OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW.
LEYET, District Judge.
This opinion involves issues in an action by United States Steel Corporation (“U. S. Steel”) against the United States, pursuant to 28 U.S.C. § 1346(a) (1), for refund of certain 1950 income and excess profits tax payments, together with interest. By agreement of the parties, the present issues were tried by the court without jury. (2-4)1
PRIOR PROCEEDINGS IN THIS LITIGATION
A. The Complaint
In a complaint dated September 30, 1965 and filed October 11, 1965, U. S. Steel2 brought suit under 28 U.S.C. § 1346(a) (1) to recover portions of federal income tax paid for the year 1950. Plaintiff claimed that certain 1950 federal income and excess profits tax payments were erroneously and illegally assessed and collected.
In general, U. S. Steel maintained in the complaint:
1. That it was entitled to additional depletion deductions for the year 1950.
2. That certain alleged abnormalities occurring during 1947, 1948 and 1949 should have been considered by defendant in the computation of the “average base period net income” figure for the relevant base period years 1947-1949, which figure was used to determine the extent to which U. S. Steel was subject to income and excess profits taxes for the year 1950. The abnormalities alleged were (a) low quality of coking coal and iron ore, resulting in loss of production; (b) abnormal cost-price relationships, resulting in the depression of plaintiff’s business and earnings; (c) numerous and protracted strikes, resulting in the interruption and diminution of plaintiff’s normal production, output and operation; and (d) other abnormalities referred to at the time plaintiff’s 1950 consolidated federal income and excess profits tax return was filed.
3. That, if it be determined that plaintiff is entitled to no relief or only certain partial relief under 2 above, plaintiff should be entitled to press an alternative claim for disallowance of deductions for certain “strike expenses.”
[993]
B. Rulings on Motions for Summary Judgment
As to plaintiff’s claim for additional depletion deductions, both parties moved for summary judgment. On May 19, 1967, this court denied plaintiff’s motion and granted defendant’s motion, holding in substance that, for the purpose of calculating the deduction for percentage depletion under 26 U.S.C. §§ 23 (m) and 114(b) (4) of the Internal Revenue Code of 1939, plaintiff, as lessee, could not include payments of Minnesota ad valorem and royalty taxes in its gross income from mining. 270 F.Supp. 253 (S.D.N.Y.1967).
As to plaintiff’s claim that “low quality of coking coal and iron ore, resulting in loss of production” was a qualifying abnormality for excess profits tax purposes within the meaning of 26 U.S.C. Excess Profits Taxes § 442 (1939 Code), the defendant moved for summary judgment. The motion was granted on July 1, 1969 and plaintiff’s subsequent motion for reargument was denied on October 2, 1969. In substance, this court held as a matter of law that war-induced shortages of men and materials and delays by suppliers and subcontractors during the period of 1941 to 1948 may not constitute the basis for relief under § 442, because effects directly attributable to United States government policies during World War II, including post-war competitive pressures engendered by wartime conditions, are not qualifying abnormalities within the meaning of the statute. 305 F.Supp. 497 (S.D.N.Y.1969), 305 F.Supp. 516 (S.D. N.Y.1969).
As to plaintiff’s claim that “abnormal cost-price relationships, resulting in the depression of Plaintiff’s business and earnings” constituted a qualifying abnormality within the meaning of § 442, the defendant moved for summary judgment. The motion was granted on July 1, 1969 and plaintiff’s subsequent motion for reargument was denied on October 2, 1969. This court held in substance that the factors submitted by plaintiff were not shown to consist of more than the valid exercise of governmental regulatory authority or competitive pressures which businessmen must reasonably expect in the course of their operations. 305 F.Supp. 508 (S.D.N.Y. 1969), 305 F.Supp. 516 (S.D.N.Y.1969).
C. Issues Remaining for Trial
The present proceedings arise primarily from U. S. Steel’s allegations in the complaint that “numerous and protracted strikes, resulting in the interruption and diminution of Plaintiff’s normal production, output and operation; and other abnormalities” qualify as “unusual” occurrences under § 442. U. S. Steel now contends that the allegedly “unusual” events — a 1948 explosion, two 1948 strikes by the United Mine Workers and a 1949 strike by the United Steel Workers — significantly affected plaintiff’s taxable income within the meaning of § 442(a) during the years 1948 and 1949, which years were designated as part of the base period pursuant to the Excess Profits Tax Act of 1950, 26 U.S.C. Excess Profits Taxes § 430 et seq. As a result of the alleged effects of these events on its taxable income in 1948 and 1949, plaintiff suggests, the defendant should have computed U. S. Steel’s “average base period net income” for the relevant base period years 1947-1949 in accordance with relief provisions contained in § 442, so as to decrease the amount of tax owed for 1950 by the taxpayer.
