S. Rossin & Sons, Inc. v. Commissioner

40 B.T.A. 1274, 1939 BTA LEXIS 730

• Court: United States Board of Tax Appeals
• Decided: December 26, 1939
• Docket: Docket Nos. 92942, 92943.
• Status: Published

Opinions

OPINION.

Opper:

It may be conceded that the Commissioner’s failure to object to the corporation’s evident change of its treatment of accounts receivable was tantamount to the approval required by the statute¹ and regulations.² Ganahl Lumber Co., 21 B. T. A. 118. Since, however, the Commissioner was not asked for an express approval, and did not give it, there never has been any specific ruling imposing as a condition that the existing reserve be taken up in income simultaneously. Cf. I. T. 2348, C. B. VI-1, p. 67. Although in 1928 the corporation purported to change its method of dealing with debts from a prospective standpoint, and substituted for periodic additions to its reserve a system of deductions for individual bad debts, it does not appear that at any time prior to the present year it changed its method of treating the then-existing reserve. The corporation continued to have accounts receivable which might become bad, even though they did not exist in 1927. A reserve for bad debts is not limited to accounts existing at the end of a given year.³ Thus, as long as tlie reserve was carried as an open item and not written off, as it was during all the time until the year before us, it remained theoretically possible for outstanding bad debts to be charged against that account rather than being specifically deducted.⁴ That course was not precluded by any express ruling on the part of the Commissioner in this instance, although it may be a usual and justifiable practice for him to do so. See I. T. 2848, supra. In fact, in his treatment of the present year he has credited the taxpayer with a debit to this reserve on account of debts then outstanding which were considered to be uncollectible.

Such treatment, moreover, although perhaps unusual, is nowhere expressly prohibited. Such cases as Arthur J. Marks, 9 B. T. A. 1047, and Rogers Peet Co., 21 B. T. A. 577, are not to the contrary. They hold merely that in a given year a taxpayer may not obtain the benefit of both methods by deducting from gross income additions to a reserve as well as charge-offs for specific bad debts. Even this result has been said to yield to the Commissioner’s approval. Manistique Lumber & Supply Co., 29 B. T. A. 26, 29;5 and cf. Arthur J. Marks, supra. And it would certainly be anomalous to argue that the Commissioner’s consent to a change of method could be implied from his failure to object to a course of action actually adopted by a taxpayer, and in the same breath that the implied consent does not include a permission to retain the existing reserve, although that is equally a part of the taxpayer’s actual conduct. As we have said, we need not speculate upon the conditions which the respondent might, is some other case, have attached to an express approval. Here that was neither asked nor given.

Since the method of treatment so described was not inherently illegal or impossible, and was not forbidden by any express condition or ruling communicated by the respondent to the corporation, the petitioners’ contention narrows to the position that the corporation’s method of accounting was incorrect and did not properly reflect income, and that from this result the petitioners can achieve an advantage. But it is the prerogative of the Commissioner to determine that a taxpayer’s method did not properly reflect its income, Revenue Act of 1936, section 41,⁶ and this he has never done.

The result is that taking up the reserve into income in the present year was the direct consequence of the corporation’s method of treatment. Until it was so treated the item was in suspense. Such an account becomes taxable income when converted from an anomalous item into an income fund, the use of which the taxpayer acquires as a result of its own act. Charleston & Western Carolina Railway Co. v. Burnet, 50 Fed. (2d) 342 (App. D. C.), affirming 17 B. T. A. 569; G. M. Standifer Construction Corporation, 30 B. T. A. 184; Creamette Co., 37 B. T. A. 216, 221. Under such circumstances we see no reason why the treatment which the corporate petitioner itself elected to apply should be disregarded by us to reach a result which would permit a substantial amount of income to escape tax completely.

Reviewed by the Board.

Decision will be entered for the Respondent.

Leech and Tyson dissent.

1 Revenue Act of 1936.—

SEC. 23. DEDUCTIONS FROM GROSS INCOME.

In computing net income there shall be allowed as deductions :

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(t) Bad Debts. — Debts ascertained to be worthless and charged off within the taxable year (or, in the discretion of the Commissioner, a reasonable addition to a reserve for bad debts) ; * * *

2 Regulations 74, art. 191. Athol Manufacturing Co., 22 B. T. A.105, 110; affd., 54 Fed. (2d) 230.

3 “While this [the reserve] method produces an equitable distribution of bad debt losses among periods, it may result in a very inaccurate statement of the net value of the accounts receivable in the balance sheet. For instance, with yearly closings, the reserve set up at the end of one year is eapeeted to he adequate to absorb all losses discovered during the succeeding year. But some of these losses may result from sales of the succeeding year * * [Emphasis added.] 1 Finney Principles of Accounting, ch. 30, p. 6.

4 “Methods of Estimating Bad Debts. — There are two principal methods of estimating uncollectibles at the close of the period. First, all customers’ balances may be appraised, one by one, and the accounts deemed bad or very doubtful written off entirely or scaled down. The second method consists in estimating a blanket allowance based largely upon past experience. Under this method individual accounts are later charged against this allowance as their worthlessness is demonstrated. A combination of these two methods may also he employed." [Emphasis added.] W. A. Paton, Accountants’ Handbook, 2d Ed., p. 249.

5 “Under the law and the authorities, petitioner had the option to adopt and use either one of these methods, but it did not have the right, without the approval of the Commissioner, to use both, according to its caprice or its interest. * * *”

6 SEC. 41. GENERAL RULE.

The net income shall be computed upon the basis of the taxpayer's annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * *