T.C. Memo. 2000-40
UNITED STATES TAX COURT
TOYOTA TOWN, INC., A CALIFORNIA CORPORATION, ET AL.,1
Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 4959-95, 4960-95, Filed February 8, 2000.
4961-95, 22741-95,
1254-96, 1255-96,
1256-96.
Bruce I. Hochman and Frederic J. Adam (specially
recognized), for petitioners.
Nancy C. McCurley, for respondent.
1
Cases of the following petitioners are consolidated
herewith: Country Nissan, A California Corporation, docket No.
4960-95; Quality Motor Cars of Stockton, A California
Corporation, docket No. 4961-95; Robert S. and Christina Zamora,
docket No. 22741-95; Bob Wondries Motors, Inc., d.b.a. Wondries
Ford, docket No. 1254-96; Wondries Nissan, Inc., docket No. 1255-
96; and Bob Wondries Associates, Inc., d.b.a. Wondries Toyota,
docket No. 1256-96.
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MEMORANDUM OPINION
GALE, Judge: Respondent determined deficiencies in
petitioners’ Federal income taxes as follows:
Taxable Year Ended Nov. 30
Petitioner 1991 1992 1993
Toyota Town, $8,812 $9,535 $6,762
Inc.
Country Nissan 4,432 4,444 4,373
Quality Motor
Cars of -- 2,429 2,746
Stockton
Bob Wondries
Motors, Inc., -- 6,810 3,457
d.b.a.
Wondries Ford
Wondries
Nissan, Inc. -- 4,131 5,470
Bob Wondries
Motors, Inc., -- 6,683 12,967
d.b.a.
Wondries
Toyota
Respondent also determined deficiencies in the Federal
income taxes of petitioners Robert S. and Christina Zamora for
the taxable years ended December 31, 1992 and 1993, of $212 and
$6,520, respectively.
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These cases were consolidated for trial, briefing, and
opinion.2 Petitioners include the following corporations:
Toyota Town, Inc.; Country Nissan, A California Corporation;
Quality Motor Cars of Stockton, A California Corporation; Bob
Wondries Motors, Inc., d.b.a. Wondries Ford; Wondries Nissan,
Inc.; and Bob Wondries Associates, Inc., d.b.a. Wondries Toyota;
as well as individual petitioners Robert S. and Christina Zamora
(Zamoras), who filed joint returns for the years in issue. The
Zamoras owned, during the years in issue, approximately 48
percent of the issued and outstanding shares of Wondries
Chevrolet, Inc. (Wondries Chevrolet), an S corporation within the
meaning of section 1361(a).3 For convenience, we shall
hereinafter refer to Wondries Chevrolet and the C-corporation
petitioners collectively as petitioners.
The issue for decision is the proper period for petitioners
to deduct insurance premium expense incurred in connection with
sales of extended warranty agreements to their customers.
2
In docket No. 4959-95, the adjustment relating to the 1991
taxable year is not in dispute. In docket No. 4960-95 only the
adjustments relating to the 1992 and 1993 taxable years have been
consolidated, and the adjustment relating to the 1991 taxable
year is not in dispute. In the remaining docket Nos., 4961-95,
22741-95, 1254-96, 1255-96, and 1256-96, all adjustments are
attributable to the common issue in dispute.
3
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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These cases were submitted fully stipulated pursuant to Rule
122. Our findings of fact are based upon the parties’
stipulation and the attached exhibits, which are incorporated by
this reference. The parties have stipulated that any appeal in
this matter lies to the U.S. Court of Appeals for the Ninth
Circuit.
Background
During the years in issue, petitioners were engaged in
business as retail automobile dealers, in connection with which
they sold extended warranty agreements (EWA’s) to certain retail
purchasers of new and used motor vehicles. Under such EWA’s,
petitioners agreed, in exchange for a single lump-sum fee, to
replace or repair, or to reimburse for the repair of, various
components of a vehicle that failed during an extended multiyear
period.4 After a customer agreed to purchase a vehicle, the
customer was informed of the option to purchase an EWA. The
customer was free to accept or decline and could elect coverages
that varied with respect to years, mileage, or items covered.
The fee or price paid to petitioners by their customers for an
EWA depended upon the coverages selected.
An EWA expressly provides that it is a “SERVICE CONTRACT
4
The coverage period could be denominated 5, 6, or 7 years
or be further restricted by a stated mileage limit, in which case
the coverage would terminate upon the first of either to elapse.
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* * * BETWEEN THE DEALER [i.e., each petitioner] AND YOU [the
vehicle purchaser]” and is “NOT AN INSURANCE POLICY". An EWA
further provides that “Dealer in regards to this contract is
acting as a Principal and not as an Agent on behalf of any
insurer.” An EWA also states: “Issuing Dealer has insurance
with Western General Insurance Co., * * * – a Licensed Insurer.”
