dissenting: I cannot agree with the majority opinion and wish to record my dissent. The evidence here convinces me that respondent’s determination exceeds permissible limits because it taxes gross receipts rather than the gain from the sale of goods, which gain alone is income subject to taxation. I would also hold that the petitioner’s method of accounting clearly reflected its net income for the years 1960 and 1962 whereas the respondent’s determination is erroneous, arbitrary, and clearly distorts income.
Petitioner computes its cost of goods sold according to elementary accounting principles. That is, it starts with its inventory (of raw materials, work in process, and finished goods) at the beginning of the year, adds to this its cost of material, labor, and overhead for the year, and subtracts its inventory at the end of the year. The ending inventory includes all goods on hand to which the taxpayer holds title, including goods (either completed or partially completed), produced for specific customer orders, which have not yet been delivered. This is not only in accordance with good accounting methods but also with the Internal Revenue C'ode and regulations. The rules for inventory accounting are prescribed in section 1.471-1, Income Tax Regs.:
In order to reflect taxable income correctly, inventories at the beginning and end of each taxable year are necessary in every case in which the production, purchase, or sale of merchandise is an income-producing factor. The inventory should include all finished or partly finished goods * * * Merchandise shall be included in the inventory only if title thereto is vested in the taxpayer. Accordingly, the seller should, include in his inventory goods under contract for sale hut not yet segregated and applied to the contract * * * hut should exclude from inventory goods sold * * * title to which has passed to the purchaser. [Emphasis added.]
Under the respondent’s regulations petitioner is required to include in yearend inventory the signs which it has produced (or is in the process of producing) under specific contract but which have not yet been delivered, or to which title has not yet been transferred.1
The inclusion of these goods in yearend inventory means that their cost is excluded (or removed) from the cost of goods sold for the year, for as already explained above, cost of goods sold equals beginning inventory, plus manufacturing costs minus ending inventory. Thus, the respondent’s adjustments as upheld by the majority in this case would include in income advance payments received for goods which have not yet been delivered and which, therefore, must be inventoried at yearend and thereby excluded from cost of goods sold for the year. The net effect is to tax gross receipts from these sales without reduction by any cost of those very goods sold.
Although respondent’s deficiency notice mentioned only section 61(a) of the Internal Revenue Code of 1954 2 as his authority for the adjustments made in this case, on brief he relies only on section 446 (b). Respondent maintains that petitioner’s method of deferring prepaid sales receipts until year of delivery when cost and gain can be determined does not clearly reflect income. He says that the only question presented is whether he clearly abused his discretion in rejecting petitioner’s method of accounting for advance payments. He persists in this approach in spite of petitioner’s reliance on more fundamental arguments, section 61 and the applicable regulations thereunder.
Section 446 provides in pertinent part as follows:
SEC. 446. GENERAL RULE FOR METHODS OF ACCOUNTING.
(a) Geneeal Rule. — Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
(b) BxoeptioNS. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.
The regulations under section 446 indicate that it is perfectly proper for a manufacturing business to defer the recognition of sales income until the time of delivery of the goods. Section 1.446-1 (c) (ii) of the regulations provides in part as follows:
The method used by the taxpayer in determining when income is to be accounted for will be acceptable if it accords with generally recognized and accepted income tax accounting principles and is consistently used by the taxpayer from year to year. For example, a taxpayer engaged in a manufacturing business may account for sales of his product when the goods are shipped, when the product is delivered or accepted, or when title to the goods passes to the customer, whether or not billed, depending upon the method regularly employed in keeping his books. * * *
Although petitioner has apparently complied with both the Statutory and regulatory requirements in accounting for advance payments for the sale of its products, as will be hereinafter discussed, I would hold for the petitioner on the more fundamental question presented here. Section 446 and the regulation quoted deal only with methods of accounting. Our first concern here,- however, is not merely with a method of accounting but with the very meaning of gross income subject to taxation as defined in section 61.
