William Q. Boyce, Individually and as of the Will and Estate of Ida Mae Boyce, Deceased v. The United States

405 F.2d 526, 186 Ct. Cl. 420, 23 A.F.T.R.2d (RIA) 380, 1968 U.S. Ct. Cl. LEXIS 4

Opinions

OPINION

PER CURIAM:

This case was referred to Trial Commissioner Mastin G. White with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57 (a). The commissioner has done so in an opinion and report filed on February 8, 1968. Exceptions to the commissioner’s opinion, findings and recommended conclusion of law were filed by plaintiff and the case has been submitted to the court on oral argument of plaintiff, pro se, and of counsel for defendant and the briefs of the parties. The major issue in this case is governed by the “claim of right” doctrine which “is now deeply rooted in the federal tax system.” United States v. Lewis, 340 U.S. 590, 592, 71 S. Ct. 522, 523, 95 L.Ed. 560 (1951). See also Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007 (1953), and James v. United States, 366 U.S. 213, 216, 219, 238, 256-257, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case.

Footnotes

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* Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF COMMISSIONER

WHITE, Commissioner:

The petition in this .case asserts that the plaintiff is seeking refunds of income taxes paid by him pursuant to deficiency assessments for the years 1959, 1961, and 1962.

The petition and the evidence in the record indicate that the deficiencies for 1961 and 1962 were assessed because of a holding by the Internal Revenue Service that hotel expenses for lodging and food which the plaintiff and his wife (who is now deceased) incurred during 1961 and 1962 incident to the diagnosis and treatment of an illness from which the plaintiff was suffering at the time did not constitute deductible expenses, as claimed by the plaintiff and his wife in their joint income tax returns for 1961 and 1962. However, in the brief which the plaintiff filed subsequent to the trial, the plaintiff states that “The claim that Plaintiff’s deductions for hotel food and lodging expenses for the years 1961 and 1962 were improperly disallowed is abandoned.” Accordingly, it is unnecessary to discuss the claims asserted in the petition with respect to the years 1961 and 1962.

The claim relative to the year 1959 presents for determination the primary question of whether the gains realized by the plaintiff in connection with the disposition of two parcels of land were taxable in 1959, as determined by the Internal Revenue Service when it issued the deficiency assessment for 1959, or in 1964, as contended by the plaintiff.

It is my opinion that the gains mentioned in the preceding paragraph were taxable in 1959, and, accordingly, that the Internal Revenue Service did not commit any error with respect to this point.

In 1959, the State of Texas filed two suits in a state court against the plaintiff for the condemnation of two parcels of land situated in Potter County, Texas. One of the parcels contained 9.984 acres, and the other parcel contained 3.75 acres. The State of Texas wished to acquire the property for highway purposes.

In accordance with state court procedure, the suits were heard before commissioners, who, on April 1, 1959, awarded the plaintiff a total of $34,335, of which the sum of $24,960 was attributable to the larger parcel of land and the sum of $9,375 was attributable to the smaller parcel of land. The sum of $24,960 for the larger parcel included a net increase of $18,439.38 above the cost of this parcel to the plaintiff, and the sum of $9,375 for the smaller parcel included a net increase of $8,924.74 above the cost of such parcel to the plaintiff.

The State of Texas was dissatisfied with the awards made by the commissioners, and took appeals to the County Court of Potter County, Texas.

While the appeals were pending before the County Court of Potter County, the State of Texas took possession of the property on June 2, 1959. On the same date, the State, in accordance with the provisions of Article 3268 of the Vernon’s Ann.Revised Civil Statutes of Texas, deposited the amounts of the awards, totaling $34,335, with the clerk of the County Court of Potter County.

The deposit mentioned in the preceding paragraph was subject to the order of the plaintiff; and a few days after the deposit was made by the State of Texas, the funds were withdrawn by the plaintiff.

Judgments on the appeals from the commissioners’ awards were not entered by the County Court of Potter County until December 27, 1963, at which time the awards previously made by the commissioners were affirmed. The time for taking appeals from these judgments to a higher court did not expire until January 1964, and, accordingly, the judgments did not become final until 1964.

The joint income tax return which the plaintiff and his wife filed with the Internal Revenue Service for the year 1959 on the cash basis of accounting did not report any gains derived from the disposition of the two parcels of land previously mentioned. However, when this return was audited by the Internal Revenue Service early in 1964, a deficiency was assessed in the amount of $8,895.33 (consisting of $6,984.31 as principal and $1,911.02 as interest) on the ground that the gains realized by the plaintiff in connection with the disposition of such property were taxable in 1959. The deficiency was paid by the plaintiff on November 10, 1964.

Thereafter, a claim for the refund of the deficiency assessment mentioned in the preceding paragraph was filed by the plaintiff with the Internal Revenue Service on June 24, 1965. The claim was formally disallowed on December 21, 1965.

The present suit was filed by the plaintiff on October 24, 1966.

The plaintiff contended before the Internal Revenue Service, and he asserts here, that the gains realized from the condemnation of the two parcels of land were taxable in 1964, rather than in 1959.

