Dunn v. United States, 77 Civil 2664.

• Decision Date: 12 March 1979
• Docket Number: No. 77 Civil 2664.,77 Civil 2664.
• Parties: Stewart A. DUNN, Jr., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

468 F. Supp. 991

Stewart A. DUNN, Jr., Plaintiff, v. UNITED STATES of America, Defendant.

No. 77 Civil 2664.

United States District Court, S. D. New York.

March 12, 1979.

Kronish, Lieb, Shainswit, Weiner & Hellman, New York City, for plaintiff; Stephen D. Gardner, Laurence J. Kaiser, David E. Cowling, New York City, of counsel.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City, for defendant; David M. Jones, Asst. U. S. Atty., New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Plaintiff Stewart Dunn, a securities analyst and salesman at the time of the events described herein, who was also engaged in the business of farming in the 1960s, commenced this action against the United States to recover an alleged overpayment of taxes in the amount of $17,879.14.¹ This sum represents an assessment against him by the Internal Revenue Service ("IRS" or the "Service") for the tax year 1968, based on the Service's disallowance of $28,345 of the taxpayer's claimed deduction for prepayments made on cattle feed consumed in 1969. The government moves for summary judgment on the grounds that the assessment was valid.

The material facts of the case are not in dispute.² During 1968 and 1969 plaintiff was a cash basis, calendar year taxpayer who engaged in farming as a business. In November and December 1968 he purchased a total of 292 head of cattle, which were sold for a profit of $14,000 in July and August 1969. On December 11, 1968, plaintiff entered into an agreement with Phelan Brothers Feedlot Co., whereby the latter undertook full care and feed of 185 head of cattle; the consideration for the agreement was plaintiff's prepayment of $18,500 on the feed bill, paid by a check dated December 18, which cleared United California Bank (the "Bank") five days later. The contracting parties entered into a second, similar contract on December 21 with respect to 107 head of cattle. Again, the consideration was prepayment of the feed bill, this time in the sum of $11,770, which plaintiff paid by a check dated December 29, 1968, drawn on his account at the Bank. In this instance the check was payable to "UCB for credit of Phelan Brothers" and so the Bank forthwith debited his account.

The cattle subject to the two agreements consumed $1,924.72 worth of feed in 1968; the remainder, worth $28,345.28, was consumed in 1969. The taxpayer claimed the entire prepayment of $30,270 as an ordinary and necessary business expense for the 1968 tax year and deducted it from his income;³ the IRS disallowed $28,345 of the deduction as "a `deposit' against future feed charges."⁴ The taxpayer challenges this disallowance.

Plaintiff admits that he did not prepay for livestock feed in any year other than 1968 and that "tax reasons were part of the consideration for making the payment prior to January, 1969."⁵ His total deduction of $30,270 yielded a significant tax saving for 1968. This is apparent by a comparison of his actual tax returns,

                                        Adjusted       Taxable
                        Gross Income    Gross Income   Income
                1966     $ 8,076.88     $ 8,076.88     $ 4,854.86
                1967     $24,846        $24,846        $19,658
                1968     $21,219        $18,123        $12,563
                1969     $ 5,515        $ 1,218        ($ 3,766)
                                                       (loss)
                

with his returns as recomputed by the Service, which allocated most of the deduction to 1969,

                                          Adjusted         Taxable
                        Gross Income    Gross Income     Income
                1968      $49,564         $46,468         $40,908
                1969     ($22,830)      ($27,127)       ($32,111)
                         (loss)         (loss)          (loss)
                

The IRS agrees that as a general rule, "amounts paid by farmers on the cash receipts and disbursements method of accounting for feed to be consumed by their livestock in the taxable year of payment . . . are deductible business expenses"⁶ but relies on Revenue Ruling 75-152 as authority for its reallocation of most of plaintiff's deductions to 1969:

However, three tests must be met before a farmer using the cash receipts and disbursements method of accounting may deduct in the year of payment, the cost of feed to be consumed by his own livestock in a following taxable year. First, the expenditure must be a payment for the purchase of feed rather than a mere deposit; second, the prepayment must be made for a business purpose and not merely for tax avoidance; and third, the deduction of such costs in the taxable year of prepayment must not result in a material distortion of income.⁷

Specifically, the Service requests summary judgment on the ground that the taxpayer's deduction resulted in a "material distortion of his income" for 1968. The taxpayer objects that (1) the revenue ruling is a misstatement of the law and should not be followed, (2) the Service abused its discretion in applying the ruling retroactively against his 1968 returns, and (3) the ruling, in any event, does not support summary judgment in this case. The Court disagrees.

