Commissioner of Internal Revenue v. Coward, 7246.

• Decision Date: 23 February 1940
• Docket Number: No. 7246.,7246.
• Citation: 110 F.2d 725
• Parties: COMMISSIONER OF INTERNAL REVENUE v. COWARD.
• Court: U.S. Court of Appeals — Third Circuit

110 F.2d 725 (1940)

COMMISSIONER OF INTERNAL REVENUE v. COWARD.

No. 7246.

Circuit Court of Appeals, Third Circuit.

February 23, 1940.

Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Ellis N. Slack, and Arthur A. Armstrong, Sp. Assts. to Atty. Gen., for petitioner.

George P. Moser, of Union City, N. J., and Gustave A. Wuerfel, of Washington, D. C., for respondent.

Before BIGGS, CLARK, and JONES, Circuit Judges.

CLARK, Circuit Judge.

The controversy at bar centers about the long standing provision for the deduction from gross income of "taxes paid or accrued within the taxable year", 26 U.S.C.A. Int. Rev.Code, § 23 (c). The enactment is simple: its application is, in our circumstance, anything but simple. We must struggle, first, with the perplexing intricacies of the New Jersey scheme of real estate taxation, and second, in order to appraise the pertinent federal decisions, with the equally perplexing diversities existing between that and other local tax systems. See Paul, The Effect on Federal Taxation of Local Rules of Property, Selected Studies in Federal Taxation 1, 23, 24.

On October 1 of each year all property in the State of New Jersey is "assessed to the owner thereof with reference to the amount" then owned¹. In the year 1933, that property included two parcels of improved income producing real estate owned by one X. But within a few months respondent had acquired (presumably by purchase) these parcels from X, one on October 16, 1933, the other on January 8, 1934. Then on January 10, 1934, the list of assessments which had been in the course of preparation since the first of October previous was filed with the county board of taxation². Thereupon the board considered the revision of assessments³ and the amount of revenue to be raised during the current year (1934) for school⁴, state⁴, and local⁵, purposes. It fixed the local tax rate on March 10, 1934⁶, and by April 1, 1934 a revised and corrected duplicate list of assessments certified as a true (and public) record of the taxes assessed was delivered to the collector⁷. Meanwhile, however, and on February 1, 1934, the first instalment of the 1934 taxes had become payable (the amount being estimated with reference to the taxes for the previous year)⁸. The second instalment (likewise estimated) became payable on May 1, 1934, and the third and fourth (adjusted to the estimates so as to total the by then determined amount of the 1934 tax) on August and November 1, 1934, respectively⁸. Respondent paid each instalment of the 1934 tax on her properties without delay. If she had not done so, a lien for them would have attached on December 1, 1934⁹.

From this welter of chronology, the Commissioner deduces that respondent, who keeps her books on the cash basis, is not entitled to deduct from her gross income for 1934 the real estate taxes paid by her in 1934. As he reasons, the sums paid were not taxes at all, but, rather part of the cost of the two parcels. The argument is founded on precedent rather than principle, and proceeds syllogistically as follows. Major premise: one who purchases real estate upon which local taxes have accrued may not deduct the later payment of those taxes as "taxes paid". Minor premise: New Jersey real estate taxes had already accrued (at the date of assessment, October 1, 1933) on respondent's properties by the time she acquired them (October 16, 1933, January 8, 1934). Conclusion: Respondent is not entitled to her deduction.

The Board denies the minor premise and hence reaches an opposite conclusion. Yet in doing so it does not look behind the misleading terminology of accrual employed in both premises. As a consequence all concerned succumb to the influence of a line of cases which, we think, are completely beside the point. These have to do with the interpretation of the word "accrued". That interpretation, as is expressly provided by statute, 26 U.S.C.A. Int.Rev.Code, § 48, lies in the field of accountancy on the accrual basis. The decisions are accordingly directed to the particular point of time when accounts payable (including taxes) may be listed on the taxpayer's books offsetting accounts receivable so as to fairly reflect the taxpayer's net income. See United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347; 3 Paul & Mertens, Law of Federal Income Taxation 23.33. Here, on the other hand, the word under construction is "taxes" not "accrued". We must determine whether a given payment is a forced contribution to the expense of government, or whether it is something else — a voluntary capital expenditure, for example. Its solution must lie in a close analysis of the transaction of payment. It cannot, in our judgment, be solved by any rule of thumb that a property owner's payment is not one of a tax on his property because a prior owner (on the accrual basis) might have been permitted to accrue it. For that permission to accrue may depend on technical exigencies of accounting utterly foreign to the later owner's economic position in actually making the payment. That being so, our decision may be neither framed within the Commissioner's syllogism, nor guided by the accrual basis cases.