Respondent’s adjustments in this case, because they ignore tlie cost of goods sold, would go beyond a mere recomputation of taxable income using a different method of accounting from that used by petitioner; they would expand the scope of the Government’s taxing power established in the Code (sec. 61) as interpreted by respondent’s own regulations. Such a result cannot be sustained under the guise of a section 446 (b) accounting method adjustment.
In Lela Sullenger, 11 T.C. 1076 (1948), nonacq. 1949-1 C.B. 6, appeal dismissed (C.A. 5, 1950), acq. 1952-2 C.B. 3, we stated at page 1077:
the Commissioner has always recognized, as indeed he must to stay within the Constitution, that the cost of goods sold must he deducted from gross receipts in order to arrive at gross income. No more than gross income can be subjected to income tax upon any theory. * * * No authority has been cited for denying to this taxpayer the cost of goods sold in computing Ms profit, which profit alone is gross income for income tax purposes. * * * [Emphasis added.]
The same principle is applicable here. In Sullenger the Commissioner attempted to tax “more than gross income” by improperly reducing cost of goods sold. In the instant case he is attempting to tax “more than gross income” by including therein gross receipts unreduced by any cost of the goods sold for those receipts. Though the context in which the adjustment arises here differs, its nature is the same and equally as improper as the one struck down in Sullenger. See also Watkins v. United States, 287 F. 2d 932, 935 (C.A. 1, 1961); Woodlawn Park Cemetery Co., 16 T.C. 1067, 1080 (1951), acq. 1951-2 C.B. 4.
In Veenstra & DeHaan Coal Co., 11 T.C. 964 (1948), acq. 1949-1 C.B. 4, on which petitioner here relies, we held that certain advance payments over which the recipient had unfettered dominion and control were not income in the year of receipt, but only deposits to be later applied on the price of goods. The taxpayer had mingled the advance payments with its general funds in “its one bank account.” We pointed out that in the case of sales of property the gross income of the vendor is the gain derived from the sale, and that until the sale is closed and consummated the gain which constitutes gross income to the vendor cannot be ascertained. We need not repeat here the detailed and careful analysis we made in that opinion, which has been cited and relied on many times in the almost 20 years since it was written. I would follow the rationale and adopt the principles of Veenstra & DeHaan here.
The advance payments there were in no sense “restricted” deposits as the majority indicates in its efforts to distinguish the instant case. A careful reading of the Veenstra opinion reveals that the payments, required by the taxpayer from its customers, were mingled by the taxpayer with its other funds and could be used as it saw lit without any restriction whatsoever; we observed that they were equivalent to a forced temporary advance by its customers to the petitioner’s working capital. A rationale that would eliminate part payments received without restriction as to use or disposition from income in the year of receipt but include full payments made under similar conditions seems to me to be illogical, to say the least. I would equate the treatment of advance payments for the sale of goods whether or not they were deposits (part payments which might have to be refunded in a subsequent year if the sale fell through) or payments in full. In all events, I would conclude that until the cost of goods sold is ascertained so that the gain therefrom can be determined, no gross income has been realized. “Not until the transaction of sale is a closed one will a gain arise which will constitute gross income to the vendor.” Veenstra & DeHaan Coal Co., supra at 967.
Since the findings of fact here clearly show that at the end of each taxable year the petitioner did not and could not know what the cost of signs to be manufactured and delivered in subsequent years would be, there could be no “item of gross income,” includable under section 451(a) in the year of receipt, arising from prepaid sales of signs not completed or delivered in the year of payment. The advance payments were not gains from sales, hence they were not items of gross income subject to tax in the year of receipt. It therefore makes no difference whatever that petitioner held the receipts under claim of right or that they were commingled with its general corporate funds. The claim-of-right doctrine applies to items of income, not to gross receipts or other moneys which are not income. North American Oil Consolidated v. Burnet, 286 U.S. 417 (1932), makes it clear that the doctrine applies only to “net profits” and “earnings,” not gross receipts.