Finally, an EWA provides:
NOTICE: If a Breakdown Claim has been filed with
the Issuing Dealer who has failed to pay the claim
within sixty (60) days after proof of loss has been
filed with the Issuing Dealer, you the Service Contract
Purchaser shall also be entitled to make a Direct Claim
against the Issuing Dealer’s insurance company, Western
General Insurance Company * * *
During the years in issue, each petitioner sold EWA’s
pursuant to an agreement (Western General Agreement) with the
Western General Insurance Co. of Encino, California (Western
General), under which Western General assumed petitioners’
liabilities under the EWA’s in exchange for a single lump-sum
payment with respect to each EWA, referred to in the agreements
as an “insurance premium and policy fee”. Under the Western
General Agreement, Western General agreed “to issue and maintain
individual insurance policy coverage at DEALER’S [i.e., each
petitioner’s] expense which shall insure the DEALER for covered
costs of repairs and/or replacements incurred by the DEALER and
covered under the * * * EWA”. Each petitioner agreed to sell
EWA’s only through the forms provided by Western General and to
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follow the underwriting, rating, instructions, and procedures
outlined by Western General. Each petitioner further agreed to
report to Western General every 10 days the EWA’s sold during the
preceding 10 days and to remit “the insurance premium as provided
in * * * [Western General’s] rate chart/manual”.5
Each EWA sold to a customer included an individual Motor
Vehicle Policy of Mechanical Insurance (Vehicle Policy) naming a
petitioner as the insured and listing a covered vehicle, EWA
purchaser, and (multiyear) coverage period corresponding to the
EWA. A Vehicle Policy provides that the premium “shall become
fully earned” by Western General upon inception of the coverage;
however, the Vehicle Policy subsequently provides exceptions
under which a pro rata refund of the premium will be made,
including an election by the insured (i.e., each petitioner) to
cancel within 90 days after inception or the repossession of the
covered vehicle.
Petitioners were not affiliated with or related to Western
General in any way.
Once a petitioner remitted the premium to Western General,
the risk of loss on the related EWA passed entirely to Western
General. Upon payment of the premium, Western General was solely
responsible to the vehicle purchaser for the cost of repairs
5
The parties have stipulated that petitioners in fact made
all such payments to Western General within 60 days after an EWA
was purchased by one of petitioners’ customers.
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covered by the EWA and was obligated to reimburse the purchaser
for claims covered by the EWA provided the purchaser followed the
proper claims procedures. The purchaser could obtain the repairs
at a repair facility other than the Dealership from which the
vehicle was purchased, so long as the purchaser complied with the
terms of the EWA, which provides:
In the event of a Breakdown [i.e., the failure of
a covered part], you [i.e., the EWA purchaser] must
follow this procedure.
1. Return your vehicle to the Dealer [i.e., each
petitioner]. If this is not possible or practical, you
must call his Claims Service (insurer) [i.e., Western
General] for instructions * * *
Petitioners are accrual method taxpayers. For the years in
issue, petitioners elected to report their income from the EWA’s
using the “service warranty income method” set forth in Rev.
Proc. 92-98, 1992-2 C.B. 512, 514. Rev. Proc. 92-98, supra,
permits certain accrual method sellers of motor vehicles and
other durable consumer goods that receive a lump-sum payment
(advance payment) from the sale of a multiyear service warranty
contract to defer recognition of a portion of the advance payment
generally over the life of the service warranty obligation. The
portion of the advance payment permitted to be deferred under
Rev. Proc. 92-98, supra, is the amount paid by the seller (within
60 days of receipt) to an unrelated third party for insurance
costs associated with a policy insuring the seller’s obligations
under the service warranty contract (the qualified advance
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payment amount). (The excess of the advance payment over the
qualified advance payment amount is included in the seller’s
income in the taxable year of receipt.) The revenue procedure
provides that the qualified advance payment amount, as augmented
by certain imputed income equal to the interest cost of the
income deferral, can be deferred and included ratably in income
over the shorter of (1) the period beginning in the taxable year
the advance payment is received and ending when the service
warranty contract terminates, or (2) a 6-taxable-year period
beginning in the taxable year the advance payment is received.6
For purposes of computing the deferral period and the “interest-
equivalent” imputed income, all advance payments for service
warranty contracts sold during the taxable year are effectively
treated as if they were entered into, and payment received, on
the first day of the taxable year.
Rev. Proc. 92-98, supra, further provides that an election
to use the service warranty income method is not available to a
taxpayer unless the taxpayer uses the proper method of accounting
for amounts paid or incurred for insurance costs that cover the
taxpayer’s risks under the service warranty contracts, as
outlined in a revenue procedure issued simultaneously with Rev.
Proc. 92-98, supra; namely, Rev. Proc. 92-97, 1992-2 C.B. 510.
6
The series of level payments thus generated is designed to
equal the present value of the qualified advance payment amount.
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See Rev. Proc. 92-98, secs. 9, 4.04, 1992-2 C.B. at 517, 513.
With respect to accounting for insurance costs, Rev. Proc. 92-97,
supra, provides that lump-sum amounts, paid in advance for
multiyear insurance policies to insure a consumer durable goods
seller’s obligations to customers under multiyear warranty
contracts sold to them, must be capitalized and prorated or
amortized over the life of the insurance policy. See Rev. Proc.