Turning then, to the decisions which have actually come to grips with the problem at bar, we find them suggesting two and only two types of transactions where real estate taxes are not "taxes" within the meaning of the statute. In the first, property is sold and the buyer promises the seller to pay certain taxes on the property. There, by express contract, the payment of taxes is part of the consideration for the sale, and not a payment qua taxes, Falk Corp. v. Commissioner, 7 Cir., 60 F.2d 204. It is also possible that such a contract might be implied in fact if the seller were personally liable for the tax, for it would be difficult otherwise to account for the buyer's munificence in paying it. See Walsh-McGuire Co. v. Commissioner, 6 Cir., 97 F.2d 983. The second transaction is the purchase of property to which a tax lien has attached. That property has in a sense two owners, the seller, and, through the lien, the state. Hence its full acquisition entails two payments, the nominal purchase price, and the taxes represented by the lien. Both have been treated alike as capital expenditures¹⁰. Where, on the other hand, the tax payment falls into neither of these two categories — where it neither discharges (by contract, express or implied) the personal liability of another, nor what was originally a tax lien on another's property — the deduction has been permitted, Commissioner v. Plestcheeff, 9 Cir., 100 F.2d 62.

Tested by these authorities, respondent's payment to the New Jersey tax collector in 1934 is clearly one of "taxes". There is no indication of any express contract for their payment, Mr. X, from whom she purchased, was not personally liable for them¹¹, and the property was not subject to any lien for them when she acquired it — indeed no such lien was possible until a year or so after title passed to her; see Empress Mfg. Co. v. Newark, 109 N.J.L. 131, 133, 160 A. 388, 389. Those authorities, however, do not deal with the New Jersey tax system and are not in strictness applicable to it. It is necessary, then, to consider the effect of one of the features of that system which is not stressed in the cases arising from other states.

Respondent's two parcels were, in theory, already "liable" for the 1934 taxes when she purchased them. That is to say, nothing which occurred after the assessment of October 1, 1933, could alter the fact that the land itself must ultimately yield those taxes either directly through the eventual foreclosure of a tax lien, or indirectly through the medium of its then or subsequent owner's pocketbook. If, for instance, the land assumed a tax exempt status on October 2, 1933, it would, nevertheless, bear its full share of 1934 tax¹². The presence of this liability in rem may well afford a basis for "accruing" the tax in the accounting sense¹³. But does its pre-existence deprive the purchaser who later discharges it of his income tax deduction?

We think not. A New Jersey statute provides that in the absence of an express agreement to the contrary the buyer of real estate may hold the seller liable for such proportion of the current year's taxes as the time between January 1 and the date of the deed bears to the full calendar year, 2 Cum.Supp. (1924) Comp.Stat. § 208 — 66d (514), N.J.S.A. 54:4-56. This statute does not affect the lien for unpaid taxes — the crystallization of the land's liability in rem. So the fact that the property has been assessed prior to sale, does not in the eyes of the New Jersey legislature mean that the tax resulting from that assessment is to be borne by the seller. It is always borne by the land in the first instance. But as between buyer and seller it is apportioned on the basis of the calendar year. In other words, it is considered fair that the owner of land in any given year shall be called upon to contribute to the year's revenues only a sum commensurate with the length of time the land has been held in that year — except, of course, in the rare case of the prior owner's insolvency. Such a contribution is, in our judgment, a tax in every sense of the word. And that, with the exception of 8/365 of the tax on the parcel acquired on ...