Levelland Savings and Loan Assoc. v. United States

• Citation: 421 F.2d 243
• Decision Date: 04 March 1970
• Docket Number: No. 27608.,27608.
• Parties: LEVELLAND SAVINGS AND LOAN ASSOC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

421 F.2d 243 (1970)

LEVELLAND SAVINGS AND LOAN ASSOC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 27608.

United States Court of Appeals Fifth Circuit.

January 23, 1970.

Rehearing Denied March 4, 1970.

Eldon B. Mahon, U. S. Atty., Fort Worth, Tex., Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Atty. Tax Div., Jonathan S. Cohen, Robert I. Waxman, Attys., U. S. Dept. of Justice, Washington, D. C., William W. Guild, Atty., Tax Div., U. S. Dept. of Justice, Fort Worth, Tex., for defendant-appellant.

Jack W. Hawkins, Dallas, Tex., Earl R. Allison, Gardere, Porter & DeHay, Dallas, Tex., for plaintiff-appellee.

Before RIVES, GOLDBERG and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

The taxpayer is a Texas state-chartered building and loan association. It adopted for federal income tax purposes the reserve method of accounting for bad debts. During each of the taxable years 1961, 1962 and 1963 the association included in the amount claimed as a deduction for addition to its bad debt reserve a sum which it had transferred to its "nonwithdrawable capital stock account." Each year the transfer to this stock account was in addition to amounts transferred to the bad debt reserve account.

The "nonwithdrawable capital stock account" was maintained under the provisions of Tex.Rev.Civ.Stat.Ann., Art. 881a-36(f) now Tex.Rev.Stat.Ann., Art. 852a, § 2.02, which we set out in the margin.¹

The Commissioner of Internal Revenue determined that for the years in question the sums transferred to the nonwithdrawable capital stock account were not properly deducted as funds transferred to a bad debt reserve and accordingly disallowed deductions to the extent of those sums.² The taxpayer paid the resulting deficiency and claimed a refund. The government disallowed the claim and this action followed. Judgment for the taxpayer was entered by the District Court. We reverse.

The District Court permitted the questioned deductions for all three years on the theory that the transfers to the nonwithdrawable capital stock account were the same as if credited to an account named "bad debt reserve." The transfers in question were from the association's undivided profits account. It was necessary that they be made to bring the nonwithdrawable capital stock account up to five percent of gross assets, the minimum level required of the taxpayer by Art. 881a-36(f). The taxpayer asserts that it also had other purposes for the transfers — to make the transferred funds available to absorb losses of the association, to prevent the amounts from being distributed as dividends, and to provide additional protection to the owners of withdrawable accounts. These are more accurately described as consequences of the transfer required by Texas statute. In any event, the fact remains that the transfers were necessitated by and made pursuant to the statute.

Under 26 U.S.C. §§ 166(c) and 593 a building and loan association may deduct annually an amount which is a reasonable addition to a reserve for bad debts instead of deducting worthless debts in the year in which they become worthless in whole or in part. A taxpayer using the reserve method must, upon establishing the worthlessness of a particular debt, reduce the reserve account by a charge thereto in the amount of the actual loss. The reserve must be available for such reduction. When a bad debt charged against the reserve is subsequently collected the amount of the collection is treated as income in the year of collection.

1. Taxable Years 1961 and 1962

The statute does not specifically deal with the issue before us. Turning to the Regulations, they provide for a deduction, allowed to the association in this instance, for amounts credited to a "reserve for bad debts," 26 C.F.R. § 1.593-1(a). The Regulations provide also that certain transfers other than those to a bad debt reserve "will be deemed to have been credited to the bad debt reserve," and it is on these provisions that the taxpayer relies.

The establishment of such bad debt reserve and all adjustments made thereto must be reflected on the regular books of account of the institution at the close of the taxable year, or as soon as practicable thereafter. Minimum amounts credited in compliance with Federal or State statutes, regulations, or supervisory orders to reserve or similar accounts, or additional amounts credited to such reserve or similar accounts and permissive under such statutes, regulations, or orders, against which charges may be made for the purpose of absorbing losses sustained by an institution, will be deemed to have been credited to the bad debt reserve. (emphasis added)

26 C.F.R. § 1.593-1(c).³ The taxpayer says the nonwithdrawable stock account is a "reserve or similar account". The government says it is not.

An account must meet several requirements in order for transfers thereto to qualify for deductibility as transfers made to, or deemed to be made to, a bad debt reserve. Much more must be considered than the label put on the account. The account must be available to absorb losses from bad debts which actually become uncollectible during the year. This would seem to follow from the nature of the account itself and from the account's function as a substitute for deduction of debts as they are determined to be worthless. Bittker, supra, 285 (3d ed., 1964). Funds transferred to the account are available for restoration to ordinary income when the need for the reserve ends. West Seattle National Bank of Seattle v. Commissioner of Internal Revenue, 33 T.C. 341, 343 (1959), aff'd 288 F.2d 47 (9th Cir., 1961); Arcadia Savings & Loan Association v. Commissioner of Internal Revenue, 34 T.C. 679 (1960) aff'd 300 F.2d 247 (9th Cir., 1962). The privilege of deducting amounts for predicted bad debts before they are ascertained contemplates that the amounts are earmarked and are not to be used for any purpose other than to apply against bad debts as they occur, for any use for such an inconsistent purpose is under penalty of having restored to income the amount so used. Rio Grande Building & Loan Association v. Commissioner of Internal Revenue, 36 T.C. 657 (1961). The nonwithdrawable capital stock account of taxpayer met none of these requirements.

Art. 881a-36(f) of the Texas statutes provided that the nonwithdrawable stock account could not be withdrawn "until after all liabilities of the association have been satisfied in full, including the full book value of all other types or classes of shares and share accounts." The government argues that this statute prohibited the reduction of the account to absorb losses from bad debts as they actually occur. The taxpayer asserts that despite the language of Art. 881-36(f) the account was available to meet bad debt losses because of other provisions of Texas law⁴ which under some circumstances authorize the Banking Commissioner of Texas, on petition of a financially distressed association, to order a reduction of liability of the association to its members (other than juveniles). This contingent availability — contingent on financial distress, petition to the Commissioner, approval by the Commissioner, and applicable to distress arising from losses of any kind, is entirely unrelated to what a bad debt reserve is for and how it operates.

The nonwithdrawable capital stock account was not a reserve or similar account within the meaning of the Regulations in effect in 1961 and 1962.⁵Rio Grande Building & Loan Association,supra, and like holdings denying bad debt deductions for funds left in undivided profit accounts, do not, as contended by the taxpayer, establish as an overriding test for determining whether an account is similar to a bad debt reserve that the funds therein are not available for dividends and thus provide additional protection for depositors. Those authorities point out that funds left in an undivided profit account are available for other association uses, including dividends, and do not protect the depositors against bad debts. They do not promulgate a principle that once funds are removed from undivided profits and become unavailable for dividends the account into which transferred is, regardless of its nature and purpose, an account...