92-97, sec. 2.07, 1992-2 C.B. at 511.
During the years at issue, in accordance with Rev. Proc. 92-
98, supra, petitioners reported as income in the year of receipt
the difference between the total amount received from the sale of
EWA’s and the total amount paid to Western General. The
remaining proceeds from the sale of EWA’s--i.e., the amounts paid
to Western General to insure petitioners’ risks under the EWA’s,
or qualified advance payment amounts--were, as increased by an
interest-equivalent factor, included in income ratably over the
terms of the EWA’s. Pursuant to Rev. Proc. 92-98, supra, for
purposes of computing the income required to be included each
year in connection with the qualified advance payment amount,
petitioners treated the proceeds from the sale of EWA’s as having
been received on the first day of the taxable year in which an
EWA was sold.
Petitioners took deductions for the amounts paid to Western
General for assumption of the EWA liabilities by capitalizing
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such amounts and amortizing them in a manner which departed in
one respect from the method prescribed in Rev. Proc. 92-97,
supra. Whereas Rev. Proc. 92-97, supra, provides that a seller’s
payment for a multiyear insurance policy covering the seller’s
obligations under a service warranty contract must be amortized
over the actual life of the policy, petitioners computed their
amortization deductions using an accounting convention under
which the premium payment and policy inception were deemed to
have occurred on the first day of the taxable year in which the
policy was obtained, irrespective of the actual date of payment
and policy inception. This methodology, which resembled the
convention prescribed in Rev. Proc. 92-98, supra, for the
recognition of income from the qualified advance payment amount,
resulted in petitioners’ taking amortization deductions in the
first taxable year of a policy’s inception equal to a full year’s
worth of amortization, without regard to the actual date of
payment and policy inception. In effect, this increase in the
first year’s amortization deduction caused it, as well as each
ensuing year’s deduction, to match the ratable portion of the
deferred EWA income required to be included pursuant to the terms
of Rev. Proc. 92-98, supra. As a result, the “net” income
recognized by petitioners consisted only of the excess of the
aggregate EWA prices charged to petitioners’ customers over the
aggregate premiums paid by petitioners to Western General in the
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year of inception of an EWA, plus the imputed income represented
by the interest-equivalent factor in each of the years of the
contract term.
In the notices of deficiency, respondent determined that the
service warranty income reported by petitioners had been computed
incorrectly for the years in issue.7 Respondent contends that
petitioners incorrectly computed their deduction for insurance
costs in the year a policy was purchased by taking a full year’s
worth of amortization rather than amortization measured from the
actual date of the policy’s inception and payment of the premium.
In the absence of information regarding the actual dates of sale
of EWA’s, respondent recomputed petitioners’ amortization
deductions on the assumption that the transactions had occurred
ratably over the years in issue.
In their petitions, petitioners alleged that respondent
erred in recomputing the amortization deductions, contending that
their amortization of insurance expense should be computed using
the same methodology as that used in computing receipt of EWA
income; that is, the convention deeming qualified advance payment
amounts as having been received on the first day of the taxable
year should likewise apply for amortization of insurance expense,
7
In the case of the Zamoras, the deficiency was determined
on the basis of the Zamoras’ distributive share of comparable
adjustments made to the warranty income of their S corporation,
Wondries Chevrolet.
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so that payments for insurance of the warranty risk should be
deemed to have occurred on the first day of the taxable year for
all such payments, regardless of when the payments were actually
made.
Discussion
I. Matters Properly Raised
As a preliminary matter, we must first decide which issues
have been properly raised in these cases. In addition to the
proper period for amortizing insurance expense, which was
challenged in respondent’s determination and was the basis on
which petitioners assigned error to that determination in their
petitions, petitioners now argue, for the first time on brief,
that the EWA proceeds that were remitted to Western General are
not income to petitioners, on the basis of the “claim of right”
doctrine and income attribution principles. Should petitioners
prevail with respect to these contentions, they maintain that
they are entitled to refunds for overpayments in the years at
issue. Respondent objects to our consideration of petitioners’
claims that the amounts paid to Western General are not income to
them, on the grounds that respondent did not receive “fair
warning” of petitioners’ intention to raise this issue.
We believe the inclusion of the amounts paid to Western
General in petitioners’ income is not an issue properly before us
for two reasons. First, petitioners fully conceded this issue
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before submission of these cases. Petitioners have stipulated
that the portion of the EWA proceeds that was paid over to
Western General “was * * * properly included in [petitioners’]
income over the terms of the EWA in accordance with Revenue
Procedure 92-98". (Emphasis added.) Second, to the extent there
is any conceivable ambiguity in this stipulation (and we do not
suggest that there is), we believe that respondent is correct
that he did not receive “fair warning” of petitioners’ intention
to raise any issue concerning income inclusion.
As a pleading, the petition has as its purpose “to give the
parties and the Court fair notice of the matters in controversy”.
