dissenting: I dissent from that part of the decision which holds that Shawnee is subject to the accumulated earnings tax only on the excess of its taxable income that could have been paid without violating the spirit of the Wage and Price Guidelines.
As is clear, the purpose of Rev. Proc. 72-11,1972-1 C.B. 732,1 was to mesh the President’s economic stabilization program with the accumulated earnings tax and to encourage corporations to comply with the dividend guidelines issued by the Committee on Interest and Dividends. In the absence of these guidelines, a corporation which did not distribute any after-tax income, assuming it had no reasonable business needs for which this amount was to be used, would be presumed under section 533(a)2 to have the proscribed purpose. All of the after-tax income would then be subject to the accumulated earnings tax unless it could show by a preponderance of the evidence that it did not have the proscribéd purpose. Sec. 532(a).3 The guidelines, however, provided that certain corporations could not distribute more than 25 percent of net income without violating the law.
Rev. Proc. 72-11 held that where a corporate taxpayer exempt from the dividend guidelines (as is petitioner herein) permitted its earnings and profits to accumulate beyond its reasonable business needs, in order to comply with the spirit of the dividend guidelines, it would not, nonetheless, be subject to the accumulated earnings tax provided that it distributed the maximum amount that could have been paid as dividends to its shareholders without exceeding the dividend guidelines (that is, it distributed exactly 25 percent of its after-tax income). Failure to meet the test would subject the corporation’s entire earnings to the accumulated earnings tax.
The majority sets forth two theories under which statutory authority for the Rev. Proc. may be found. The first theory is that the existence of a subjective intent to comply with the guidelines supplies a nontax motive for accumulating beyond reasonable business needs. The majority states that the Rev. Proc. rejects this theory, however, by reading the phrase “not intended to interject a subjective intent” as meaning that respondent has determined that he will not consider a taxpayer’s subjective intent to meet the guidelines as excusing nondistribution of earnings in any case in which the 25-percent test is not precisely met.
I believe the majority misinterprets the scope of the Rev. Proc. I read the Rev. Proc. to mean only that if a taxpayer has met the objective test set forth therein, then for administrative purposes, respondent has determined that he will not challenge whether the taxpayer’s intent was to withhold distributing its earnings to meet the guidelines rather than the proscribed purpose of section 532(a); thus, the Rev. Proc., in effect, created a safe harbor. If a corporation failed to meet the test, I believe respondent intended to allow it to prove by a preponderance of the evidence that it did not have the proscribed purpose. Sec. 533(a).
Indeed, such a result is required under the statute. As this Court stated in Atlantic Properties, Inc. v. Commissioner, 62 T.C. 644, 659-660 (1974), affd. 519 F.2d 1233 (1st Cir. 1975):
A corporation should not be liable for the accumulated earnings tax if it accumulates for reasons other than the forbidden purpose of section 532(a) even though earnings may have been accumulated out of caprice, spite, miserliness, or stupidity rather than for sound business reasons.
Under the wording of the statute as interpreted by Atlantic Properties, Inc. v. Commissioner, supra, it is clear that if a taxpayer can show that its intent in accumulating earnings beyond its reasonable needs was to adhere to the spirit of the' guidelines rather than to avoid the income tax with respect to its shareholders on the undistributed amounts, the accumulated earnings tax would not apply. This would be true even if respondent had never issued Rev. Proc. 72-11.1 believe that it is unreasonable to interpret the Rev. Proc. so as to deny a taxpayer this opportunity.4 On the other hand, I believe it is unreasonable to interpret it to give an outright blanket credit to a taxpayer during the period covered by the guidelines as the majority does under its second theory (which is discussed later).
Once it has been established that the Rev. Proc. created an objective test or safe harbor under which a taxpayer’s intent would not be challenged, it does not appear to be arbitrary to challenge Shawnee’s intent and subject the entire accumulation to the accumulated earnings tax since it did not meet the test. This is so because none of Shawnee’s accumulations were retained to provide for its reasonable business needs. Thus, although I agree with the majority’s conclusion that it would be beyond respondent’s authority to “punish” accumulations in all cases in which the objective test set forth in the Rev. Proc. was not met, regardless of the taxpayer’s intent to comply with the spirit of the guidelines, I do not believe respondent has attempted to do so.