If it develops that plaintiff is not entitled to any application of § 442 for 1948 and 1949 or that it is entitled to § 442 application for only one of the years (i. e., 1948 or 1949), plaintiff presents an alternative claim under 26 U.S.C. Excess Profits Taxes § 433(b) (9) for disallowance of deductions for certain “strike expenses” incurred in the year 1949. If U. S. Steel should then be eligible for application of § 442 and § 433(b) (9) for 1949, plaintiff may opt for application of whichever section would afford greater relief to the taxpayer. (Stipulation, May 26, 1970)
[994] PLAINTIFF’S POST-TRIAL CONTENTIONS
The plaintiff’s claims after trial may be set forth generally as follows:
1. The two 1948 United Mine Workers’ strikes which shut down U. S. Steel’s coal-producing facilities and resulted in interruptions in production at plaintiff’s steel-making facilities were “unusual” occurrences within the meaning of § 442;
2. The 1948 explosion at plaintiff’s South Works in Chicago, Illinois was an “unusual” occurrence within the meaning of § 442;
3. U. S. Steel’s 1948 income before federal income taxes was reduced (as a result of “unusual” occurrences within the meaning of § 442) to a legally significant extent below what such income otherwise would have been; consequently plaintiff is entitled to application of § 442 for the year 1948.
4. The 1949 United Steel Workers’ strike which shut down plaintiff’s steel-making facilities was an “unusual” occurrence within the meaning of § 442;
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW.
LEYET, District Judge.
This opinion involves issues in an action by United States Steel Corporation (“U. S. Steel”) against the United States, pursuant to 28 U.S.C. § 1346(a) (1), for refund of certain 1950 income and excess profits tax payments, together with interest. By agreement of the parties, the present issues were tried by the court without jury. (2-4)1
PRIOR PROCEEDINGS IN THIS LITIGATION
A. The Complaint
In a complaint dated September 30, 1965 and filed October 11, 1965, U. S. Steel2 brought suit under 28 U.S.C. § 1346(a) (1) to recover portions of federal income tax paid for the year 1950. Plaintiff claimed that certain 1950 federal income and excess profits tax payments were erroneously and illegally assessed and collected.
In general, U. S. Steel maintained in the complaint:
1. That it was entitled to additional depletion deductions for the year 1950.
2. That certain alleged abnormalities occurring during 1947, 1948 and 1949 should have been considered by defendant in the computation of the “average base period net income” figure for the relevant base period years 1947-1949, which figure was used to determine the extent to which U. S. Steel was subject to income and excess profits taxes for the year 1950. The abnormalities alleged were (a) low quality of coking coal and iron ore, resulting in loss of production; (b) abnormal cost-price relationships, resulting in the depression of plaintiff’s business and earnings; (c) numerous and protracted strikes, resulting in the interruption and diminution of plaintiff’s normal production, output and operation; and (d) other abnormalities referred to at the time plaintiff’s 1950 consolidated federal income and excess profits tax return was filed.
3. That, if it be determined that plaintiff is entitled to no relief or only certain partial relief under 2 above, plaintiff should be entitled to press an alternative claim for disallowance of deductions for certain “strike expenses.”
[993]
B. Rulings on Motions for Summary Judgment
As to plaintiff’s claim for additional depletion deductions, both parties moved for summary judgment. On May 19, 1967, this court denied plaintiff’s motion and granted defendant’s motion, holding in substance that, for the purpose of calculating the deduction for percentage depletion under 26 U.S.C. §§ 23 (m) and 114(b) (4) of the Internal Revenue Code of 1939, plaintiff, as lessee, could not include payments of Minnesota ad valorem and royalty taxes in its gross income from mining. 270 F.Supp. 253 (S.D.N.Y.1967).
As to plaintiff’s claim that “low quality of coking coal and iron ore, resulting in loss of production” was a qualifying abnormality for excess profits tax purposes within the meaning of 26 U.S.C. Excess Profits Taxes § 442 (1939 Code), the defendant moved for summary judgment. The motion was granted on July 1, 1969 and plaintiff’s subsequent motion for reargument was denied on October 2, 1969. In substance, this court held as a matter of law that war-induced shortages of men and materials and delays by suppliers and subcontractors during the period of 1941 to 1948 may not constitute the basis for relief under § 442, because effects directly attributable to United States government policies during World War II, including post-war competitive pressures engendered by wartime conditions, are not qualifying abnormalities within the meaning of the statute. 305 F.Supp. 497 (S.D.N.Y.1969), 305 F.Supp. 516 (S.D. N.Y.1969).