Rule 31(a). Generally speaking, issues not raised in the
assignments of error in the petition are deemed conceded. See
Rule 34(b)(4). Whether issues not raised in the pleadings will
nonetheless be considered is a matter for the Court’s discretion,
taking into account the prejudice to the opposing party.
The rule that a party may not raise a new issue on
brief is not absolute. Rather, it is founded upon the
exercise of judicial discretion in determining whether
considerations of surprise and prejudice require that a
party be protected from having to face a belated
confrontation which precludes or limits that party’s
opportunity to present pertinent evidence. * * * [Ware
v. Commissioner, 92 T.C. 1267, 1268 (1989), affd. 906
F.2d 62 (2d Cir. 1990).]
It is clear that petitioners did not provide notice in their
petitions of an intention to contest the inclusion in income of
the amounts paid to Western General. The error alleged in the
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petitions, which are substantially identical, was respondent’s
failure to permit consistent treatment of service warranty income
and associated insurance expense. As phrased in the petitions,
“The narrow issue involved herein is the consistent treatment of
the service warranty income and the offsetting premium expense”.
There were no claims of overpayments. No amendments of the
pleadings have been sought or granted. The parties agreed to
submit these cases fully stipulated in accordance with Rule 122.
Approximately 2 weeks before submission of the cases, petitioners
served a trial memorandum upon respondent in which they listed
the sole issue in the cases as: “What is the proper tax period
for deducting amounts paid by a retail auto dealer in connection
with its obligations to its customers under extended warranty
agreements?”.8
We believe respondent justifiably concluded that petitioners
were not contesting the inclusion in their income of amounts paid
to Western General. We further find that respondent would be
prejudiced if petitioners were permitted to raise this issue for
the first time on brief in fully stipulated cases. “‘Of key
importance in evaluating the existence of prejudice is the amount
8
Although in the analysis section of their trial memorandum
petitioners at one point characterize the amounts they paid to
Western General as “phantom income” in which they have “no
interest”, we do not believe this single reference in an extended
discussion constitutes adequate notice that petitioners intended
to raise “claim of right” or income attribution issues.
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of surprise and the need for additional evidence on behalf of the
party opposed to the new position.’” Sundstrand Corp. v.
Commissioner, 96 T.C. 226, 347 (1991) (quoting Pagel, Inc. v.
Commissioner, 91 T.C. 200, 211-212 (1988), affd. 905 F.2d 1190
(8th Cir. 1990)). Because the parties agreed to submit these
cases fully stipulated, respondent made his decisions regarding
what evidence to proffer on the basis of the pleadings and the
stipulations, including the stipulation that the amounts paid to
Western General were “properly” included in petitioners’ income.
To be confronted with this new issue after the evidentiary record
is closed is prejudicial to respondent. Accordingly, we will not
consider whether the amounts paid to Western General were not
includable in petitioners’ income on the basis of the “claim of
right” doctrine or income attribution principles. Instead, we
shall consider only the issue that was properly raised; namely,
the appropriate period for deducting the amounts paid by
petitioners to a third-party insurer to assume petitioners’ risks
under the EWA’s that petitioners sold to their customers.
II. Proper Period To Deduct Amounts Paid for Multiyear Insurance
A. Petitioners’ Arguments
To support their position that respondent’s determinations
are erroneous, petitioners argue that respondent abused his
discretion by requiring petitioners to change their method of
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accounting9 from one that clearly reflects income to a method
that distorts income, or, alternatively, that the qualified
advance payment amounts should be fully deductible in the year
paid to Western General. We consider each in turn.
B. Abuse of Discretion
1. In General
Petitioners contend that respondent’s effort to limit their
amortization deduction for insurance costs to a pro rata portion
of the premium in the first year, measured by the portion of the
year for which the policy was actually in force, constitutes an
abuse of discretion. In petitioners’ view, the method of
accounting for insurance costs for multiyear policies that they
employed, which involved deducting a full year’s worth of premium
in the first year, regardless of the actual date of commencement
of coverage, effects a clear reflection of income because it more
closely matches expense with associated income-–given the
requirement of Rev. Proc. 92-98, 1992-2 C.B. 512, that the
corresponding income be recognized under a convention that treats
it as received on the first day of the year without regard to
actual receipt. The method sought by respondent, petitioners
9
The parties do not dispute that the timing of petitioners’
deductions for the amounts paid to Western General constitutes a
“method of accounting” within the meaning of sec. 446. See sec.
1.446-1(a)(1), Income Tax Regs. (“The term ‘method of accounting’
includes not only the over-all method of accounting of the
taxpayer but also the accounting treatment of any item.”).
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contend, distorts income because it limits the deduction of the
expense associated with an EWA to a partial year’s portion when a
full year’s portion of associated income must be recognized
pursuant to Rev. Proc. 92-98, supra. Petitioners summarize their
argument as follows:
Because petitioner’s method of accounting is an
acceptable method which clearly reflects its income,
Respondent is not allowed to require petitioner to
change its method of accounting. Prabel v.
Commissioner, * * * [91 T.C. 1101, 1112 (1988), affd.
