allocation of costs to government contracts—the Cost Accounting Standards (CAS).2

The parties have been given the opportunity to address these issues both in writing and in oral argument. Based on this exchange of views, we now note the following.

II

Addressing first of all the fairness of the tax costs allocated to Radford, on this issue the parties have reached an agreement. That is to say, both find facially acceptable an allocation to Radford (using the direct allocation method) that results in a contract cost of $4,870,446. What the parties’ agreement does not resolve, however, is the larger issue presented here, namely, the legitimacy of Hercules’ continued use of a dual allocation method.

On this issue, Hercules argues, first of all, that it is moot, given the parties’ agreement on the amount of state income taxes allocable to Radford. Hercules would therefore have us leave a decision on this issue for another day. But—the argument continues—even if we do go on to address the issue now, the outcome would have to be in Hercules’ favor.

Focusing on the merits of the problem, Hercules’ contention is that the Cost Accounting Standards do not prohibit the simultaneous use of a direct or representative method to allocate the income taxes of one state and a surrogate method (such as the pooling method) to allocate the income taxes of other states. All that is required, maintains Hercules, is that the allocation methodology ensure that the taxes of a particular jurisdiction be allocated only to segments doing business in the taxing jurisdiction.

The Government answers both parts of Hercules’ position with the same argument. From its point of view, adherence to a hybrid allocation scheme in the assignment of costs to Government contracts violates, a fundamental tenent of the Cost Accounting Standards, namely, that costs incurred for similar purposes be allocated similarly. And since those Standards are uniformly applicable to all of Hercules’ contracts with the Government—the argument continues—Hercules cannot maintain that it has fully complied with the requirements of the Radford contract while simultaneously insisting on a right to a different allocation scheme under other Government contracts.

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Hercules Inc. v. United States, 38 Cont. Cas. Fed. 76,387, 26 Cl. Ct. 662, 1992 U.S. Claims LEXIS 366, 1992 WL 197380 (cc 1992).

38 Cont. Cas. Fed. 76,387 (Hercules Inc. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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