With respect to a taxpayer, such as the plaintiff, who is on the cash basis of accounting, Section 451(a) of the Internal Revenue Code of 1954 provides that income shall be included in the return “for the taxable year in which received by the taxpayer * * In my opinion, the income from the disposition of the two parcels of land condemned by the State of Texas and involved in the present litigation was “received” by the plaintiff in June 1959, when he withdrew the $34,335 from the County Court of Potter County, Texas. The statutory provision (Article 3268 of the Revised Civil Statutes of Texas) under which the State of Texas deposited the money with — and the plaintiff withdrew it from — the County Court of Potter County did not impose upon the plaintiff any restriction whatever concerning the disposition of the funds; and thereafter, while awaiting the decision of the County Court of Potter County on the appeals from the commissioners’ awards, the plaintiff proceeded to utilize portions of such funds from time to time for the building of fences on a farm near Denton, Texas, automobile taxes, telegrams, accounting services, insurance, investments, and other personal purposes.

It is true that, as pointed out by the plaintiff, the withdrawal of the $34,335 from the County Court of Potter County was subject to the declaration in Article 3268 of the Revised Civil Statutes of Texas that “in any case where the award paid the defendant [i. e., the present plaintiff] or appropriated by him exceeds the value of the property as determined by the final judgment, the court shall adjudge the excess to be returned to the plaintiff [i. e., the State of Texas].” It actually happened in the present instance that the County Court of Potter County ultimately affirmed the awards which the commissioners had made to the plaintiff in connection with the condemnation of his lands by the State of Texas. However, up until the time when the court finally acted, there was a possibility that the court might decide that the amount awarded to the plaintiff by the commissioners was excessive, and order the plaintiff to return the excess to the State of Texas. This possibility, in my opinion, was not sufficient to affect the conclusion that the plaintiff “received” the money for his lands in June 1959, when he withdrew the $34,335 from the County Court of Potter County without any restriction as to the disposition of the money.

The problem in this case is very similar to the problem that was involved in North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197 (1932). The background for that litigation really began to develop when a controversy arose between the United States and North American sometime prior to 1916 over the ownership of a certain section of oil-producing land. The Government instituted a suit in a United States District Court against North American to oust the company from the possession of the land; and on February 2, 1916, the Government secured the appointment of a receiver to operate the property and to hold the net income from it. In 1917, the District Court rendered a decision favorable to North American, whereupon the receiver paid over to the company the profits that had been earned from the property in 1916 during the receivership. The Government took an appeal (without supersedeas) to a Circuit Court of Appeals, which affirmed the decree of the District Court. The Government then took a further appeal to the Supreme Court, but this appeal was subsequently dismissed in 1922 by stipulation of the parties.

As an outgrowth of the incidents summarized in the preceding paragraph, a dispute developed between North American and the Internal Revenue Service over the question of the year in which the profits that the receiver turned over to North American were taxable. The Internal Revenue Service contended that such income was taxable in 1917, when the profits were paid over to North American by the receiver, whereas North American contended in the alternative that the profits were taxable either in 1916, when they were earned, or in 1922, when the litigation over the ownership of the income-producing property was finally terminated in North American’s favor. This dispute eventually reached the Supreme Court.

In its decision, the Court held that the profits in question constituted income of North American in 1917, when the company actually received the money, notwithstanding the circumstance that the controversy over the ownership of the income-producing property was still pending before a higher court on appeal and might ultimately have been decided against North American. The Court stated (286 U.S. at page 424, 52 S.Ct. at 615) that:

* * * If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent. * * *

The ruling by the Supreme Court in the North American case is clearly applicable to the present case.

The plaintiff relies upon the case of Patrick McGuirl, Inc. v. Commissioner of Internal Revenue, 74 F.2d 729 (2d Cir. 1935), cert. denied, 295 U.S. 748, 55 S.Ct. 827, 79 L.Ed. 1693 (1935), but the reliance is misplaced. In McGuirl, some realty belonging to the taxpayer was taken by the City of New York under the power of eminent domain on December 1, 1926, but the taxpayer continued to occupy the premises as a month-to-month tenant until October 31, 1927. No award of compensation was made to the taxpayer until May 31, 1928, when the award was tentatively fixed at $132,-000. The taxpayer contested the amount of the tentative award; and by a final decree of a state court dated April 12, 1929, the amount was fixed at $131,998, together with interest from December 1, 1926. The taxpayer received the award, including interest, on July 8, 1929.

A controversy arose between the taxpayer, which kept its books and filed its income tax returns on the accrual basis of accounting, and the Internal Revenue Service over the question of whether the gain from the disposition of the property was taxable in 1926, as contended by the taxpayer, or in 1929, as contended by the Internal Revenue Service. This controversy was finally decided by the Circuit Court of Appeals for the Second Circuit, which upheld the position of the Internal Revenue Service that the gain did not accrue to the taxpayer until 1929. The court said (74 F.2d at page 730) that although the obligation to pay arose in 1926, the taxpayer’s gain could not have been estimated in 1926 with any degree of accuracy because “the amount of award depended upon the course of future events” and there was no assurance that there would be any gain.

