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Commissioner v. Wheeler, 324 U.S. 542 (1945)

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324 U.S.

542
65 S.Ct. 799
89 L.Ed. 1166

COMMISSIONER OF INTERNAL REVENUE


v.
WHEELER et al.
No. 354.
Argued Feb. 2, 1945.
Decided March 26, 1945.
Rehearing Denied May 7, 1945.

See 325 U.S. 892, 65 S.Ct. 1182.


Mr. Bernard M. Chertcoff, of Washington, D.C., for petitioner.
Mr. William D. Whitney, of New York City, for respondents.
Mr. Justice JACKSON delivered the opinion of the Court.

The Circuit Court of Appeals for the Ninth Circuit has held Section 501(a) of
the Second Revenue Act of 1940, 26 U.S.C.A. Int.Rev.Acts, to be
unconstitutional.1 This of course called for grant of certiorari.2

Since our problem is not computation of a tax, the facts relevant to the issues in
the five cases, consolidated on appeal, may be shortly stated. In 1925, John H.
Wheeler and his wife, Frances, organized under the laws of California the John
H. Wheeler Company. Then and thereafter they transferred an assortment of
securities to it in exchange for shares of its common stock. The securities had
cost them $304,683.49 and at transfer had a fair market value of $491,800. In
exchange the Wheelers received 4,918 shares with a par value of $100 each. No
gain by them was recognized for income-tax purposes by reason of the
exchange. Cf. Internal Revenue Code, 112(b)(5), 26 U.S.C.A. Int.Rev.Code,
112(b)(5).

For purposes of determining its income-tax liability on subsequent disposition


of the securities, the corporation was obliged to and did use as a cost base the

cost of the securities to the transferors, $304,684.49. Cf. Internal Revenue


Code, 113(a)(8), 26 U.S.C.A. Int.Rev.Code, 113(a)(8). But for its corporate
accounting the corporation set up a cost of $491,800, market value at the time
of acquisition in exchange for common stock of equal par value. The whole
question in this case is which of these bases is to be used to compute, pursuant
to 112(b)(7)(E) of the Revenue Act of 1938, 52 Stat. 447, 488, 26 U.S.C.A.
Int.Rev.Code, 112(b)(7)(E), the amount of 'earnings and profits' distributed as
liquidating dividends. The Act in 1938, the induce corporate liquidations,
permitted a qualified stockholder to elect postponement of a portion of the gain
realized on a December 1938 liquidation and to be taxed, as for a dividend, on
'so much of the gain as is not in excess of his ratable share of the earnings and
profits of the corporation * * *.' If the market-value basis is used for the
securities acquired from the Wheelers and later sold, the operations of the
Company showed a deficit on November 30, 1938, when the books were
closed. If the cost-to-transferors basis is used, 'earnings and profits' were
distributed to respondents, the stockholders, in the amount of $132,813.48, as
computed by the Commissioner.3
4

After considering the applicability of 112(b)(7), the stockholders duly


dissolved the corporation and distributed its assets during December 1938.
They elected to be taxed on the gains on their shares pursuant to 112(b)(7),
and they reported, of course, according to the higher or market-value basis for
the securities acquired and disposed of by the Company. The Commissioner
asserted a deficiency based on the lower cost to the transferors. In explaining
his determination he relied on 501(a) of the Second Revenue Act of 1940, 54
Stat. 974, 1004, 26 U.S.C.A. Int.Rev.Acts, which provides that earnings and
profits on the sale or other disposition of property shall be determined by using
the adjusted basis for determining gains and by recognizing such gains to the
extent that they are recognized for computing net income, and on 501(c),
which makes the provisions of 501(a) applicable to prior years.

The Tax Court sustained the Commissioner. 4 It held 501(a) of the Act of
1940 a 'complete answer' to taxpayers' contention, and it overruled their claim
that if the section was applicable to increase their 1938 liability it was
retroactive in contravention of the Fifth Amendment to the Constitution. The
Circuit Court of Appeals agreed that the section was applicable, but held that
such retroactivity rendered it unconstitutional.

Although the term 'earnings and profits' has long been in the revenue acts, in
connection with the definition of dividends, it has never been defined by the
statutes5 (except in so far as 501(a) of the Second Act of 1940 has now done
so). But under the Revenue Act of 1934 and secceeding acts, the Commissioner

dealt by regulation with that portion of the problem of definition relevant here.
Article 115-3 of Treasury Regulations 101, promulgated under the 1938 Act,
provided in part as follows; 'Gains and losses within the purview of Section 112
or corresponding provision of prior Acts are brought into the earnings and
profits at the time and to the extent such gains and losses are recognized under
that section.'6 This regulation, if valid, disposes of the controversy, for when
the corporation sold its securities acquired from the Wheelers it realized gain,
based on transferor's cost, which was fully recognized under 112.
7

The only reason to doubt the validity of the regulation is found in certain
decisions of the Board of Tax Appeals and lower courts, mentioned in the Tax
Court's opinion. Despite these adverse decisions, however, the Commissioner
persisted in applying the regulation. The question was never reviewed here.
Before it was finally judicially considered, Congress enacted 501 of the
Second Revenue Act of 1940, as the committee reports show,7 to 'clarify the
law' by enacting the substance of the regulation. But if the regulation itself was
valid and effective, the clarifying amendment of 1940 added nothing to the
liability of these taxpayers, and even though the Tax Court relied on it rather
than on the regulation, no question of retroactivity is presented.