As to plaintiff’s claim that “abnormal cost-price relationships, resulting in the depression of Plaintiff’s business and earnings” constituted a qualifying abnormality within the meaning of § 442, the defendant moved for summary judgment. The motion was granted on July 1, 1969 and plaintiff’s subsequent motion for reargument was denied on October 2, 1969. This court held in substance that the factors submitted by plaintiff were not shown to consist of more than the valid exercise of governmental regulatory authority or competitive pressures which businessmen must reasonably expect in the course of their operations. 305 F.Supp. 508 (S.D.N.Y. 1969), 305 F.Supp. 516 (S.D.N.Y.1969).
C. Issues Remaining for Trial
The present proceedings arise primarily from U. S. Steel’s allegations in the complaint that “numerous and protracted strikes, resulting in the interruption and diminution of Plaintiff’s normal production, output and operation; and other abnormalities” qualify as “unusual” occurrences under § 442. U. S. Steel now contends that the allegedly “unusual” events — a 1948 explosion, two 1948 strikes by the United Mine Workers and a 1949 strike by the United Steel Workers — significantly affected plaintiff’s taxable income within the meaning of § 442(a) during the years 1948 and 1949, which years were designated as part of the base period pursuant to the Excess Profits Tax Act of 1950, 26 U.S.C. Excess Profits Taxes § 430 et seq. As a result of the alleged effects of these events on its taxable income in 1948 and 1949, plaintiff suggests, the defendant should have computed U. S. Steel’s “average base period net income” for the relevant base period years 1947-1949 in accordance with relief provisions contained in § 442, so as to decrease the amount of tax owed for 1950 by the taxpayer.
If it develops that plaintiff is not entitled to any application of § 442 for 1948 and 1949 or that it is entitled to § 442 application for only one of the years (i. e., 1948 or 1949), plaintiff presents an alternative claim under 26 U.S.C. Excess Profits Taxes § 433(b) (9) for disallowance of deductions for certain “strike expenses” incurred in the year 1949. If U. S. Steel should then be eligible for application of § 442 and § 433(b) (9) for 1949, plaintiff may opt for application of whichever section would afford greater relief to the taxpayer. (Stipulation, May 26, 1970)
[994] PLAINTIFF’S POST-TRIAL CONTENTIONS
The plaintiff’s claims after trial may be set forth generally as follows:
1. The two 1948 United Mine Workers’ strikes which shut down U. S. Steel’s coal-producing facilities and resulted in interruptions in production at plaintiff’s steel-making facilities were “unusual” occurrences within the meaning of § 442;
2. The 1948 explosion at plaintiff’s South Works in Chicago, Illinois was an “unusual” occurrence within the meaning of § 442;
3. U. S. Steel’s 1948 income before federal income taxes was reduced (as a result of “unusual” occurrences within the meaning of § 442) to a legally significant extent below what such income otherwise would have been; consequently plaintiff is entitled to application of § 442 for the year 1948.
4. The 1949 United Steel Workers’ strike which shut down plaintiff’s steel-making facilities was an “unusual” occurrence within the meaning of § 442;
5. U. S. Steel’s 1949 income before federal income taxes was reduced (as a result of the “unusual” occurrence) to a legally significant extent below what such income otherwise would have been; consequently, plaintiff is entitled to application of § 442 for the year 1949.
6. If plaintiff is not entitled to any § 442 application for 1948 and 1949 or if plaintiff is entitled to § 442 application for only one of the years (i. e., 1948 or 1949), plaintiff presses an alternative claim under § 433(b) (9) for disallowance of deductions for certain 1949 “strike expenses;” if plaintiff qualifies for application of both § 442 and § 433 (b) (9) for 1949, it seeks relief under whichever section is more favorable.
DEFENDANT’S POST-TRIAL CONTENTIONS
The defendant’s positions in response to plaintiff’s contentions may be set forth generally as follows:
1. The 1948 United Mine Workers’ strikes were not “unusual” events under § 442;
2. The 1948 explosion at U. S. Steel’s South Works was concededly an “unusual” event; but
3. Plaintiff’s 1948 income before federal income taxes was not reduced to a legally significant extent as a result of the 1948 explosion, the only “unusual” occurrence which affected U. S. Steel’s 1948 income.