I

Plaintiff argues that Revenue Ruling 75-152 cannot govern the present case because it is an invalid statement of the law and contrary to most of the cases. While plaintiff is correct that there is some case law allowing deduction of cattle feed prepayments in the year of payment upon a finding that the prepayment was not a deposit,⁸ the decisions that squarely address the issue in the present case support disallowance of the deduction if it materially distorts income.⁹ And although revenue rulings do not have the binding effect of Treasury Department Regulations, they do have the force of legal precedents unless unreasonable or inconsistent with the provisions of the Internal Revenue Code.¹⁰ In promulgating the "material distortion of income" prong of Revenue Ruling 75-152, the IRS relied on its powers under section 446(b) of the Code: "If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary of the Treasury or his delegate, does clearly reflect income."¹¹ The accepted interpretation of the section is that the Service can challenge "not only the over-all method of accounting of the taxpayer but also the accounting treatment of any item."¹²

The legislative purpose underlying section 446(b) is to ensure that income and expenses are accurately reported in cash basis enterprises, so that taxpayers cannot avoid present taxes by claiming large deductions based on the timing of payments in their cash businesses.¹³ In recent years a practice has been engaged in whereby individuals use cattle feed prepayments as a tax shelter to create artificial business deductions that give them wide latitude to offset individual income in any given tax year; Revenue Ruling 75-152 was adopted to limit this manipulation of cash accounting by such "passive farmers."¹⁴ In a number of cases the ruling has been upheld as a valid exercise of the Commissioner's power to "prescribe all needful rules and regulations for the enforcement of" section 446(b).¹⁵ This Court concurs in that judgment and accepts Revenue Ruling 75-152 as the controlling precedent in this case. Indeed, its principle that prepayment for cattle feed should not be credited as a deduction for the year in which it is paid if income would be materially distorted thereby is consistent with the treatment accorded by courts and the Service to prepaid interest,¹⁶ rent,¹⁷ and insurance premiums.¹⁸

II

With respect to plaintiff's attack on the Commissioner's retroactive application of the 1975 ruling to his 1968 tax returns, the general rule is that, like judicial precedents, such rulings are to be accorded retroactive treatment absent some compelling reason to the contrary.¹⁹ (Thus the Service is not limited to its original reason for disallowance of the deduction.) Courts have declined to give retroactive effect to regulations and rulings, however, where they would alter established principles of tax law implicitly approved by Congress, lead to unequal treatment among similarly situated taxpayers, or be unduly harsh if applied to a specific case.²⁰ This Court would be sensitive to any taxpayer reliance, to his detriment, on principles accepted by the Service and the courts in 1968 but later altered by administrative fiat and not in response to the organic evolution of federal tax law.

These problems are not apparent in the present case. The taxpayer here cannot claim that the law was clear and settled in 1968,²¹ nor can he deny the longstanding principle, recently reiterated by the Supreme Court, that section 446(b) vests "the Commissioner with wide discretion in determining whether a particular method of . . . accounting should be disallowed as not clearly reflective of income."²² Moreover, Revenue Ruling 75-152 is entirely consistent with the Service's other rulings and regulations and with judicial decisions interpreting its power to issue rulings pursuant to section 446(b).²³ To the extent that the ruling is declarative of the evolving common law of federal income taxation, its retroactive application against plaintiff is not unwarranted.²⁴

III

The question remains whether the ruling compels the conclusion that the deduction was properly disallowed in this case. To begin with, the prepayment, effected with the tax consequences in mind, produced a large and favorable alteration in plaintiff's total tax liability for 1968 and 1969. That the transaction yielded a tax savings, however, does not alone direct a finding of material distortion. Other factors to be considered include "the customary business practice of the taxpayer in conducting his livestock operations, the amount of the expenditure in relation to past purchases, the time of the year the expenditure was made, and the materiality of the expenditure in relation to the taxpayer's...