COMMISSIONER OF INTERNAL REVENUE v. LIBERTY BANK & TRUST CO. LIBERTY BANK & TRUST CO. v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 5780, 5867.
Circuit Court of Appeals, Sixth Circuit.
May 12, 1932.
Ill OKENLOOPER, Circuit Judge, dissenting.
G. A. Youngquist, Ass’t Atty. Gen. (Sewall Key, Hayner N. Larson, C. M. Charest, and Prew Savoy, all of Washington, D. C.), for Commissioner.
George M. Morris, of Washington, D. C. (KixMiller, Baar & Morris, of Washington, D. C., on the brief), for Liberty Bank.
W. A. Sutherland, of Atlanta, Ga., ami-cus curia.
Before MOORMAN, HICKS and HICK-ENLOOPER, Circuit Judges.
MOORMAN, Circuit Judge.
Petitions to review decisions of the Board of Tax Appeals by the taxpayer, the Liberty Bank & Trust Company, in No. 5867, and by the Commissioner in No. 5780.
The petitioner in No. 5867 contends that debts owing to it by the Kentucky Wagon Manufacturing Company and the Wolko Lead Batteries Company were recoverable only in part on December 31, 1921, and that deductions should have been allowed therefor from gross income for the year 1921 in the sum of $175,000. The Commissioner disallowed the deductions, and the Board of Tax Appeals sustained his ruling upon the ground that no art of the indebtedness was charged off by the taxpayer during the taxable year. The ruling of the Board was based on section 234(a) (5) of the Revenue Act of 1921 (42 Stat. 254), which provides that the taxpayer shall be allowed as deductions “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); and when satisfied that a debt is recoverable only in part, the Commissioner may allow such debt to be charged off in pari.”
This statute deals with two classes of debts: Those that have become wholly worthless, and those recoverable only in part. It makes provision for the deduction of each from gross income, providing as to the first that, when “ascertained to be worthless and charged off,” a deduction therefor “shall be allowed”; and as to the second, that, when “satisfied that a debt is recoverable only in part the -Commissioner may allow such debt to .be charged off in part.” The allowance as to each class depends on the performance of a precedent act or acts. Those in the first are the ascertainment of worthlessness and the charging off, which must be done by the taxpayer, subject, of course,.to tbe review of the Commissioner as to tbe reasonableness of the ascertainment. Sherman & Bryan v. Blair, Comm. (C. C. A.) 35 F.(2d) 713; Deeds v. Commissioner, 47 F.(2d) 695 (6 C. C. A.). In the other class the precedent, act must be performed by the Commissioner. He must be “satisfied that a debt is recoverable only in part,” and, until he is, there can be no charge off, and then only with his permission. The taxpayer being under no -duty to make the charge off in this class until the Commissioner permits ( it to be done, it is sufficient to give him a right to have the Commissioner’s ruling reviewed that his claim to a charge off was made and rejected. In this case claims were presented and disallowed. Whether the disallowances by the Commissioner were because of tbe failure of the taxpayer to charge off the debts in part or were made in the exercise of the discretion which the Commissioner has does not appear. See Stranahan v. Commissioner, 42 F.(2d) 729 (6 C. C. A.) as to the extent of discretion. The Board of Tax Appeals, as we have said, based its decision upon the failure of the taxpayer- to charge off the debts in part. We think it should have considered and determined whether the Commissioner abused his discretion in not allowing the charge offs to be made.
The initial question in case Ho. 5780 is whether this court has jurisdiction and power to hear and determine the questions presented by the petition of the Commissioner. It is said that'there is no such power because there is no “ease or controversy” within the ineaning of section 2 of article 3 of the Constitution. The theory of that view is that the Board of Tax Appeals is an executive or administrative tribunal of the government superior in authority to the Commissioner of Internal Revenue, and that when the Board acted favorably to the taxpayer .on its appeal from the deficiency assessment there was an accord between the taxpayer and the highest administrative body, and no controversy remained. It is to be noted in connection with this contention that there are thirty-five reported eases, among them ■ Commissioner v. Bingham, 35 F.(2d) 503 (6 C. C. A.), And Commissioner v. Leasing & Building Co., 46 F.(2d) 2 (6 C. C. A.), in which petitions in behalf of the Commissioner to review decisions of the Board of Tax Appeals have been accepted without question. Among these eases are decisions from each of the Circuit Courts of Appeals, some of which were reviewed by tbe Supreme Court, and in none of them was the power of the Circuit Court of Appeals to review a decision of the Board of Tax Appeals upon petition of the Commissioner ever questioned or thought to he in doubt.