Consequently, plaintiff is not entitled to application of § 442 for the year 1948.
4. The 1949 United Steel Workers’ strike was concededly an “unusual” event; but
5. U. S. Steel’s 1949 income before federal income taxes was not reduced to a legally significant extent as a result of the 1949 strike.
Consequently, plaintiff is not entitled to application of § 442 for the year 1949.
6. Plaintiff is not entitled to any relief for its alternative claim under § 433(b) (9).
ISSUES
The following issues are before the court for determination:
1. Were the two 1948 strikes against plaintiff by the United Mine Workers qualifying abnormalities within the meaning of 26 U.S.C. Excess Profits Taxes § 442(a) (1939 Code)?
2. If the two 1948 strikes were qualifying abnormalities, has U. S. Steel proved by a fair preponderance of the credible evidence that its 1948 income before federal income taxes was reduced to a legally significant extent (below what such income otherwise would have been) as a result of 1948 qualifying abnormalities, i. e., the 1948 explosion at plaintiff’s South Works in Chicago, Illinois, which explosion is conceded by defendant to have been a qualifying abnormality, and the two 1948 strikes (if it has been determined that the strikes were qualifying abnormalities) ?
[995]*9953. If the two 1948 strikes were not qualifying abnormalities, has plaintiff proved by a fair preponderance of the credible evidence that its 1948 income before federal income taxes was reduced to a legally significant extent as a result of the 1948 explosion (which would then be the only qualifying abnormality for 1948)?
If U. S. Steel has sustained its burden of proof as to the issues mentioned above, plaintiff is entitled to have its net income for the base period year 1948 computed in accordance with § 442 for excess profits tax purposes.
4. Has plaintiff proved by a fair preponderance of the credible evidence that its 1949 income before federal income taxes was reduced to a legally significant extent as a result of the 1949 strike against plaintiff' by the United Steel Workers (which strike is conceded by defendant to have been a qualifying abnormality) ?
If U. S. Steel has sustained its burden of proof as to the fourth issue, plaintiff is entitled to have its net income for the base period year 1949 computed in accordance with § 442 for excess profits tax purposes.
5. If plaintiff is not entitled to any § 442 application for 1948 and 1949 or if plaintiff is entitled to § 442 application for only one of the years (i. e., 1948 or 1949), has plaintiff proved by a fair preponderance of the credible evidence that it is entitled to relief pursuant to its alternative claim under 28 U.S.C. Excess Profits Taxes § 433(b) (9) for disallowance of deductions for 1949 “strike expenses”? If so, is plaintiff entitled to greater relief for 1949 under § 433(b) (9) or § 442?
I. PLAINTIFF’S CLAIMS UNDER SECTION 442 RELEVANT STATUTE
26 U.S.C. Excess Profits Taxes § 442 (a) reads in pertinent part:
"§ 442. Average base period net income — abnormalities during base period
“(a) In general. If a taxpayer * * establishes that, for any taxable year within, or beginning or ending within, its base period:
“(1) normal production, output, or operation was interrupted or diminished because of the occurrence, either immediately prior to, or during such taxable year, of events unusual and peculiar in the experience of such taxpayer * * * [emphasis added] the taxpayer’s average base period net income [shall be] determined under this section * *
THE APPLICABLE STANDARD FOR DETERMINING WHETHER THE 1948 STRIKES WERE QUALIFYING ABNORMALITIES WITHIN THE MEANING OF SECTION 442
The Excess Profits Tax Act of 1950, 26 U.S.C. Excess Profits Taxes § 430 et seq., which is designed to tax at high rates unusually high profits earned during the Korean War, imposes a tax on profits in excess of an amount deemed to represent the taxpayer’s normal profits. Jarecki v. G. D. Searle & Co., 367 U.S. 303, 304, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961).
The object of relief provisions under both the Korean War Act and its predecessor, the World War II Excess Profits Tax Act of 1940, 26 U.S.C. Excess Profits Taxes § 710 et seq., was to ensure that the finally derived “average base period net income” should reflect what the taxpayer would have earned in the excess profits tax year (i. e., 1950) but for the war which may have fortuitously increased profits.
In furtherance of this objective, actual base period net income which is unrepresentative for a statutorily-defined reason should be replaced by a constructive income. Oxford Paper Company v. Commissioner of Internal Revenue, 302 F.2d 674, 681 (2nd Cir. 1962).
