Southwestern Electric Power Company v. United States

• Decision Date: 11 January 1963
• Docket Number: No. 45-58.,45-58.
• Parties: SOUTHWESTERN ELECTRIC POWER COMPANY (Formerly Southwestern Gas and Electric Company) v. The UNITED STATES.
• Court: U.S. Claims Court

312 F.2d 437 (1963)

SOUTHWESTERN ELECTRIC POWER COMPANY (Formerly Southwestern Gas and Electric Company) v. The UNITED STATES.

No. 45-58.

United States Court of Claims.

January 11, 1963.

Richard L. Arnold, Texarkana, Ark., for plaintiff; John M. Madison, Shreveport, La., and Stevenson, Dendtler & McCabe, Chicago, Ill., on the briefs.

Robert Livingston, Washington, D. C., with whom was Asst. Atty. Gen., Louis F. Oberdorfer, for defendant; Edward S. Smith and Philip R. Miller, Washington, D. C., on the brief.

LARAMORE, Judge.

This is an action to recover the amounts of income tax deficiencies and interest thereon, totaling $15,847.39, which the plaintiff was required by the Internal Revenue Service to pay for the calendar years 1947, 1948, 1949, and for the period January 1-October 20, 1950.

The legal question involved in this action is whether certain advertising expenses and certain legal and traveling expenses of the plaintiff during the respective periods constituted "ordinary and necessary expenses paid or incurred * * * in carrying on * * * the plaintiff's business," within the meaning of that phrase as used in section 23 (a) (1) (A) of the Internal Revenue Code of 1939, as amended 26 U.S.C. § 23 (a) (1) (A) (1952 Ed.).¹

A corollary question is whether by virtue of section 29.23(q)-1 of U.S. Treasury Department, Income Tax Regulations 111 (26 CFR § 29.23(q)-1 (1949 Ed.)), said advertising, legal and traveling expenses, or any of them were nondeductible from gross income under section 23(a) (1) (A), supra.

The Treasury Regulation in question provides in pertinent part that sums of money expended for lobbying purposes, the promotion or defeat of legislation, the exploitation of propaganda, including advertising other than trade advertising, and contributions for campaign expenses are not deductible from gross income.

The facts briefly summarized are as follows: The plaintiff, a Delaware corporation, had its principal business office, during the years involved, in the City of Shreveport, Louisiana. It was engaged in the generation, transmission, distribution and sale of electric power and energy in an area covering northeastern Texas, northwestern Louisiana, and a portion of southern and western Arkansas. In that area plaintiff, during the pertinent periods, furnished electric utility service at retail in approximately 154 cities, towns and unincorporated communities and in rural areas adjacent thereto. It also sold electric power to 3 municipalities and 13 rural electric co-operatives for resale. Plaintiff owned and operated various steam electric generating stations, electric distributing systems, and a transmission system.

Background for the present controversy was provided when the Congress of the United States, during the period between June 28, 1938, and March 2, 1945, authorized or approved the construction and operation by the Corps of Engineers, United States Army, under the control of the War Department, of 13 reservoir projects and hydroelectric power facilities located in the area that includes the States of Arkansas and Louisiana, those parts of the States of Kansas and Missouri lying south of the Missouri River basin and east of the 98th meridian, and those parts of the States of Texas and Oklahoma lying east of the 99th meridian and north of the San Antonio River basin. In addition, Congress during the same period authorized the Corps of Engineers to survey and report on the feasibility of 16 additional proposed reservoir projects and hydroelectric facilities in such area.

The territory served by the plaintiff (see finding 7(a)) is within the area described in finding 9. The authorized and proposed hydroelectric power projects referred to in finding 9 were all located or to be located in, or within transmission distance of, the territory served by the plaintiff. The aggregate hydroelectric generating capacity proposed to be installed in such Federal projects was about 2,000,000 kilowatts.