Whatever may have been assumed heretofore, it is, however, true that, unless a decision against the government by tbe Board of Tax Appeals presents a “case or controversy” within tbe judiciary article, there is no power of review in a constitutional court. We inquire therefore, into the statutory functions of the Board, which, as pointed out in Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 49 S. Ct. 499, 502, 73 L. Ed. 918, was established by the Revenue Act of 1924 (43 Stat. 253). Under that Act it became" tbe duty of the Board to hear and decide whether deficiencies reported by the Commissioner were rightly determined. It was provided in the act that, if the Board determined there was a deficiency, the amount so determined should be assessed and paid upon notice and demand from tbe collector, and no part of the deficiency assessed by the Commissioner hut disallowed as such by tho Board could be assessed. The Commissioner, however, was given the power notwithstanding the decision of the Board, to bring a suit in a proper court against the taxpayer to collect as a deficiency the difference between his assessment and that allowed by the Board. See United States v. Cleveland Co., 42 F.(2d) 413 (6 C. C. A.). The Revenue Act of 1926 (44 Stat. 9) enlarged the original jurisdiction of the Board to consider deficiencies beyond those shown in the Commissioner’s notice if the Commissioner made claim therefor at or before tbe hearing. It further provided for a direct judicial review of the Board’s decision by the filing by either the Commissioner or tho taxpayer of a petition for review. Thus there is full statutory authority for the review here under consideration, and the sole question is whether it was within the power of Congress to confer such authority upon the courts.
The question would seem to depend first upon who is the United States’ “authorized official” or “its representative” Cor the purpose of asserting its right to tho payment of the tax. If the Board is such representative, there is, of course, no controversy between the government and taxpayer after the Board has made a detei mination in favor of the taxpayer. But the sole function of the Board “consists in reviewing, on appeal, determinations of the Commissioner under the revenue laws.” It is not concerned with the collection of taxes and “is not a part of the Bureau of Internal Revenue,” but is “an independent agency * * k ‘in the executive branch of the government.’ ” Williamsport Wire Rope Co. v. United States, 277 U. S. 551, 564, 48 S. Ct. 587, 591, 72 L. Ed. 985. While it is not a court but is an executive or administrative board, it nevertheless exercises “appellate powers which are judicial in character.” Goldsmith v. United States Board of Tax Appeals, 270 U. S. 117, 46 S. Ct. 215, 70 L. Ed. 494; Blair v. Oesterlein Mach. Co., 275 U. S. 220, 227, 48 S. Ct. 87, 89, 72 L. Ed. 249. The Commissioner, on the other hand, has “general superintendence of the assessment and collection of all duties and taxes imposed by any law providing internal revenue.” 26 USCA, § 2. He is designated by Congress to represent the government before the Board and is a party to the proceeding before it. Thus, when a taxpayer seeks a review before the Board of a deficiency assessment, the controversy is between tho taxpayer and the government as represented by the Commissioner, and the Commissioner by statutory designation thereafter continues as the government’s representative to prosecute its claims from adveráis decisions of the Board. 26 USCA § 1224(a).