In order to warrant general relief under the statute, the taxpayer must first establish at least one qualifying abnormality for each one of the relevant base [996] period years for which it seeks application of § 442. If more than one qualifying abnormality has been established for a particular year, the properly established effects of each of the qualifying abnormalities on the taxpayer’s income for that year may then be aggregated for purposes of determining whether the taxpayer has made the required showing of “significant and not trivial” diminution in its normal productive process for that year due to any qualifying abnormalities. See Reg. 130 (1939 Code), § 40.-442-2(a) (2).
Since the parties agree that the 1948 explosion and the 1949 strike by the United Steel Workers were qualifying abnormalities under § 442, the court need consider only the extent of the quantitative effects of those events on U. S. Steel’s income for each of the years involved. With respect to the 1948 strikes by the United Mine Workers, the parties disagree on the initial issue of unusualness.3 The court must therefore determine whether the 1948 strikes were in the first instance qualifying abnormalities within the meaning of § 442(a) (1).
The regulations advise that an event during a base period year may be “unusual” in the “experience of the taxpayer” if occurrence of the event “is not ordinarily encountered in the taxpayer’s business operations.” If unusualness is established, the taxpayer must also establish that any “unusual” occurrences in a base period year significantly interrupted “normal production, output, or operation,” defined as “the level of production, output, or operation customary for the taxpayer, determined on the basis of the actual experience of the taxpayer up to the time” the “unusual” event occurred. Reg. 130, § 40.442-2(a) (1) (2) (3).4
There can be no dispute that a strike is an event within the purview of § 442 (a) (1). Reg. 130, § 40.442-2(a) (3) (“* * * events include floods, fires, explosions, strikes, and other exceptional and uncommon circumstances hindering production, output or operation.”); Sen. Rep. No. 2679, 81st Cong., 2d Sess., dated December 18, 1950, as quoted in Internal Revenue Cumulative Bulletin 1951-1, 252 (“ * * * [the World War II] law provided relief * * * because of a physical interruption to production, such as a fire, strike, or flood, * * Your committee’s bill provides relief in these same areas.”).
In discussing a framework for analysis of the factual record presented at trial, plaintiff argues (1) that strikes by the United Mine Workers (which affect U. S. Steel’s coal-producing facilities and may also result in interruption of production at plaintiff’s steel-making facilities) and strikes by the United Steel Workers against plaintiff’s steel-making facilities should be considered as separate and distinct types of events under § 442; and (2) that a strike or strikes during a taxpayer’s base period might be deemed “unusual” under § 442 if the strikes in question had a substantially greater impact on production and shipments than other strikes in the years before the base period.
After a careful study of the statute, regulations, legislative history and prior judicial determinations, I believe plaintiff's first proposition is unsound, and its second generally sound.
[997] A. A Strike As An Event
According to the appropriate regulation, “ * * * events include * * * strikes, and other exceptional and uncommon circumstances hindering production, output, or operation.” (Emphasis added) Reg. 130, § 40.442-2(a) (3). A strike is thus viewed as an occurrence which hinders production, output or operation.
Similarly, the Senate Committee on Finance, referring to a strike as an event, focused on a strike as a potential interruption of production: “ * * * [the law provides relief] when * * * the income * * * was substantially abnormal because of a physical interruption to production, such as a * * * strike * * (Emphasis added) Sen.Rep. No. 2679, 81st Cong., 2d Sess., as quoted in I.R.C.B. 1951-1, 252.
In essence, the type of event contemplated is a strike which interrupts production. In evaluating a strike as an event, the court must consider it primarily in the sense of a physical interruption of production brought about by labor-management difficulties. Another court, considering whether a strike during a base period year was an “unusual” event in the taxpayer’s experience, referred to the taxpayer’s overall “labor history” and “labor picture.” See New York Shipbuilding Corporation v. United States, 237 F.Supp. 995, 1001 (D.N.J. 1965), aff’d per curiam, 362 F.2d 550 (3rd Cir. 1966).
U. S. Steel has been engaged principally “in the integrated business of making and selling iron and steel products” since 1901. (Stipulation, June 10,1970) Plaintiff’s production and shipment of iron and steel products might be subject to interruption because of a strike either by the United Mine Workers or the United Steel Workers. It is of course possible that a strike by the United Mine Workers against plaintiff’s coal-producing facilities might not affect plaintiff’s production of iron and steel products, for coal production is but one step in the ultimate production and shipment of iron and steel products. However, insofar as the record may indicate that a coal strike and resultant unavailability of coke did interrupt iron and steel production at plaintiff’s steel-making facilities, it seems inappropriate to segregate the effects of a coal strike on such production in a given year from the effects of a steel strike on such production in the same year.
