Railway Express Agency v. Commissioner of Int. Rev.

• Decision Date: 19 July 1948
• Docket Number: No. 186,Docket 20793.,186
• Citation: 169 F.2d 193
• Parties: RAILWAY EXPRESS AGENCY, Inc. v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. RAILWAY EXPRESS AGENCY, Inc.
• Court: U.S. Court of Appeals — Second Circuit

169 F.2d 193 (1948)

RAILWAY EXPRESS AGENCY, Inc. v. COMMISSIONER OF INTERNAL REVENUE.

COMMISSIONER OF INTERNAL REVENUE v. RAILWAY EXPRESS AGENCY, Inc.

No. 186, Docket 20793.

Circuit Court of Appeals. Second Circuit.

July 19, 1948.

Floyd F. Toomey, of Washington, D. C. (Ellsworth C. Alvord and John P. Lipscomb, Jr., both of Washington, D. C., on the brief), for petitioner, Railway Express Agency, Inc.

Abbott M. Sellers, Sp. Asst. to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., and Sewall Key and A. F. Prescott, Sp. Assts. to Atty. Gen., on the brief), for respondent, Commissioner of Internal Revenue.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

These petitions for review, one brought by Railway Express Agency, Incorporated, and the other by the Commissioner of Internal Revenue, involve income and excess profits taxes for the years 1937 and 1938. Deficiencies in these taxes were originally determined by the Commissioner, but the Tax Court in a reasoned opinion, 8 T.C. 991, redetermined them at a lower figure, finding deficiencies in the income taxes of $49,384.08 and $39,509.44, and in the excess profits taxes of $47,579.28 and $28,356.05 for the years in question. The action by the Commissioner was taken in consequence of his ruling that the Agency in its returns had deducted excess amounts for depreciation, but the Agency after notice of the deficiency assessments then concluded that it had been in error in returning its income as a taxpayer and that in fact it was a mere agent for the railroads it served. Its petition for review hence brings before us the adverse decision of the Tax Court on this issue; since the parties are now agreed as to the amount by which the depreciation deductions, if material, shall be reduced, the original point of division has become submerged in the broader question as to the status, taxwise, of this corporation. The Commissioner's petition is directed to that part of the decision of the Tax Court which allows the Agency credit for undistributed profits in computing the surtax thereon for the year 1937 on the ground that distribution is prohibited by contract within the meaning of § 26(c) (1) of the Revenue Act of 1936, 26 U.S.C.A.Int.Rev.Acts, page 836.

The facts, most of which were stipulated, are set forth in detail in judge Disney's opinion, 8 T.C. 991, and we shall repeat here only those most material. The organization of this corporation by the railroads of the country took place in 1928 and 1929. Prior to that time a nationwide express service had been performed under uniform contracts with the railroads by the American Railway Express Company, an independent company formed as a result of the suggestion of the Federal Director General of Railroads in World War I for the organization of a single express service in place of the several theretofore existing. The uniform contracts with this company were to expire on February 28, 1929. During the period of operation under the contracts a committee of the Association of Railway Executives — the Uniform Express Contract Committee — represented the common interests of the railroads and prepared a detailed plan for the carrying on of the express business after the termination of these contractual relations. The plan as ultimately adopted provided for the organization of a new express company by the 86 named railroads which carried approximately 98 per cent of the gross express business on all railroads. The petitioner Railway Express Agency, Incorporated, is the product of this plan and was organized in Delaware pursuant thereto. It had an authorized capital stock of 1,000 shares without par value. The certificate of incorporation placed certain restrictions on the transfer of its stock which was allotted to these 86 railroads, on the basis of the express business done by them in the past, at a price of $100 a share. Subsequently, by reason of various changes, such as mergers and consolidations of some of its stockholders, the number of stockholders by September, 1938, had been reduced to 70 railroad companies, a number which has since remained constant.

The Agency has operated its express business under separate identical contracts with substantially all of the railroad companies in the United States. During the tax years in controversy over 400 railroads, including those which were stockholders, were parties with the Agency to such Express Operations Agreements. These agreements are effective to February 28, 1954. Each designated the Agency as the exclusive agent of the railroad for the conduct of the express transportation business and for the collection and disbursement and division of all revenue collected under the agreement. The Agency was, however, authorized to file tariffs and other rules and regulations with the Interstate Commerce Commission on its own behalf or on behalf of the railroads. Moreover, as between the Agency and the railroads, the former was liable for loss to its own property and for injury to its own employees and agents. Nothing in the agreement limited the right of the Agency to appoint and exercise control over its employees. Provision was made for the arbitration of disputes on request, resort to such arbitration being a condition precedent to any further action.

The terms of the agreements fixed the amounts payable to the contracting railroads as, in short, gross revenue less expenses. The agreements contemplated that all income and expenses, as defined therein, including depreciation, should be taken into account in arriving at the amount distributable to the railroads, each of which was to receive a proportionate share according to the amount of express business it had handled on its line. The allowed deductions were particularized. Thus the Agency was authorized to deduct from the moneys received by it certain items that were designated net income items, including appropriations from "net income" for investment in physical property. So, too, certain "surplus" items could be deducted; and comprehended within that category was "surplus set aside for investment in physical property."

In order to obtain funds for the purchase of the property of the American Railway Express Company the Agency had issued $32,000,000 of 5 per cent bonds under a trust indenture, wherein the Guaranty Trust Company of New York was trustee; and these bonds were sold to underwriters, who sold them to the public. The rights of the Agency under the Express Operations Agreements were pledged in the trust indenture as security for the payment of the bonds and interest thereon, as to which the Agency was solely liable. The indenture further provided that the Agency would not mortgage or pledge its rights under the agreements except in subordination to the lien of the instrument. The indenture made all indebtedness of the Agency subordinate to the bonds issued or to be issued thereunder. It contained an agreement on the part of the Agency not to modify the agreements with the railroads without the written consent of the trustee, as well as provisions for semiannual payments out of the rail transportation revenue into a sinking fund and, in case of default by the obligor, for operation or sale of the property for the benefit of the bondholders.

During 1937 and 1938, in determining rail transportation revenue, the Agency deducted from its income those charges and items of expense which were provided for in its agreements with the railroads. Included therein were deductions for depreciations of $2,308,642.09 and $2,136,209.41 respectively, computed in the manner and at the rates as ordered by the Interstate Commerce Commission. The balance it distributed among the railroads with which it had agreements. These depreciation allowances were claimed as deductions in its returns for 1937 and 1938 and were the occasion for the deficiency assessments referred to above. As now stipulated by the parties, the correct disallowance from each item is $383,994.07 and $259,305.31 respectively. In 1945 the Interstate Commerce Commission granted the Agency permission, retroactively to January 1, 1937, to account for depreciation charges on the basis found by the Bureau of Internal Revenue; but the Agency has as yet taken no action upon this permission in view of the pendency of these proceedings.

On this appeal the Agency takes the position that it is a creature of the railroads and, as such, acts as their agent in conducting, under uniform contracts, an express transportation business over their lines. It asserts that it was not the beneficial owner of any of the amounts it received, including those which it did not in fact distribute to the railroads during the years in issue. The argument is made that under the Express Operations Agreements it was accountable to the railroads for all its revenues, and, accordingly, that the income attributable to it by reason of the disallowance of deductions for depreciation is taxable to the railroads. As opposed to this, the Commissioner argues that the Agency had a real surplus by at least the amount of depreciation charged in excess of the amounts actually sustained, and that it should be...