With all due deference and respect, I think that the majority here has fallen into a misconception similar to the one to which we referred in Veenstra da DeHaan, supra at 967, and has relied on cases involving advance payments for personal services where the transactions were closed in the year of payment. The majority hangs its hat on a whole line of service cases which in my view are necessarily distinguishable. Automobile Club of New York, Inc., 32 T.C. 906 (1959), affd. 304 F. 2d 781 (C.A. 2, 1962), relied on so heavily, was clearly a service case and the “items” discussed were clearly income, not gross receipts. We specifically noted there that there was no dispute that the amounts involved were income and that the only question was when it should be taxed.
The general proposition that in service cases, advance payments constitute income when received irrespective of whether or not the taxpayer is on the cash or accrual basis of accounting is now well established. Schlude v. Commissioner, 372 U.S. 128 (1963); American Automobile Association v. United States, 367 U.S. 687 (1961). Under section 61 (a) (1), unadjusted gross receipts for personal services to be rendered represent gross income immediately upon receipt, and there is no question of cost of goods sold; the taxpayers in such cases, receive items of gross income in the year they are paid for their services. The question in the service cases is whether amounts which are admittedly items of gross income in the year of receipt can properly be deferred to subsequent periods when the income will be “earned,” within the rules of sections 451 and 446. In Schlude and A.A.A., it was held that the deferrals of such income did not properly reflect income. As we observed in E. Morris Cox, 43 T.C. 448 (1965), 'the decision in Schlude was rested upon the sweeping ground that in the absence of specific statutory provision, it is not open to a taxpayer to defer income to a later period.
In the instant case, by contrast, the question is not whether income may be deferred, but, more basically, whether the gross receipts here involved may even be treated as gross income in the years of receipt within the meaning of section 61. As explained in section 1.61-3(a) of the Income Tax Regulations:
(a) In general. In a manufacturing, merchandising, or mining business, “gross income” means the total sales, less the cost of goods sold. * * * The cost of goods sold should be determined in accordance with the method of accounting consistently used by the taxpayer. [Emphasis supplied.]
I have already indicated my view that the receipts from petitioner’s orders for signs do not constitute gross income; whether or not income is ultimately realized from such receipts can only be determined after the cost of those signs has been ascertained and subtracted therefrom to determine petitioner’s profit, if any. There being no gross income arising from these receipts in the year of payment, I would conclude that respondent erred in his determination and that the Schlude, A.A.A., and other service cases cited by the majority dealing with deferral of admitted gross income are not controlling here.
Because Chester Farrara, 44 T.C. 189 (1965), was presented and argued as an accounting system case, we did not consider the nature of the advance payments but merely assumed, as did the parties, that they were income. I would not follow it here where the issue is raised and must be met; to the extent that it is inconsistent with the views expressed in this dissent, I would overrule it. Likewise, Fifth and York Co. v. United States, 234 F. Supp. 421 (W.D. Ky. 1964), is clearly distinguishable on its particular facts and is not persuasive authority here; I would not rely on it in the instant case.
Even if this case only involved an accounting method issue, rather than the more basic section 61 problem, I would still hold against the respondent. In the instant circumstances petitioner’s method of accounting accomplishes the matching of gross receipts and cost of goods sold so as to clearly reflect income; respondent’s adjustments do not.
A taxpayer who deals in services may deduct the costs related to the rendition of those services in the period in which those costs are incurred. Thus, although advance payments for the performance of services may have to be included in income in the year received, at least a taxpayer is able to offset this income by whatever costs were incurred in that same initial year.3 For example, if it is supposed that in a taxable year a dance studio received advance payment for 10 dancing lessons and by the end of the year had rendered 5 lessons, the studio would be entitled to deduct in that year the franchise and sales commissions on all of the advance payments plus the entire cost of rendering the 5 lessons.
By contrast, however, petitioner is required to defer its manufacturing costs by accumulating them in yearend inventories until such time as the goods are delivered to the customer. Sec. 1.471-1, Income Tax Begs. It is not until delivery that manufacturing costs can be offset against customer receipts as part of the cost of goods sold. Petitioner’s method of deferring related prepaid receipts to the same period produces an accurate determination of the gain, if any; an appropriate matching of costs with related revenues in the period in which title to the goods passes and they are removed from inventory.