It makes no difference that the Board is an executive or administrative tribunal. There are certain matters involving public rights which “admit of legislative or exec-' utive determination, and yet from their nature are susceptible of determination by courts.” Den ex dem. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284, 15 L. Ed. 372; Fong Yue Ting v. United States, 149 U. S. 698, 714, 13 S. Ct. 1036, 37 L. Ed. 905; Ex Parte Bakelite Corporation, 279 U. S. 438, 451, 49 S. Ct. 411, 73 L. Ed. 789. Tho mode of determining matters of this class is completely within congressional control. Congress may reserve the power to itself, may delegate it to executive officials, or may commit it to judicial tribunals. Ex Parte Bakelite Corporation, supra. Tho latter course can only be adopted as to constitutional courts in matters which take such form that tho judicial power is capable of acting upon them. That power is capable of acting when there are parties whose adverse contentions are submitted to the court in the form proscribed by law, and where the determination involves neither advisory nor executive action. In re Pacific Ry. Commission (C. C.) 32 F. 241, 255; Osborn v. Bank of United States, 9 Wheat. 738, 6 L. Ed. 204. In pa-ssing upon matters such as are involved in this case; the Board exercises functions similar to those exercised by a trial court in a. law case without a jury. Phillips v. Commissioner, 283 U. S. 589, 599, 51 S. Ct. 608, 75 L. Ed. 1289. In our opinion, they aro matters susceptible of judicial determination. Tho order for reargumont in the Old Colony Trust Co. Case, supra, recited, among other things, that the court especially desired the assistance of counsel in respect to the question: “Was there power in Congress to confer jurisdiction upon the Circuit Court of Appeals to review action by the Board of Tax Appeals?” The question was not limited to reviews at the instance of the taxpayer, and in holding' that such power existed in the case then under consideration the court said: “In tho case we have here, there are adverse parties. The United States or its authorized official asserts its right to tho payment by a taxpayer of a tax due from him to the gov-eminent, and the taxpayer is resisting that payment or is seeking to recover what he has already paid as taxes when by law they were not properly due. That makes a case or controversy, and the proper disposition of it is the exercise of judicial power.” It is true that in that ease the Board of Tax Appeals had not decided for the taxpayer, but, as already pointed out, that Board is an “independent agency” whose sole function “consists in reviewing, on appeal, determinations of the Commissioner under the revenue laws.” It is not charged with the duty of assessing or collecting taxes but with deciding controversies between the taxpayer and the authorized representative of the government, the Commissioner of Internal Revenue. The position of the Board is analogous to that of. the Board of Appraisers under the Act of June 10, 1890 (26 Stat. 131), That act gave the collector of customs and the Secretary of the Treasury the right to have the decision of the Board of Appraisers as to certain matters reviewed in the Circuit Court. It was never suggested in any of the eases arising under that act that, when the Board of Appraisers decided such matters in favor of the importer, there remained no cognizable controversy for the courts. United States v. Klingenberg, 153 U. S. 93, 14 S. Ct. 790, 38 L. Ed. 647; United States v. Passavant, 169 U. S. 16, 18 S. Ct. 219, 42 L. Ed. 644; United States v. Lies, 170 U. S. 628, 636, 18 S. Ct. 780; 42 L. Ed. 1170.
The questions involved in Federal Radio Commission v. General Electric Co., 281 U. • S. 464, 50 S. Ct. 389, 390, 74 L. Ed. 969, were “purely administrative,” and, while the court held that it could not review such questions, it nevertheless pointed out that the proceedings there under consideration were wholly unlike proceedings under the Revenue Act of 1926 “on a petition for the review of a decision of the Board of Tax Appeals,” saying: “For, as this court heretofore has pointed out, such a petition (a) brings before the reviewing court the United States or its representative on the one hand and the interested taxpayer on the other, (b) presents for consideration either the right of the United States to the payment of a tax claimed to be due from the taxpayer or his right to have refunded to him money whieh he has paid to satisfy a tax claimed to have been erroneously charged against him, and (c) calls for a judicial and binding determination of the matter so presented — all of whieh makes the proceeding a case or controversy within the scope of the judicial power as defined in the judiciary article” — citing the Old Colony Trust Company Case, supra. Nowhere in that case nor in the Old Colony Company Case does it appear that the controversy is any the less a controversy within the judiciary article though the petition to review the decision of the Board of Tax Appeals be filed by the United States through its official representative rather than by the taxpayer. There being a controversy in this case between the taxpayer and the government as to the right of the government through its authorized representative to assess and collect, the tax, and the Board of Tax Appeals being an independent agency set up to review the action of the Commissioner in making the assessment, we can see no reason why a decision by the Board adverse to the Commissioner’s contention does not present a ease or controversy between the taxpayer and the government within the scope of the judiciary article. We accordingly hold that the right exists in this court to review the decision of the Board upon the petition of the Commissioner.