During the period in question, on the basis of the reports of the Army Engineers, plaintiff believed that the power generated at the Federal projects in the area would be sold to existing electric systems. However, under section 5 of the Act of December 22, 1944 (the Flood Control Act of 1944), 58 Stat. 887, the Secretary of the Interior was authorized to sell such power in wholesale quantities at rates to be approved by the Federal Power Commission, and to construct or acquire, from funds appropriated by Congress, transmission lines and related necessary facilities. The Southwestern Power Administration was designated as the marketing agent under section 5 of the Act of December 22, 1944, supra.²

In November of 1945 the Southwestern Power Administration issued a "Report on Comprehensive Plan of Power Distribution and Sales from Hydro-Electric Projects, as Authorized by Flood Control Act, December 1944 (H.R. 4485) in the Southwestern Region." This was a proposal for possible future action with respect to the construction and operation of a comprehensive electric system within a substantial portion of the southwestern area of the country. The Plan proposed the sale in wholesale quantities of firm power to public bodies, rural electric cooperatives, and privately owned companies.

The comprehensive plan was brought to the attention of plaintiff on or about February 2, 1946, and it was apparent that if the facilities embraced therein were constructed and operated, it would constitute a competitive system with that of plaintiff. The plaintiff was concerned that the cities and towns would decide to go into the power business and either build distribution systems or acquire those owned by plaintiff. The plaintiff considered this to be a serious threat to its business.

The plaintiff's concern was increased by reports it received to the effect that representatives of the Southwestern Power Administration had approached certain municipal authorities and had tried to interest them in public power and in substituting electric service from the Southwestern Power Administration for the electric service rendered by the plaintiff. In fact, during the periods involved in this case, the Southwestern Power Administration began furnishing electric service to three rural electric co-operatives which were located in plaintiff's service area and which had previously obtained power from the plaintiff.

In an attempt to develop a spirit of opposition toward the implementation of the Southwestern Power Administration's comprehensive plan, plaintiff began a series of advertisements in newspapers and magazines which circulated primarily in such service area. In their totality, these advertisements endeavored to make the following principal points:

"The Government, through the Southwestern Power Administration, was planning to spend $200,000,000 of the taxpayers\' money to build a power system that would duplicate the lines of electric light companies already serving more than 800,000 houses in Missouri, Kansas, Oklahoma, Arkansas, Louisiana, and Texas.

"The plaintiff was building to serve every future need of electric power in its territory. There was no need, and there never would be a need, for the Southwestern Power Administration to waste the taxpayers\' money for service already supplied by the plaintiff, a taxpaying business.

"The plaintiff and other electric power companies operating in the areas where Federal flood-control dams were located or to be located should be permitted to purchase and distribute any power generated at those projects, because such companies already had the lines and other distribution facilities.

"It is unfair for the Government to compete with electric power companies in the generation and distribution of electric power, because electric power companies are required to pay a fair return to their investors, to pay taxes, and to pay adequate interest on loans, whereas the Government does not meet such requirements.

"The Government shifts its losses to the taxpayers. In the power business, it can pretend to sell cheap power and cover up its losses.

"When the Government takes over enough things, socialism comes automatically. Socializing electric light and power is one of the first goals of people who want to push America down the hill to socialism.

"Government ownership of electric power companies is contrary to the American system of free business enterprise."

These advertising expenses are the same, and in part, are the subject of this litigation.

During the periods here involved, representatives of plaintiff, plaintiff's president, vice president, and general counsel, in cooperation with other electric power companies, also appeared before subcommittees of the Appropriations Committees of the House of Representatives and Senate of the United States. In these appearances an attempt was made to persuade said committees not to grant requests for funds to be used by the Southwestern Power Administration for purposes of the agency's comprehensive plan. In addition, an attempt was made to persuade committees not to grant Department of Agriculture requests for funds to be used by the Rural Electrification Administration in making loans to certain rural electric cooperatives for construction of steam electric generating stations and transmission lines. The attempt to dissuade the appropriations committees was based largely upon the legality of proposed appropriations.

Plaintiff, in addition to advertising expenses and travel expenses, incurred and paid legal fees to its general counsel, Richard L. Arnold, as compensation for his services in preparing and submitting legal opinions to subcommittees and expenses incident to his attending committee hearings for the purpose of giving testimony.

Plaintiff timely filed its corporation income tax returns for the calendar years 1947, 1948, 1949, and for a part of 1950, and paid the taxes shown to be due. After examination, the Internal Revenue...