882 F.3d 880 (3d Cir. 1989)]; Hallmark Cards, Inc. v.
Commissioner, * * * [90 T.C. 26, 31 (1988)]. To force
a change from a method which clearly reflects
excessive[10] income to a method which materially
distorts income, is an abuse of discretion. Molsen v.
Commissioner, 85 T.C. 485, 498, 509 (1985). * * *
Petitioners’ position, in effect, is that they may report
their income from EWA’s in accordance with the provisions of Rev.
Proc. 92-98, supra, but with respect to the computation of
deductions arising from EWA transactions, they are free to
disregard the method outlined in Rev. Proc. 92-97, 1992-2 C.B.
510, and devise a method that more closely matches the income and
expense associated with the qualified advance payment amount.
Petitioners are wrong, for at least two reasons. First, it
is not an abuse of discretion for the Commissioner to establish
10
Petitioners’ reference to “excessive” income is
apparently an allusion to their belief that the imputed income
required to be recognized under Rev. Proc. 92-98, 1992-2 C.B.
512, is not appropriate.
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reasonable conditions upon the use of an accounting method that
has been established administratively. Second, even disregarding
any authority of the Commissioner to impose conditions upon the
use of an administratively established accounting method,
petitioners are not entitled to use the amortization method they
have employed because it contravenes the regulations.
2. Reasonable Administrative Conditions
Petitioners describe the instant cases as ones where
respondent is attempting to “force” petitioners to change from a
method of accounting which clearly reflects income to one which
does not. We disagree with this characterization. Respondent
has not attempted to “force” a change in petitioners’ accounting
methods. Rather, the Commissioner, relying upon his authority
under section 446(b), administratively established in Rev. Proc.
92-98, supra, a method of accounting for certain prepaid services
income of accrual basis taxpayers engaged in the sale of
multiyear service warranty contracts for which third-party
insurance is obtained. Petitioners elected this method, which
permits deferral of a portion of the prepaid services income
(equal to the amount which is paid over to a third party to
assume the risk under the warranty contracts).
The Commissioner imposed certain conditions, however, upon a
taxpayer’s eligibility to elect the method provided in Rev. Proc.
92-98, supra, including specifically the requirement that an
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electing taxpayer account for the insurance expense associated
with the warranty contracts under the method described in Rev.
Proc. 92-97, supra. Petitioners disregarded this requirement and
used a different method to account for insurance expense.
Petitioners effectively argue that they are entitled to do so
because their method of amortizing insurance expense, which
treats the coverage period as if it commenced on the first day of
the taxable year regardless of the actual date, results in better
matching with the prepaid income that is deferred under Rev.
Proc. 92-98, supra, since such income is recognized under a
convention that likewise deems all amounts received on the first
day of the taxable year regardless of actual date. Because of
the matching achieved under their method, petitioners contend it
clearly reflects income while the method sought by respondent
does not.
Petitioners may not avail themselves of the benefits of
deferral provided in Rev. Proc. 92-98, supra, without adhering to
the conditions imposed by the Commissioner. See Mulholland v.
United States, 28 Fed. Cl. 320, 344 (1993) (taxpayers’ failure to
adhere to conditions of a revenue procedure renders them
ineligible for its benefits), affd. 22 F.3d 1105 (Fed. Cir.
1994). Rev. Proc. 92-98, supra, is the only authority cited by
petitioners for the method which defers recognition of a portion
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of a prepayment for a multiyear warranty agreement.11 Absent
Rev. Proc. 92-98, supra, the Commissioner generally would have
discretion under section 446(b) to deny taxpayers the right to
defer prepaid services income until the periods when related
costs will be incurred and taken into account. See Schlude v.
Commissioner, 372 U.S. 128 (1963); American Auto. Association v.
United States, 367 U.S. 687 (1961); Automobile Club of Michigan
v. Commissioner, 353 U.S. 180 (1957); RCA Corp. v. United States,
664 F.2d 881, 885-888 (2d Cir. 1981); Johnson v. Commissioner,
108 T.C. 448, 491-492 (1997), affd. in part, revd. in part and
remanded 184 F.3d 786 (8th Cir. 1999); see also Hinshaw’s, Inc.
v. Commissioner, T.C. Memo. 1994-327 (requiring recognition of
prepayment for extended warranty services in year of receipt, in
circumstances nearly identical to instant cases). Thus, the
basis for deferral that petitioners claim is only available to
them if they meet the conditions of eligibility. See Mulholland
v. United States, supra. It is not an abuse of discretion for
respondent to impose as a condition on the election of the method
in Rev. Proc. 92-98, supra, the requirement that petitioners use
the method in Rev. Proc. 92-97, supra, to account for their
11
Petitioners attempted to advance the argument on brief
that the amounts paid to Western General were not income to them
at all. We concluded, supra, that this issue was not properly
raised. In any event, such an argument offers no basis for the
deferral of income; it concerns exclusion of income, not
deferral.