Thus, the court held in the McGuirl case that the gain from the condemnation of the property did not accrue to the accrual-basis taxpayer until 1929, the year when the litigation over the amount of the award was finally terminated and the taxpayer received the award. That decision fails to provide support for the contention by the present plaintiff, a cash-basis taxpayer, that the gains from the condemnation of his lands were not “received” by him in 1959, the year when the proceeds from the condemnation of the lands were actually paid over to the plaintiff.

It is my opinion, therefore, that the gains which the plaintiff realized from the condemnation of the two parcels of land previously mentioned were taxable in 1959, as determined by the Internal Revenue Service.

In addition to the primary question discussed in the preceding part of this opinion, the present ease also presents for determination a secondary question as to whether the Internal Revenue Service committed error when the agency refused to grant the plaintiff an extension of time for the replacement of the property that was taken by the State of Texas.

In connection with this subsidiary question, Section 1033 of the Internal Revenue Code of 1954 provides in pertinent part that if property is condemned or is otherwise involuntarily converted into money, and the taxpayer, during the period beginning with the date of the disposition of the converted property and ending “(i) one year after the close of the first taxable year in which any part of the gain upon the conversion is realized, or (ii) subject to such terms and conditions as may be specified by the Secretary [of the Treasury] or his delegate, at the close of such later date as the Secretary or his delegate may designate on application by the taxpayer,” replaces the converted property by purchasing other property similar or related in service or use to the property so converted, the gain from the disposition of the involuntarily converted property shall be taxable only to the extent that the amount realized upon such conversion exceeds the cost of the replacement property.

As previously stated, the plaintiff’s lands in Potter County, Texas, were taken by the State of Texas in 1959, and the amount representing just compensation for the property was received by the plaintiff in June 1959. Therefore, under subdivision (i) quoted in the preceding paragraph, the plaintiff had the right until the end of the year 1960, or for approximately 1% years, to replace the involuntarily converted property, if he wished to avail himself of the benefit provided for in Section 1033 of the 1954 Code. However, the plaintiff did not replace the two parcels of land by the end of 1960.

On May 18, 1964 — which was approximately 3½ years after the expiration of the period prescribed by subdivision (i) for the replacement of the condemned parcels of land — the plaintiff sent to the Internal Revenue Service an application for an extension of the time within which to replace the involuntarily converted property. In the application, the plaintiff called attention to the circumstances that his wife had sustained an injury during Christmas week of 1959 and thereafter was an invalid for several months; that his wife had died in May 1962 of hepatitis; that the plaintiff himself had noticed a marked decline in his energy in the summer of 1960; that this condition had been diagnosed in the spring of 1961 as being due to a rectal cancer, for which the plaintiff had undergone surgery in the summer of 1961; and that the plaintiff had a permanent colostomy, which interfered to some extent with business and other activities. The plaintiff further stated that:

My wife’s prolonged illnesses and my own probably were contributing factors to my lack of diligence in seeking an extension at an earlier date, and thereby avoiding the controversy which has arisen.

The plaintiff’s request for an extension of time was denied on June 26, 1964, principally on the ground that the request was untimely.

The plaintiff did not, of course, have a right to an extension of the time prescribed by subdivision (i) for the replacement of the two parcels of land which the State of Texas took from the plaintiff in 1959. The Internal Revenue Service was empowered by subdivision (ii) to extend the period, but whether an extension should or should not be granted in a particular instance was discretionary with the agency. In the present case, the plaintiff’s application for a time extension was filed approximately 3% years after the period which the plaintiff wished the agency to extend had expired at the end of 1960, and the agency denied the application principally on the ground of its untimeliness. The agency’s range of discretion was certainly sufficient to permit a determination that the unfortunate circumstances referred to by the plaintiff, although regrettable, did not excuse the plaintiff’s failure to submit an application for extension sometime before the end of 1960. The presentation which the plaintiff made to the Internal Revenue Service indicated that the serious aspects of the illnesses of himself and his wife did not develop until after 1960.

It is not the prerogative of the court to weigh the circumstances independently and decide whether, on the basis of such an independent exercise of judgment, it would or would not have regarded the plaintiff’s delay in filing an application for an extension as excusable. Rather, the court is limited to a consideration of the question whether the Internal Revenue Service did or did not abuse its discretion in denying the plaintiff’s application for an extension on the ground of its untimeliness. When the question is put in that fashion, I believe that the judicial answer must be in the negative.

In connection with this point, it is pertinent to note that the plaintiff actually had not purchased any replacement property as of the time when he submitted his request for an extension in May 1964, and he still had not purchased any replacement property as of the time of the trial in August 1967.

For the reasons previously stated, it is my opinion that the plaintiff is not entitled to recover on his claim for the refund of income tax paid by him for the year 1959.

The concurring opinion of LARAMORE, Judge, in which DURFEE, Judge, and DAVIS, Judge, join, and the dissenting opinion of SKELTON, Judge, in which COLLINS, Judge, concurs, follow the opinion of the trial commissioner which has been adopted by the court.