John Wanamaker Philadlephia, Inc. v. United States

359 F.2d 437, 175 Ct. Cl. 169, 17 A.F.T.R.2d (RIA) 809, 1966 U.S. Ct. Cl. LEXIS 31
CourtUnited States Court of Claims
DecidedApril 15, 1966
DocketNo. 305-61; No. 70-63
StatusPublished
Cited by20 cases

This text of 359 F.2d 437 (John Wanamaker Philadlephia, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Wanamaker Philadlephia, Inc. v. United States, 359 F.2d 437, 175 Ct. Cl. 169, 17 A.F.T.R.2d (RIA) 809, 1966 U.S. Ct. Cl. LEXIS 31 (cc 1966).

Opinion

Laramore, Judge,

delivered the opinion of the court:

John Wanamaker Philadelphia, Inc., is a Pennsylvania corporation which operates retail department stores. At the time of the events in issue, it operated a store in Philadelphia, Pennsylvania, and a wholly-owned subsidiary, John Wanamaker New York, Inc., operated a store in New York City. In 1956, the New York subsidiary was merged into the parent company. Two petitions stating substantially identical facts and raising common questions of law have been filed and consolidated. In the interest of simplicity, we shall refer to one plaintiff only and limit discussion to the facts of the Philadelphia store.

As a department store, plaintiff used an accrual method of accounting and a fiscal year ending January 31 for Federal income tax purposes.1 For the fiscal year ending January 31, 1951, plaintiff elected to value its inventory by the Last In— [173]*173First Out (lieo) method.2 Int. Rev. Code of 1939, § 22(d) ; 26 U.S.C. § 22(d) (1952 Ed.). As a condition of a lieo election, the statute required that the opening inventory of the election year and the closing inventory of the preceding year be valued at cost. §§ 22(d) (1) (A), 22(d) (4). Thisre-quired an adjustment to the fiscal 1950 closing inventory because plaintiff had for many years valued its inventories by the retail method, lower of cost or market, less a reserve for future markdowns.3 To get the closing inventory of fiscal 1950 up to cost, plaintiff had to increase inventory value by the amount that cost exceeded lower of cost or market, and in addition, plaintiff had to eliminate the reserve for future markdowns. This had the effect of reducing cost of goods sold and thereby increasing taxable income because the Commissioner of Internal Revenue would not allow plaintiff to similarly adjust the opening inventory.4

Plaintiff claims a refund of the tax paid for the fiscal year 1950 on the amount of taxable income occasioned by the elimination of the reserve for future markdowns. Both of its arguments are predicated on section 22(d) (3) which provides that a change to lieo shall accord “with such regula[174]*174tions as the Commissioner * * * may prescribe as necessary in order that the use of such method may clearly reflect income.” (Emphasis added.) Plaintiff asserts that “clear reflection of income” is the governing standard we must apply in reviewing the determination of the Commissioner of Internal Bevenue. The first argument is that the reserve for future markdowns is illegal under sections 29.22 (c)-2 and (c)-8 of Treasury Begulations 111, and therefore must be eliminated from the opening inventory of fiscal 1950, as well as the closing inventory, to clearly reflect income. If the reserve is eliminated from fiscal 1950 altogether, plaintiff is entitled to a refund.5 The second argument is that the reserve was included in taxable income and exposed to tax in the fiscal years 1916 through 1920 as a result of a decision by the Board of Tax Appeals. Plaintiff says it violates the clear reflection of income standard to expose an item to double taxation.

In opposition, defendant contends that the plaintiff had no right to change to lieo without first obtaining the Commissioner’s consent, and that the ’Commissioner properly made no adjustment to the opening inventory. Begarding plaintiff’s double taxation argument, defendant contends that there is no double tax effect because the reserve in dispute before the Board of Tax Appeals was not the same as the one that is deducted from fiscal 1950 opening inventory.

I. Plaintiff's LIFO Election

Plaintiff must establish that it had an absolute right to elect lieo to circumvent defendant’s argument that the Commissioner can exact a quid pro quo for a change to ufo. As a general rule, taxpayers cannot unilaterally change from one accounting method to another. Int. Bev. Code of 1939, § 41. The Code gives the Commissioner broad discretion to initiate changes, and, by implication, to police taxpayer-initiated changes. In his regulations, the Commissioner has amplified the statutory rule by providing that a taxpayer cannot change to a new method without permission, and that “[permission * * * will not be granted unless the taxpayer and the Com[175]*175missioner agree to the terms and conditions under which the change will be effected.” Treas. Reg. 111, § 29.41-2. The standard by which the Commissioner’s discretion is guided is “clear reflection of income.” Defendant refers us to a number of cases which uphold this regulation and allow the Commissioner to exact a quid fro quo. American Can Co. v. Commissioner, 317 F. 2d 604 (2d Cir. 1963), cert. denied, 375 U.S. 993 (1964); Wright Contracting Co. v. Commissioner, 316 F. 2d 249 (5th Cir. 1963); Broida, Stone & Thomas, Inc. v. United States, 309 F. 2d 486 (4th Cir. 1962); Commissioner v. O. Liquidating Corp., 292 F. 2d 225 (3d Cir.), cert. denied, 368 U.S. 898 (1961). To this list we can add our recently decided case, Hackensack Water Co. v. United States, 173 Ct. Cl. 606, 352 F. 2d 807 (1965).

The courts have enforced the Commissioner’s permission requirement to enable him to protect the fisc most effectively. Any change of accounting method will almost certainly distort net income in the year of change. Although distortion can work either for or against the government, it is a fair assumption that most taxpayer-initiated changes will distort income in the taxpayer’s favor, absent some mechanism of control. As a matter of policy, the courts have decided that this area of the revenue laws can be best administered by the Commissioner. The mechanism the Commissioner has adopted is the consent requirement. Thus, he can prevent distortion by withholding his consent until the taxpayer agrees to adjustments that will “prevent the duplication of items of expense or the omission of income with respect to the year of transition * * Hackensack Water Co., 173 Ct. Cl., at 613, 352 F. 2d, at 810. This rule is now codified in section 446(e) of the Internal Revenue Code of 1954.

We are of the opinion that plaintiff was not subject to the requirement of first obtaining the Commissioner’s consent with whatever conditions he might impose. We find in Code section 22 (d) (1) an absolute right to elect the llfo method of accounting. The provision states that “[a] taxpayer may use [llfo].” (Emphasis added.) Throughout the applicable regulations, mo is referred to as an “elective method.” Section 29.22(d)-! provides: “This elective inventory meth-[176]*176ocl * * * may be adopted by the taxpayer as of the close of any taxable year.” Section 29.22(d)-2 requires that the taxpayer must satisfy certain objective conditions precedent. Section 29.22 (d) -3 specifies the proper form number for election which is different from the form number used for requesting consent. In addition, this provision empowers the Commissioner to condition approval upon the taxpayer’s agreement to use lieo with respect to goods “other than those specified in the taxpayer’s statement of election.” That is, of course, a comparatively narrow discretion and far short of the broad power to enforce a condition found in section 29.41-2.

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359 F.2d 437, 175 Ct. Cl. 169, 17 A.F.T.R.2d (RIA) 809, 1966 U.S. Ct. Cl. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-wanamaker-philadlephia-inc-v-united-states-cc-1966.