dissenting: I respectfully dissent. Section 446(b) provides:
SEC. 446. GENERAL RULE FOR METHODS OF ACCOUNTING.
(b) Exceptions. — 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, does clearly reflect income.
In Sandor v. Commissioner, 62 T.C. 469 (1974), affd. 536 F.2d 874 (9th Cir. 1976), we restated the hornbook law governing the Commissioner’s authority to change a taxpayer’s method of accounting in order to clearly reflect income:
The Commissioner has broad powers and discretion to determine whether accounting methods employed by a taxpayer clearly reflect income. Commissioner v. Hansen, 360 U.S. 446 (1959); Fort Howard Paper Co., 49 T.C. 275 (1967); Photo-Sonics, Inc., 42 T.C. 926 (1964), affd. 357 F.2d 656 (C.A. 9,1966). Courts will not overturn the Commissioner’s determination unless the evidence clearly shows that he abused his discretion. Schram v. United States, 118 F.2d 541 (C.A. 6, 1941); Michael Drazen, 34 T.C. 1070 (1960). The taxpayer has a heavy burden of proof in establishing that the Commissioner abused his discretion. Fort Howard Paper Co., supra; Photo-Sonics, Inc., supra. Even if an accounting method may be in accord with generally accepted accounting principles, it may not clearly reflect income and, therefore, may not be binding upon the Commissioner. American Automobile Assn. v. United States, 367 U.S. 687 (1961); Fort Howard Paper Co., supra. [62 T.C. at 476-477.]
In Sandor, we held that the Commissioner’s power to change a taxpayer’s method of accounting may be exercised with respect to a material item (i.e., prepaid interest, the item involved in Sandor), if this is necessary to clearly reflect income. Sandor has been followed consistently by this Court and other courts. Burck v. Commissioner, 63 T.C. 556 (1975), affd. 533 F.2d 768 (2d Cir. 1976); Cole v. Commissioner, 64 T.C. 1091 (1975), affd. 586 F.2d 747 (9th Cir. 1978); Resnik v. Commissioner, 66 T.C. 74 (1976), affd. 555 F.2d 634 (7th Cir. 1977); Anderson v. Commissioner, 568 F.2d 386 (5th Cir. 1978), affg. a Memorandum Opinion of this Court.
Section 446(b) is concerned with accounting methods clearly reflecting income and is applicable to prepaid feed expenses as well as prepaid interest. If the method of handling a substantial prepaid item results in a material distortion of income, the Commissioner has been given the authority to change the taxpayer’s method of accounting for that item, whether the item is a prepaid interest expense or prepaid feed expense. Clement v. United States, 217 Ct. Cl. , 580 F.2d 422 (1978), cert. denied 440 U.S. (1979).
Nor is the Commissioner unable to deal with a material distortion of income under section 446(b) because of provisions in the regulations exempting farmers from having to use the inventory method of accounting. Sec. 1.471-6(a), Income Tax Regs. The Court of Claims recently considered this specific question in Clement v. United States, supra, and held at page :
we see the Commissioner’s refusal to allow deduction of the whole prepayment in 1968 — having found that to result in a distortion of income — not as imposing the inventory system, but rather as consistent with the cash system as the latter method is defined by the regulations and utilized for income tax purposes. Treas. Reg. §1.461-l(a)(l)(1957) — expressly prescribing the general rule for the taxable year of deduction for all taxpayers using the cash receipts and disbursement method — declares that “If an expenditure results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year, such an expenditure may not be deductible, or may be deductible only in part, for the taxable year in which made.” Under that specific provision the feed-deduction must be taken, where there would otherwise be a material distortion of income, in the year or years that that kind of asset is consumed or utilized. Such treatment does not mean that an inventory system (applicable to “product costs”) is adopted pro tanto but only that “period costs” are recognized and melded into the over-all cash accounting methods. See Ward, Tax Postponement and the Cash Method Farmer: An Analysis of Revenue Ruling 75-152, 53 Texas L. Rev. 1119, 1153-1155,1157, 1161 (1975). * * * [Fn. ref. omitted.]
Petitioners’ partnership acquired $360,000 worth of feed in the last few days of 1972, several months after realizing a $4.5-mil-lion gain on the sale of their trucking business. Most of the feed was consumed over the next 18 months, the remainder was then sold, and petitioners terminated their investment in the cattle-feeding business.