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insurance expense, since this condition, as discussed more fully
below, does no more than require adherence to existing
regulations. We think the Commissioner’s broad discretion to
determine whether a method of accounting clearly reflects income
under section 446(b), see Thor Power Tool Co. v. Commissioner,
439 U.S. 522 (1979); Commissioner v. Hansen, 360 U.S. 446, 467
(1959), coupled with the requirement in section 446(e) that the
Commissioner’s consent be secured for any change in method,
encompasses the authority to impose the condition at issue
herein.
Petitioners’ argument that their method of accounting for
insurance expense produces superior matching of income and
related expense is unavailing. Matching of income and related
expense does not necessarily result in a clear reflection of
income for tax purposes. See Thor Power Tool Co. v.
Commissioner, supra at 543. A prepayment for services to be
performed in the future must be recognized when received, even
though this would mismatch expenses and revenues. See American
Auto. Association v. United States, supra; Automobile Club of
Michigan v. Commissioner, supra. Absent Rev. Proc. 92-98,
supra, existing law would require an even greater mismatch of EWA
income and associated insurance expense than the “distortion”
that petitioners complain is produced by Rev. Procs. 92-98 and
92-97, supra. Existing law would require the recognition of the
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entire amount of EWA income in the year of receipt without regard
to the period in which related insurance expense would be
deferred. See Schlude v. Commissioner, supra; American Auto.
Association v. United States, supra; Automobile Club of Michigan
v. Commissioner, supra; Johnson v. Commissioner, supra;
Hinshaw’s, Inc. v. Commissioner, supra. The Commissioner acted
within his authority under section 446(b) to allow taxpayer-
favorable deferral of income in Rev. Proc. 92-98, 1992-2 C.B.
512; the Commissioner is not required to make the further
concession of accelerating deductions beyond the requirements of
existing law.
3. Compliance With Regulations
Relying on Prabel v. Commissioner, 91 T.C. 1101 (1988), and
Hallmark v. Commissioner, 90 T.C. 26 (1988), petitioners argue
that respondent may not require petitioners to change their
current method because it is “an acceptable method which clearly
reflects * * * [petitioners’] income”. Petitioners’ reliance is
misplaced. Prabel and Hallmark hold that the Commissioner may
not disturb a taxpayer’s method of accounting that is
specifically authorized in the Internal Revenue Code or income
tax regulations. The method used by petitioners to amortize the
amounts paid to Western General, by contrast, violates the
regulations.
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For accrual basis taxpayers such as petitioners, a liability
is incurred in the taxable year in which all events have occurred
that establish the fact of the liability, the amount of the
liability can be determined with reasonable accuracy, and
economic performance has occurred with respect to the liability.
See secs. 1.446-1(c)(1)(ii)(A), 1.461-1(a)(2), Income Tax Regs.
With respect to economic performance, the regulations provide
that where the liability arises out of the provision of insurance
to the taxpayer, economic performance occurs when payment is made
to the insurer. See sec. 1.461-4(g)(5), Income Tax Regs.
Section 1.461-1(a)(2), Income Tax Regs., further provides
that while a liability is generally taken into account for
Federal income tax purposes in the taxable year in which it is
incurred, the Internal Revenue Code and income tax regulations
provide exceptions to the general rule, including where
capitalization is required.
Applicable provisions of the Code, the Income Tax
Regulations, and other guidance published by the
Secretary prescribe the manner in which a liability
that has been incurred is taken into account. For
example, * * * under section 263 or 263A, a liability
that relates to the creation of an asset having a
useful life extending substantially beyond the close of
the taxable year is taken into account in the taxable
year incurred through capitalization (within the
meaning of § 1.263A-1(c)(3)), and may later affect the
computation of taxable income through depreciation or
otherwise over a period including subsequent taxable
years, in accordance with applicable Internal Revenue
Code sections and guidance published by the Secretary.
* * * [Sec. 1.461-1(a)(2)(i), Income Tax Regs.]
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A prepayment for multiyear insurance coverage creates an asset
having a useful life longer than a taxable year, which must be
capitalized. See Higginbotham-Bailey-Logan Co. v. Commissioner,
8 B.T.A. 566, 577 (1927); sec. 1.461-4(g)(8), Example (6), Income
Tax Regs.; see also USFreightways Corp. v. Commissioner, 113 T.C.
___ (1999); Johnson v. Commissioner, supra at 488; Hinshaw’s,
Inc. v. Commissioner, T.C. Memo. 1994-327. The prepaid insurance
is an intangible, and its coverage period gives it a determinable
useful life, making it eligible for a “depreciation allowance”.
Sec. 1.167(a)-3, Income Tax Regs. The rules for computing the
proper period for a depreciation allowance are provided in
section 1.167(a)-10(b), Income Tax Regs., which states in
relevant part:
(b) The period for depreciation of an asset shall
begin when the asset is placed in service and shall end
when the asset is retired from service. A
proportionate part of one year’s depreciation is
allowable for that part of the first and last year
during which the asset was in service. * * *
In general, “an asset is ‘placed in service’ for depreciation
purposes when it is acquired and available for use.” Clairmont
v. Commissioner, 64 T.C. 1130, 1136 (1975), affd. without
published opinion 538 F.2d 332 (8th Cir. 1976). Petitioners’
claim of a full year’s amortization in the first year that a
multiyear insurance policy is acquired or placed in service,
without regard to when during the year the policy was in fact
- 25 -
placed in service, directly contravenes the rule in section
1.167(a)-10(b), Income Tax Regs., which allows only a
“proportionate part of one year’s depreciation” in the first and
last years of a period of service. We have so held in similar
circumstances where the taxpayer sought to claim a full year’s
depreciation for assets placed in service at any time during the
first 5 months of the taxable year. See Clairmont v.