On the other hand, respondent’s adjustments here cause a gross distortion of income. Advance receipts are included in income in the year of receipt. Yet the cost of goods to be purchased by those receipts must be included in yearend inventory (and are thereby excluded from cost of goods sold) under respondent’s regulations, until such goods are delivered. Thus, gross receipts are taxed as gross income in one year and the cost of producing the goods for which advance payment was received is not deducted until the year of delivery. The respondent’s adjustments can hardly be said to more clearly reflect income than petitioner’s generally accepted accounting method.
In the instant case, although the petitioner did not know exactly when all of the ordered signs would be delivered, it knew that they would all have to be delivered eventually. It did not defer its advance receipts “artificially” to periods in which it was merely estimated that the goods would be delivered as in A.A.A. and Sehlude — but rather, advance payments for signs were held in the deferral account until the signs were actually delivered, and then the advance was taken into sales income. Thus, income from the sale of signs was recognized in the period the signs were delivered. Costs of producing such signs were also taken into account in the year of delivery (by the removal of those costs from yearend inventory). There is nothing “artificial” about this method of matching revenue with production cost in the period when the goods are delivered.
According to the majority view, if petitioner 'here received advance payment in one year for 10 signs and by the end of the year he had all 10 signs 90-percent completed but still on hand, not 1 cent of the cost of partially completing the 10 signs would be included in cost of goods sold to be offset against gross sales receipts in that year; the entire cost incurred to date would be included in yearend inventory. All prepaid receipts would be current (year-of-reeeipt) income but yet such current income could not be offset by current costs (of partial completion), which costs would have to be deferred.4 This would distort income and produce an incongruous result. Beacon Publishing Co. v. Commissioner, 218 F. 2d 697 (C.A. 10, 1955), reversing 21 T.C. 610 (1954).
The absurdity of the result reached here is demonstrated by applying respondent’s determination as upheld by the majority view to the following supposititious factual situations:
First. — In 1966 a sign manufacturer commences business and is paid in advance upon the signing of 100 contracts for 1,000, signs at a price of $100,000. In the same year the signs are completed and delivered at a cost of $110,000. No gross income from the sale of the signs is realized because there was no gain, and no tax need be paid for 1966 or for any other year on the proceeds from these sales.
Second. — Same manufacturer; same advance payments on same contracts for same signs at same price in same year. Taxpayer does not begin manufacture of the signs and incurs no costs therefor in year of advance payment. The next year, 1967, taxpayer completes and delivers the same signs at the same cost, $110,000. Taxpayer has gross income of $100,000 from the sale of the signs reportable as such in 1966 and is required to pay tax on that amount of income for that year, unreduced by any cost of goods sold whatsoever. All costs for the signs are chargeable in 1967 but not against the proceeds from sale of the 1,000 signs paid for in 1966.
Third. — Same manufacturer, same advance payments on same contracts for same signs at same price in same year. Taxpayer almost completes manufacture of all 1,000 signs, but not quite. Costs of $105,000 are incurred in 1966 but no signs are completed or delivered in 1966 so that all partially completed signs are included in yearend inventory for that year. In 1967 taxpayer completes and delivers all 1,000 signs at an additional cost of $5,000 that year. Taxpayer has a gross income of $100,000 from the sale of the signs in 1966, and is required to report and pay tax on that amount for that year unreduced by any cost whatever even though it was clear at the end of the year that his entire year’s business would result in no gain and no gross income from the sale of the 1,000 signs upon final completion and delivery. In 1967 his total cost of $110,000 for the 1,000 signs is chargeable against that year’s gross receipts from sales, if any, but not against receipts from the 1966 sales of 1,000 signs.