In its returns for 1916 to 1919, inclusive, the taxpayer charged off and reported certain debts as worthless. Due allowances were made for these debts by the Commissioner in the assessment of taxes for those years. Upon the payment of the debts in whole or in part in 1920 and 1921, the Commissioner treated the amounts received as a part of gross income. The Board of Tax Appeals reversed this ruling, holding to which there were dissents, that these payments were not a part of gross income for the years received because they were not in fact ascertained to be worthless for the years for which they were so reported and charged off. The opinion proceeded on the theory that the mistakes made in claiming and allowing the deductions for prior years could not be corrected by crediting the amounts collected to income in the year of collection. The Commissioner contends that the taxpayer, having asserted in its returns for the former years that the debts were ascertained to be worthless and charged off, and having received the benefit of such assertion, is now estopped to deny its truth to the prejudice of the government. The taxpayer contends, first, that the faets of the ease do not call for the application of equitable estoppel; and, second, that even if they did, the debts when collected were not income, but were return of capital.
It is said that it was the duty of the Commissioner, before allowing the deductions in the former years, to exercise reasonable diligence to discover whether the debts were worthless, and if he had done so, he could have ascertained that they were not. While it may be conceded that the Commissioner may not blindly accept every statement which a taxpayer makes as to a fact, and by acting- thereon preclude the taxpayer from showing at some other time that the statement was mistakenly made, we cannot assent to the view that a taxpayer which has been allowed a deduction for a debt, on its statement under oath that the debt has been ascertained to be worthless, is not estopped thereafter from denying the truth of the statement to the prejudice of the government. The Commissioner of necessity does and must rely largely upon the representations of the taxpayer, and, in order to estop the taxpayer from assuming a contrary position, he is not compelled io look with suspicion upon all such representations and himself examine, or cause to be examined, the financial condition of all the taxpayer’s debtors. It is the duty of the taxpayer to deal fairly and truthfully with the government. The taxpayer in this case was in a better position to ascertain the facts as to the value of debts owing to it than was the government, and it cannot now say that the government, by the exercise of reasonable care, ought to have done what it failed to do. The officers of the government charged with the duty of assessing and collecting taxes have the right to assume that a taxpayer will do his duty, and we think it is to be presumed from the fact that these deductions were allowed for the years in which they were claimed that the Commissioner relied upon the taxpayer’s sworn statements that the debts were worthless. It is also to he presumed, in the absence of evidence to the contrary that the government was prejudiced by such reliance, for it is obvious that a deduction from gross income reduces the net income subject to taxation. The purpose which the statute has in view in authorizing deductions for bad debts is to permit the taxpayer to reduce his taxable income. It is fair to infer from the fact that deductions wore claimed and allowed for these debts in former years, nothing else appearing, that there was a consequent reduction in taxable income.
Even if the taxpayer is not estopped from asserting that there was -no ascertainment of worthlessness for the former years, we are of opinion that the amounts received in payment of the debts were chargeable to gross income for the years in which they were received. On this point the ease is controlled, it seems to us, by the principles announced in Burnet v. Sanford & Brooks Co., 282 U. S. 359, 51 S. Ct. 150, 75 L. Ed. 383, where a taxpayer sustained losses on a contract which wore deducted from, income for the year in which they were sustained. These losses were subsequently recovered, and the court held that the recovery was a part of gross income when received, notwithstanding it “equalled, and in a loose sense was a return of, expenditures made in performing the contract.” This accords with the Department’s interpretation of the statutes. The regulations promulgated under section 213 (a) and section 233(a) of the Revenue Act of 1921 (42 Stat. 238, 254) provide tha,t bad debts, charged off because determined to be worthless, which are subsequently recovered, constitute income for the year in which recovered. Like regulations were promulgated under corresponding provisions of the Revenue Acts of 1916 and 1918 (39 Stat. 756; 40 Stat. 1057), and with these earlier regulations in effect Congress enacted sections 213(a) and 233(a) of the Revenue Act of 1921 in substantially the same language as the earlier acts. The same language was incorporated into the succeeding Revenue Acts of 1924, 1926, and 1928. It must be taken as settled that Congress was cognizant of the interpretation which the Treasury Department had put on the Revenue Acts of 1916 and 1918, and yet, with that interpretation extant, the provisions to which it applied were re-ena.cted in 1921. If such interpretation had not been consonant with the intent of Congress, it is reasonable to suppose that it would have modified this construction in the act of 1921, or in the later acts. Copper Queen Consol. Mining Co. v. Territorial Board of Equalization of Arizona, 206 U. S. 474, 27 S. Ct. 695, 51 L. Ed. 1143; Heiner v. Colonial Trust Co., 275 U. S. 232, 48 S. Ct. 65, 72 L. Ed. 256. In view of Burnet v. Sanford & Brooks Co., supra, we hold that it is permissible under the Sixteenth Amendment to credit to gross income the recoveries on debts for which deductions were allowed in former years.