Thus, petitioners were in business for only a year and a half, but their operations were spread over 3 taxable years. In the first year, petitioners’ partnership began business after Christmas and was all finished before New Year’s. The only transaction engaged in (other than ordering some cattle) was the purchase of $360,000 worth of feed during the Christmas holidays. As a result of this brief llth-hour flurry, the feed acquisitions slipped under the wire into 1972, matching the deduction nicely with the large unrelated gain of a few months earlier but divorcing it completely from the income produced by the feed over the next 18 months. This clearly resulted in a material distortion of income, and under the broad powers of section 446(b), discussed above and only recently affirmed by the Supreme Court (Thor Power Tool Co. v. Commissioner, 439 U.S. (1979)), the Commissioner’s action in this case was fully authorized.
The majority opinion clearly recognizes that the Commissioner has latitude to deal with a material distortion of income arising from prepaid feed expenses pursuant to section 446(b). However, the majority nevertheless holds that “a substantial legitimate business purpose satisfies the distortion of income test.” It then finds a substantial business purpose in all of this llth-hour paper shuffling concluding that there was no distortion of income.
I question whether the Commissioner’s broad powers under section 446(b) are rendered impotent in the face of a material distortion of income simply because a substantial (although subordinate) business purpose is one of the objectives served by the distortion. Nevertheless, even assuming for purposes of argument that this dubious proposition is correct, the finding of a substantial legitimate business purpose on this record is surprising.
Petitioners sold a trucking business in the middle of 1972 realizing capital gains that aggregated nearly $4.5 million. They then looked around for a device to diminish the tax on the portion of this gain includable in income, and invested $360,000 in a cattle-feeding program. As noted earlier, petitioners’ partnership began business after Christmas and finished before New Year’s, purchasing $360,000 worth of feed during the Christmas holidays.
The majority opinion, in finding a business purpose, places heavy reliance on the testimony of Mr. Hitch (a full-service “farmer” by any stretch of the imagination) that the feed was purchased at the very end of December because “the price was lowest at that point and by purchasing a year’s supply of feed in advance the feed price was fixed.” Unless petitioners were entering the cattle-feeding business on a one-shot basis to generate artificial tax losses by splitting the deductions and income between separate tax years (an assumption not favorable to their case), we must assume that they contemplated buying feed on an annual basis. If they were willing to assume the interest costs of acquiring feed a year in advance they would presumably want to be buying it at a time during each year when the price would be the lowest. When is the price the lowest? The majority, again relying heavily on the testimony of Mr. Hitch, tells us that—
the price of feed was lowest after harvest in the autumn months and then rose steadily until harvest the following year except for a slight decline after the first of the calendar year when farms sold grain to raise money for payment of Christmas expenses, taxes and other expenses incurred in the previous December.
In other words, the price was lowest in the early fall at about harvest time, and increased from that point forward until just after the end of the calendar year when the price went down. During this period of several months from the fall through the early new year, therefore, the one time when the price would be highest was just before the first of the calendar year. Yet this is the very time that the petitioners purchased their feed.
Petitioners would have been better off waiting until right after the first of the year and then buying enough feed to carry them to the fall harvest. At that time, they could have locked themselves into a cycle of buying that would have enabled them to purchase a year’s supply at that point during each year when the price was the lowest.
In locking themselves into an annual cycle of acquisitions at the relatively high prices prevailing at the end of December, petitioners were acting against their business interests to produce a tax loss. I therefore disagree with the majority finding of a substantial business purpose sufficient to negate the material distortion of income that obviously occurred in this case. See Clement v. United States, 217 Ct. Cl. , 580 F.2d 422 (1978), cert. denied 440 U.S. (1979).
The cash method of accounting, undoubtedly helpful to some small businesses and farmers' with very simple records, never contemplated the use to which it has been put in this case. Quite simply, the provisions have been exploited and abused by a clever gimmick in a way transcending the purpose of the statute and the intent of Congress.
We have a dynamic and diverse economy providing income to nearly 90 million taxpayers. Congress, realizing that a statute cannot be drafted with sufficient particularity to fully accomplish its purposes while avoiding every potential abuse, specifically designed section 446(b) to permit the law to be administered on a day-to-day basis consistent with its purpose and intent. The broad interpretation given section 446(b) in recent years (see cases, supra and Thor Power Tool Co. v. Commissioner, supra) recognizes these fundamental facts. As Judge Learned Hand said in another context:
the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create. [Gregory v. Helvering, 69 F. 2d 809, 810-811 (2d Cir. 1934), affd. 293 U.S. 465 (1935).]
Unfortunately, the majority has heard the notes but not the melody.
Simpson and Quealy, JJ., agree with this dissenting opinion.