The court believes that the proper analytical yardstick (for determining whether the two 1948 strikes by the United Mine Workers were “unusual” under § 442) is physical interruption of U. S. Steel’s production and shipments of iron and steel products due to strikes against plaintiff’s production facilities, whether by the United Mine Workers, the United Steel Workers, or another union representing other employees of U. S. Steel.
B. Comparing the Effects on Production and Shipments of the 1948 Strikes and Strikes in Other Relevant Years
An event may be declared “unusual” within the meaning of § 442 if its occurrence “is not ordinarily encountered in the taxpayer’s business operations.” Reg. 130, § 40.442-2(a) (3).
U. S. Steel, while acknowledging that strikes or work stoppages against its production facilities by the United Mine Workers and the United Steel Workers had occurred in the years before 1948, contends that the two 1948 strikes by the United Mine Workers were “unusual” events because of their impact upon the production of iron and steel. (Plaintiff’s First Reply Memorandum Re 1948 Coal Strikes, April 9, 1970, p. 4)
There is authority for the general principle that an event need not be unique for it to be considered “unusual” under § 442.
In Oxford Paper Co., 33 T.C. 943 (1960), rev’d on other grounds, 302 F.2d 674 (2nd Cir. 1962), the Tax Court decided that a drought in the base period years 1947 and 1948 was an “unusual” event under § 442. After weighing such factors as average rainfall in the years [998]*9981894-1945 and average monthly river flow in the years 1912-1946, the Tax Court found that the 1947-1948 drought “was of greater intensity and of longer duration than any other that Oxford has experienced during its considerable history,” and held that the drought in question was “so severe” as to constitute a qualifying abnormality within the meaning of § 442(a) (1). See 33 T.C. at 953, 959. See also the reference in New York Shipbuilding, supra at 998, to the Tax Court’s findings in Oxford Paper (“There had been other droughts, but none so severe.”).
Since § 442(a) (1) requires that events during a year or years within the base period be “unusual” in the experience of the taxpayer, it seems appropriate to compare the event or events (proposed as “unusual” occurrences in the base period) with the same type of events in the taxpayer’s experience before the onset of the base period. See Oxford Paper Company v. Commissioner, supra, 302 F.2d at 678; New York Shipbuilding, supra, 237 F.Supp. at 1001. Therefore, in a determination of whether the 1948 strikes were “unusual” events, the court believes that the occurrence of strikes during the base period years 1946 and 1947 should not be dispositive. Still another reason for excluding consideration of any 1946 strikes on the issue of unusualness is the procedure set forth in §§ 435(d) (2) and 442(b) (2) (A) of the Korean War Act. Although the Act provided a base period consisting of the years 1946-1949 (§ 435 (b)), a taxpayer is entitled under § 435 (d) (2) and § 442(b)- (2) (A) to eliminate automatically the least profitable year during the period, irrespective of whether any abnormality allegedly within the scope of § 442(a) had occurred. See Oxford Paper Company v. Commissioner, supra, 302 F.2d at 676. U. S. Steel chose to eliminate the year 1946 (Complaint, dated September 30, 1965, p. 3).
Plaintiff alleges that the 1948 coal strikes reduced its 1948 income by causing certain increased costs as well as lost income from production and shipment of iron and steel products. It is true that certain increased costs may be considered (in addition to income losses in production and shipments) for purposes of a determination whether a qualifying abnormality or qualifying abnormalities interrupted the taxpayer’s normal productive process in a relevant base period year to the extent required, i. e., significant and not trivial. However, a qualifying abnormality or qualifying abnormalities must first be established before any increased costs may be considered. It may be noted that plaintiff has not claimed that the 1948 strikes were qualifying abnormalities because of alleged increased costs resulting from the strikes; rather, it maintains that any such costs are relevant only to the determination of whether there was a significant impact on income in 1948 as a result of an occurrence or occurrences already found to be “unusual” within the meaning of § 442(a). (Plaintiff’s Third Reply Memorandum Re 1948 Coal Strikes, April 27, 1970, pp. 4-5)
I conclude that determination of whether the two 1948 strikes were “unusual” under § 442 should be based upon a comparison of losses of shipments of iron and steel products in 1948 (as a result of the two 1948 strikes)5 with losses of shipments of iron and steel products on a yearly basis as a result of strikes against U. S. Steel’s production facilities in years before 1946,