When these results are compared with the results which flow from an application of the rationale of Veenstm <& DeHaan it is obvious that the taxpayer’s long-used method of accounting for the sales it makes to advance payment customers clearly reflects income whereas respondent’s method results in a distortion of income as well as taxation of gross receipts from the sale of goods. It is all very well to talk about “transactional” basis as distinguished from “annual” basis required in tax accounting as the majority does. However, if a transaction does not result in gross income so that there is no item of gross income to be reported or included in taxable income in any given year, it hardly is either good tax accounting or good tax law to adopt the “it all comes out in the wash” approach which results in an obvious distortion of income and in fact the annual taxation of returns of capital instead of income.
In Pacific Grape Products Co., 17 T.C. 1097 (1952), the taxpayer’s method of accounting was disapproved and the Commissioner’s determination that it did not clearly reflect income was upheld. A dissenting opinion was filed by one judge, joined by five others, which read as follows:
Opper, </., dissenting: The practice of disapproving consistent accounting systems of long standing seems to me to be exceeding all reasonable bounds. * * * Methods of keeping records do not spring in glittering perfection from some unchangeable natural law but are devised to aid business men in maintaining sometimes intricate accounts. If reasonably adapted to that use they should not be condemned for some abstruse legal reason, but only when they fail to reflect income. There is no persuasive indication that such a condition exists here. * * *
It will not do to say that respondent should not have disturbed petitioner’s accounting method, but that since he has done so, we are powerless to do otherwise. As long as we continue to approve the imposition of theoretical criteria in so purely practical a field, respondent will go on attempting to seize on such recurring fortuitous occasions to increase the revenue, even though he may ae-tually accomplish the opposite. I think it evident that petitioner’s generally recognized accounting system did not distort its income and that it should be permitted to continue to use it. * * *
Van Fossaiv, Murdock, Leech, Johnson, and Tietjens, JJ., agree with this dissent.
[Citations omitted.]
The Court of Appeals for the Ninth Circuit reversed us, 219 F. 2d 862 (C.A. 9,1955), saying:
Finally, we are of the view that the petitioner’s method of accounting clearly and accurately reflected its income wholly apart from the question whether title to the goods did or did not pass to the buyers on the dates of billing. Upon this aspect we are agreed with what the six dissenting judges said in this case.10
[Footnote omitted.]
I think it patently clear that respondent’s determination here results in the inclusion of gross receipts from sales in the year of receipt without allowance of cost of goods sold; thus return of capital is included in taxable income instead of the gain from the sale of goods. I think it also evident here that respondent clearly abused his discretion by disapproving petitioner’s long-used and generally recognized accounting system which clearly reflected the advance payment income in dispute. Respondent’s adjustments result in a distortion of income and are clearly arbitrary.
I would hold for the petitioner.
FoeresteR, J., agrees with this dissent.
Normally, title to goods, the subject of a contract of sale, passes upon delivery of the goods, uniform Commercial Code sec. 2-401(2) ; Uniform Sales Act sec. 19; Ohio Rev. Code sec. 1302.42(B) ; Ohio Rev. Code see. 1315.18-1315.21 (prior to July 1, 1962) ; Ohio Rev. Code Ann. tit. 13, 67n. 22 (Page 1962).
AU statutory references hereinafter made are to sections of the Internal Revenue Code of 1964 unless otherwise specified.
As a matter of fact, the dance studio in Sehlude incurred expenses and took deductions for franchise royalties and sales commissions at the time it received advance payment for lessons. 372 U.S. at 131.
While it might be argued that this problem could be overcome by excluding from year-end inventories (and ««eluding in cost of goods sold) the costs allocable to goods on hand (finished or in process) for -which advance payment has been received, such adjustments would be contrary to sec. 1.471-1, Income Tax Regs., would force manufacturers to adopt burdensome and costly job-cost accounting systems, andi would produce such a breakdown of fundamental principles of cost of goods sold accounting as would virtually nullify the integrity of any accounting system and denude sec. 446(a) of any meaning whatsoever See also the last sentence of sec. 1.61-3 (a), Income Tax Kegs.