Commissioner, supra at 1136.
Petitioners cite no authority for their method of
amortization, other than to claim that, by precisely matching the
recognition of the deferred insurance expense with the
recognition of the deferred income permitted in Rev. Proc. 92-98,
supra, for their EWA’s, they have effected a clear reflection of
income, which respondent may not disturb. However, a method of
accounting that is “plainly inconsistent” with valid regulations
does not clearly reflect income within the meaning of section
446(b). Thor Power Tool Co. v. Commissioner, 439 U.S. at 533;
see Van Raden v. Commissioner, 71 T.C. 1083, 1105 (1979), affd.
650 F.2d 1046 (9th Cir. 1981).
4. Whether Petitioners Purchased Insurance
Petitioners also argue that the agreement they entered with
Western General did not constitute insurance-–specifically, that
petitioners’ liability to Western General did not arise out of
the provision of insurance and therefore the payments to Western
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General neither created a capital asset nor required
amortization. Petitioners employ the contention that they did
not purchase insurance from Western General both in an effort to
avoid the dictates of the foregoing capitalization rules and as
the basis for their alternative argument that the payments to
Western General were fully deductible in the year paid.
Nevertheless, the record contradicts petitioners’ contention
that the arrangement with Western General did not constitute the
provision of insurance to them. In their petitions, petitioners
assert as a fact that they managed the risks associated with the
future obligations they assumed under the EWA’s “by obtaining
commercial insurance coverage therefor from an unrelated third-
party insurer, Western General Insurance Co.”. Because
petitioners did not dispute the nature of their arrangement with
Western General as constituting the purchase of insurance until
after submission of these cases fully stipulated, the record with
respect to this issue is not exhaustive. However, the available
evidence belies petitioners’ claim. First, petitioners have
stipulated that the amounts paid to Western General were for
insurance costs. Specifically, petitioners stipulated that “All
amounts paid to Western General during the years at issue by
* * * petitioners constitute qualified advance payment amounts.”
Rev. Proc. 92-98, 1992-2 C.B. at 513, to which reference is
repeatedly made in the stipulations, defines the term “qualified
- 27 -
advance payment amount” as “the portion of an advance payment
received by a taxpayer under a multi-year service warranty
contract that is paid by that taxpayer to an unrelated third
party * * * for insurance costs associated with a policy insuring
that taxpayer’s obligations under the contract”. Moreover, the
EWA’s between petitioners and their customers warrant that the
“Issuing Dealer has insurance with Western General Insurance Co.,
* * *-–a Licensed Insurer.” The Western General Agreement
entered into by each petitioner and Western General states that
Western General agrees to “issue and maintain individual
insurance policy coverage at DEALER’S [i.e., each petitioner’s]
expense which shall insure the DEALER for covered costs of
repairs and/or replacements incurred by the DEALER and covered
under the * * * [EWA]” and that each petitioner agrees to remit
to Western General “the insurance premium as provided in its rate
chart/manual”.
In addition to the foregoing admissions, stipulations, and
agreement terms, the evidence of the substance of petitioners’
arrangements with Western General supports the conclusion that
petitioners’ liability to Western General arose from the
provision of insurance. The regulations which define “economic
performance” in the case of a liability for insurance provided to
the taxpayer further provide that “insurance” for this purpose
“has the same meaning as is used when determining the
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deductibility of amounts paid or incurred for insurance under
section 162.” Sec. 1.461-4(g)(5)(ii), Income Tax Regs. The
arrangements between petitioners and Western General involved an
insurance risk (namely, the risk of loss associated with the
liability assumed by the seller of an EWA), the shifting of that
risk from each petitioner to Western General (as the parties have
stipulated that the risk of loss under the EWA’s passed from
petitioners to Western General once petitioners made payment to
Western General), and the distribution or pooling of that risk
(since the record establishes that Western General assumed the
risks of multiple sellers of EWA’s). Thus we believe petitioners
purchased “insurance” from Western General for purposes of
section 162. Cf. Sears, Roebuck & Co. v. Commissioner, 96 T.C.
61, 100-101 (1991), affd. in part, revd in part and remanded on
another issue 972 F.2d 858 (7th Cir. 1992). We also note that
applicable State law requires retail automobile dealers, such as
petitioners, that sell vehicle service contracts incident to
automobile sales either to purchase insurance covering their
liabilities under such contracts or to become insurers subject to
the provisions of the California Insurance Code and regulation by
the California Department of Insurance. See Cal. Ins. Code sec.
116(c) (West 1993); Clemens v. American Warranty Corp., 238 Cal.
