Foster Lumber Co., Inc. v. U.S., 73-1659

• Decision Date: 29 July 1974
• Docket Number: No. 73-1659,73-1659
• Citation: 500 F.2d 1230
• Parties: 74-2 USTC P 9611 FOSTER LUMBER COMPANY, INC., Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1230

500 F.2d 1230

74-2 USTC P 9611

FOSTER LUMBER COMPANY, INC., Appellee, v. UNITED STATES of America, Appellant.

No. 73-1659.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 18, 1974.

Decided July 29, 1974.

Donald H. Olson, Atty., Tax Div., Dept. of Justice, Washington, D.C., for appellant.

Robert J. Vancrum, Kansas City, Mo., for appellee.

Before MEHAFFY, Chief Judge, and LAY and ROSS, Circuit Judges.

MEHAFFY, Chief Judge.

This is a refund suit by the successor in interest of a Missouri corporation to recover a portion of the taxpayer's 1967 federal corporate income tax payment. The taxpayer bases its claim on a recomputation of its 1967 tax liability to include the carryback of a net operating loss it had incurred in 1968. The Internal Revenue Service disallowed taxpayer's claim on the ground that the net operating loss in question had been fully absorbed in the recomputation of taxpayer's 1966 tax liability. The district court sustained the taxpayer's refund claim, and IRS brought this appeal. For the reasons stated below we affirm the judgment of the district court.

The relevant facts have been stipulated and may be briefly stated. In fiscal 1966 the taxpayer realized $7,236.00 of ordinary income and $166,634.00 in net long-term capital gains. In fiscal 1967 the taxpayer realized $114,261.00 of ordinary income and $114,656.00 in net long-term capital gains. In fiscal 1968 the taxpayer suffered a net operating loss of $42,203.00. Pursuant to the provisions of Int.Rev.Code 172 the taxpayer sought to carry back the 1968 net operating loss to its prior taxable years. The taxpayer first carried the net operating loss back to 1966, and there is no dispute over the taxpayer's recomputation of its 1966 tax liability.

Under the regular corporate income tax rates the 1966 liability was recomputed as follows:

                Taxable Income as Originally Reported  $173,870.00
                Net Operating Loss Deduction             42,203.00
                --------------------------------------------------
                Recomputed Taxable Income              $131,667.00
                Regular Corporate Tax on Recomputed
                  Taxable Income                       $ 58,200.00
                

Under the alternative tax provided in section 1201 the 1966 tax liability was recomputed as follows:

Ordinary Income Element of Taxable

                  Income                            $  7,236.00
                Net Operating Loss Deduction          42,203.00
                -----------------------------------------------
                Recomputed Ordinary Income Element
                  of Taxable Income                     -0-
                Net Long-Term Capital Gain Element
                  of Taxable Income                 $166,634.00
                Tax on Recomputed Ordinary Income
                  Element                               -0-
                Tax on Net Long-Term Capital Gain
                  Element                             41,658.00
                -----------------------------------------------
                Alternative Tax                     $ 41,658.00
                

The alternative tax method resulted in a smaller 1966 tax liability than that computed under the regular rates, and the parties agree that the section 1201 alternative tax is controlling.

Given the agreement among the parties on the recomputed 1966 tax liability, the sole controversy presented here is over the amount of the net operating loss carryback that is available to be carried forward to 1967. The controlling statutory language, in pertinent part, states that:

The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried.

Int.Rev.Code 172(b)(2).

The taxpayer contends that the above-quoted language allows it to carry forward to 1967 the excess of the net operating loss over the amount of the 1966 taxable income to which the loss had been carried:

                Net Operating Loss           $ 42,203.00
                Taxable Income to which NOL
                  Was Carried                   7,236.00
                ----------------------------------------
                NOL to be Carried Forward    $ 34,967.00
                

IRS contends that section 172(b)(2) allows taxpayer to carry forward only the excess of the net operating loss over the total amount of the taxable income for the year 1966:

                Net Operating Loss         $ 42,203.00
                Total Taxable Income        173,870.00
                --------------------------------------
                

NOL to be Carried Forward -0-

Stated somewhat differently, the issue in this case is whether the last phrase of section 172(b)(2), 'to which such loss may be carried,' modifies 'taxable income' as well as the words 'prior taxable years.'

The taxpayer concedes that its interpretation of section 172(b)(2) is counter to the position announced in Treasury Regulation 1.172-4(b)(ii), but notes that every court which has considered the issue has squarely rejected the position taken by IRS. Naegele v. United States, 32 Am.Fed.Tax R.2d 73-5689 (D.Minn.1973), appeal docketed, No. 73-1921, 8th Cir., Dec. 26, 1973; Olympic Foundry Co. v. United States, 29 Am.Fed.Tax R.2d 72-759 (D.Wash.1972), aff'd per...