The orders in both cases are reversed and the causes remanded for further proceedings consistent with this opinion.
The provision as to deductions for “debts ascertained to be worthless and charged off” is the same provision found in the Revenue Act of 1918, § 284 (a) (5), 40 Stat. 1078, since which such deductions have been allowed. That act, however, did not provide for addition to reserve for bad debts nor for a charge off of the unrecoverable part of a debt. Theso were first provided for in the Revenue Act of 1921.
First Circuit: Commissioner v. Angier Corporation, 50 F.(2d) 887; Commissioner v. Old Colony R. Co., 50 F.(2d) 896.
Second Circuit: Blair v. Dustin’s Estate, 30 F. (2d) 774; Commissioner v. Adolph Hirsch & Co., 30 F.(2d) 645; Commissioner v. City Button Works, 49 F.(2d) 705; Commissioner v. Field, 42 F.(2d) 820; Commissioner v. Godfrey, 50 F.(2d) 79; Commissioner v. Gong Bell Mfg. Co., 48 F.(2d) 205; Commissioner v. New York Trust Co., 54 F.(2d) 463; Remington Rand, Inc., v. Commissioner, 33 F.(2d) 77.
Fourth Circuit: Burnet v. Hanlon, 51 F.(2d) 453.
Fifth Circuit: Blair v. Stewart, 49 F.(2d) 257; Lucas v. Baucum, 50 F.(2d) 806; Lucas v. Hunt, 45 F.(2d) 781; Lucas v. Colmer-Green Lumber Co., 49 F. (2d) 234.
Seventh Circuit: Commissioner v. Langwell Real Estate Corp., 47 F.(2d) 841; Commissioner v. McCormick, 43 F.(2d) 277, reversed on the merits by the Supreme Court, 283 U. S. 784, 51 S. Ct. 343, 75 L. Ed. 1413; Commissioner v. Wright, 47 F.(2d) 871.
Eighth Circuit: Blair v. Byers, 35 F.(2d) 326; Burnet v. Jones, 50 F.(2d) 14; Burnet v. McDonough, 46 F.(2d) 944; Commissioner, Burnet v. Morsman, 44 F.(2d) 902 (reversed on the merits, 283 U. S. 783, 51 S. Ct. 343, 75 L. Ed. 1412); Lucas v. St. Louis National Baseball Club, 42 F.(2d) 984.
Ninth Circuit: Blair v. Roth, 22 F.(2d) 932; Burnet v. Bank of Italy, 46 F.(2d) 629; Burnet v. First Nat. Bank of Fresno, 46 F.(2d) 631; Burnet v. North American Oil Consolidated, 50 F.(2d) 752; Burnet v. Pacific S. W. Trust & Savings Bank, 45 F.(2d) 773; Burnet v. San Joaquin Fruit & Investment Co., 52 F.(2d) 123; Commissioner v. Garber, 50 F.(2d) 588; Commissioner v. Hind, 52 F.(2d) 1075.
Tenth Circuit: Commissioner v. Moore, 48 F.(2d) 526.