Rptr. 339, 344-345 (Ct. App. 1987). Petitioners state on brief
that they are not in the insurance business.
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On this record, petitioners have failed to show error in
respondent’s determination insofar as it is premised on the
conclusion that petitioners purchased insurance from Western
General.
Moreover, in Hinshaw’s, Inc. v. Commissioner, T.C. Memo.
1994-327, we held in virtually identical circumstances that the
prepayment of a multiyear insurance policy covering the
taxpayer’s obligations under a multiyear vehicle service contract
is not deductible in the year of payment but must be amortized
over the life of the coverage. We reasoned that the taxpayer
acquired a long-term asset by purchasing insurance covering a
period greater than 1 year and that, since the taxpayer benefited
from the coverage for more than 1 year, the cost must be
capitalized. See id.; see also Johnson v. Commissioner, 108 T.C.
at 488.12
Petitioners attempt to distinguish Hinshaw’s, Inc. v.
Commissioner, supra, on the basis that the “policies” obtained
12
In Johnson v. Commissioner, 184 F.3d 786 (8th Cir. 1999)
affg. in part, revg. in part and remanding 108 T.C. 448 (1997),
the Court of Appeals for the Eighth Circuit affirmed our holding
that the cost of insurance premiums was required to be
capitalized and amortized over the life of the coverage.
However, the Court of Appeals reversed with respect to certain
fees paid for administrative services provided by an
administrator unrelated to the insurer, holding that such fees
were deductible in the year of payment. See id. at 789. Here,
petitioners have stipulated, and the other evidence indicates, as
discussed supra, that all amounts paid to Western General were
for insurance costs.
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from Western General had no surrender value, and on the basis
that petitioners remained primarily liable on their service
contracts (i.e., the EWA’s). Petitioners’ assertion that the
policies had no surrender value appears to be in error. Although
the Vehicle Policies provide that Western General’s premium is
fully earned upon the inception of coverage, the Policies provide
exceptions where a pro rata refund of the premium would be
provided to petitioners, such as when a vehicle is repossessed.
Further, we are not persuaded that the absence of a surrender
value affects the capitalization requirement for a prepaid
multiyear insurance policy. Regardless of surrender value, the
policies herein afforded protection to petitioners with respect
to covered claims for a period of years, and there is no
indication in recent decisions involving prepaid insurance
coverage for extended service agreements that surrender value was
important. See, e.g., Johnson v. Commissioner, supra; Hinshaw’s,
Inc. v. Commissioner, supra.
As to petitioners’ claim that Western General, not they,
remained “primarily liable” to the vehicle purchaser, the EWA’s
provide as follows:
The Dealer [i.e., each petitioner] will repair
and/or replace, or at its option either pay for or
reimburse you [i.e., the EWA purchaser] or the repair
facility for reasonable costs to repair any of the
covered parts * * * which break down.
* * * * * * *
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Dealer in regards to this contract is acting as a
Principal and not as an Agent on behalf of any insurer.
* * * * * * *
In the event of a Breakdown, you must follow this
procedure.
1. Return your vehicle to the Dealer. If this is not
possible or practical, you must call his Claims Service
(insurer) for instructions * * *
* * * * * * *
NOTICE: If a Breakdown Claim has been filed with
the Issuing Dealer who has failed to pay the claim
within sixty (60) days after proof of loss has been
filed with the Issuing Dealer, you the Service Contract
Purchaser shall also be entitled to make a Direct Claim
against the Issuing Dealer’s insurance company, Western
General Insurance Company * * * [Emphasis in original.]
The foregoing terms contradict petitioners’ assertions and
satisfy us that petitioners remained primarily liable on the
EWA’s, notwithstanding that they had transferred the risk of loss
associated with that liability to Western General.
III. Conclusion
Because petitioners’ payments to Western General were for
the provision of multiyear insurance policies, petitioners’
method of taking a full year’s amortization of the insurance
expense in the year of a policy’s inception, irrespective of the
actual commencement date of the policy, violates the regulations.
Accordingly, petitioners’ method does not clearly reflect income,
and respondent is not proscribed from seeking to change
petitioners’ method so that it conforms with the requirements of
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sections 1.461-1(a)(2)(i) and 1.167(a)-10(b), Income Tax Regs.
Where the taxpayer has used a method of accounting that does not
clearly reflect income, the Commissioner has considerable
discretion to determine a method clearly reflecting income that
the taxpayer must use. See sec. 446(b); Thomas v. Commissioner,
92 T.C. 206, 220 (1989). The Commissioner has broad discretion
in determining whether a method of accounting clearly reflects
income. See Commissioner v. Hansen, 360 U.S. at 447.
Petitioners have offered no evidence of the actual
commencement dates of the policies obtained from Western General
during the years at issue or otherwise shown error in
respondent’s determination that such policies were obtained on a
ratable basis. Therefore we sustain respondent’s determination
that petitioners must amortize their insurance expenses on the
basis that such expenses were incurred ratably during the years
in issue.
To reflect the foregoing,
Decisions will be entered
for respondent.