We think the regulation is reasonable and a valid exercise of the rule-making


power. The taxpayers are insisting on using as a base for tax purposes a figure
that in itself had no relation to taxation. It was no doubt permissible and
perhaps the correct accounting, for determining earned surplus for dividends
and such corporate purposes, for the corporation to set up its books on the
market value of its property at the time of acquisition, which determined the
value of the stock it issued. But 'earnings and profits' in the tax sense, although
it does not correspond exactly to taxable income, does not necessarily follow
corporate accounting concepts, either.8 Congress has determined that in certain
types of transaction the economic changes are not definitive enough to be given
tax consequences, and has clearly provided that gains and losses on such
transactions shall not be recognized for income-tax liability but shall be taken
account of later. 112, 113. It is sensible to carry through the theory in
determining the tax effect of such transactions on earnings and profits.
Compare Commissioner v. Sansome, 2 Cir., 60 F.2d 931, and see Sen.Rep. No.
2156, 74th Cong., 2d Sess., p. 19; H.R.Rep. No. 2894, 76th Cong., 3d Sess., p.
41. Indeed, Congress appears to have provided for this result in the statute
itself, 111(c) of the 1938 Act, 26 U.S.C.A. Int.Rev.Code, 111(c), which
declares: 'In the case of a sale or exchange, the extent to which the gain or loss
determined under this section shall be recognized for the purposes of this title,
shall be determined under the provisions of section 112.'9 In this case, to be
sure, there was no question of recognition of gain or loss to the corporation at

the time of the exchange with the Wheelers, because it was issuing its own
stock and so realized no gain or loss. But to recognize the increment in value as
affecting earnings and profits would no more harmonize with the taxless
character of the transaction than to treat a realized gain as doing so. The same
policy which carries over the transferor's basis for purposes of the corporation's
income tax, 113(a)(8), requires carrying it over for determining the taxability
of its distributions as the Commissioner's regulation directs: gains and losses
are to be brought into earnings and profits at the time and 'to the extent' that
they are recognized under 112. Finally, no doubt of the reasonableness of the
rule can linger in the presence of 501(a), by which Congress has indicated its
express approval of the principle that the basis for determining earnings and
profits shall be the basis for determining gain.
9

We therefore think that on principles often reiterated10 the regulation is valid


and decisive of this issue. There is no necessity to predicate the determination
of deficiency on the 1940 amendment. The 1940 amendment consequently has
no retroactive effect on the liability of these taxpayers and the conclusion of the
Court of Appeals that it is unconstitutional is not warranted. The judgment of
the Court of Appeals is reversed and that of the Tax Court is affirmed.

10

Reversed.

11

Mr. Justice ROBERTS is of opinion the judgment should be affirmed for the
reasons stated by the Circuit Court of Appeals, 9 Cir., 143 F.2d 162.

143 F.2d 162.

323 U.S. 694, 65 S.Ct. 83.

This was slightly modified by the Tax Court in an aspect not material here.

1 T.C. 640.

See Paul, Selected Studies in Federal Taxation, Second Series, 1938, 149, 155
et seq.

The provision appears in Reg. 94, Art. 115-3, under the Act of 1936; Reg. 86,
Art. 115-1, under the Act of 1934; and in Reg. 103, Sec. 19.115-3 and Reg. 111,
Sec. 29.115-3 under the Internal Revenue Code.

See H.R. Rep. No. 2894, 76th Cong., 3d Sess., p. 41; Sen. Rep. No. 2114, 76th

Cong., 3d Sess., p. 22.


8

See 1 Mertens, Law of Federal Income Taxation (1942) 9.33.

(Ital. supplied.) See Paul, Selected Studies in Federal Taxation (Second Series,
1938) 193-95.

10

Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 706, 44 L.Ed. 846;
Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 117, 74 L.Ed. 457; United
States v. Kirby Lumber Co., 284 U.S. 1, 3, 52 S.Ct. 4, 76 L.Ed. 131; Fawcus
Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed.
397. It may also be noted that the regulation has the support of the doctrine that
re-enactment of the statute without disapproval of regulations thereunder gives
them added sanction. United States v. Dakota-Montana Oil Co., 288 U.S. 459,
466, 53 S.Ct. 435, 438, 77 L.Ed. 893; Helvering v. Winmill, 305 U.S. 79, 83,
59 S.Ct. 45, 47, 83 L.Ed. 52; Helvering v. Griffiths, 318 U.S. 371, 395, 397, 63
S.Ct. 636, 648, 649, 87 L.Ed. 843.

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