In the case at bar, no evidence was found by the majority which indicates that Shawnee had any intent to meet the objective test but failed to do so, or, for that matter, whether it was aware of the guidelines as of July 15, 1972,5 the time it accumulated the earnings.6 Nor was there any evidence in the record that suggests Shawnee intended to distribute less than allowed under the guidelines for any reason other than the proscribed purpose. At the least, Shawnee has not shown that tax avoidance was not one of the purposes for accumulating earnings. United States v. Donruss Co., 393 U.S. 297 (1969). This necessarily follows from the majority’s holding that Shawnee was entitled to a credit only to the extent of its earnings required to be retained under the “spirit” of the guidelines: If Shawnee had either the intent to meet the objective test but failed to do so (for example, because of a mathematical error or inability to accurately determine the amount of its taxable income) or the intent to otherwise meet the spirit of the guidelines, the entire accumulation would be free under section 533(a) from the accumulated earnings tax rather than only the amount required to be distributed. This is so because Shawnee would not have had the proscribed intent with respect to any of the accumulations.
The majority states that the second theory upon which statutory authority for the issuance of the Rev. Proc. may be found is that compliance with the spirit of the guidelines is a reasonable need of the business entitling it to the credit provided in section 535(c)(1) for reasonable business needs. The majority holds that the dividend guidelines themselves created a reasonable need of the business, a result they reach although it “is not without its difficulties.”
One difficulty noted by the majority is that the Rev. Proc. states that a corporate taxpayer is not subject to the accumulated earnings tax where it “permits its earnings and profits to accumulate * * * beyond the reasonable needs of the business, in order to comply with the spirit of the dividend guidelines.” (Emphasis added.) I believe this language quite clearly indicates that the Rev. Proc. did not establish compliance with the spirit of the guidelines as a reasonable business need but rather was intended as a matter of administrative convenience to inform taxpayers that respondent would not question accumulations if they fell within the guidelines. Moreover, this language supports my position that the Rev. Proc. established an objective test under which respondent presumed (conclusively) that if the test was met, the reason for the accumulation beyond reasonable business needs was not the proscribed intent but rather was in order to comply with the spirit of the guidelines.
The majority, however, in rejecting the “intent” theory no longer finds any statutory authority for the Rev. Proc. and concludes that the language must mean “needs other than the need for dividend restraint under the ‘spirit’ of the guidelines.” Not only is this a strained reading of the language of the Rev. Proc., it is unnecessary if the Rev. Proc. is viewed as creating a safe harbor under which respondent would not challenge intent. Respondent certainly has authority to establish administrative quidelines under which he will not challenge a taxpayer’s intent.
Although the Rev. Proc. itself does not provide support for the majority’s position that compliance with the guidelines is a reasonable need, it nevertheless appears that the majority would reach the same result on the basis of the repeated governmental demands for dividend restraint, earlier public jawboning of offenders, and vagueness of the rules. But in order to obtain the benefit of the credit for reasonable business needs provided for in section 535(c)(1), it seems to me that a taxpayer must not only establish that, in fact, it had a reasonable business need for which it should have retained its earnings at the time of accumulation but also that it actually retained its funds to meet the need. That section states that the accumulated earnings credit is “an amount equal to such part of the earnings and profits for the taxable year as are retained for the reasonable needs of the business.” (Emphasis added.) In other words, a taxpayer must retain the funds to provide for those needs.7 If a corporation was not aware of the need at the time of accumulation (which is the case here), it could not in any event have retained those funds for that need.8
As already pointed out, the majority found no direct evidence on whether Shawnee was aware of the guidelines or had the subjective intent to comply with the spirit of the guidelines. In fact, neither party raised the issue. There was no testimony, corporate record, or resolution which would support the majority’s finding that Shawnee was aware of the guidelines and retained its earnings to comply with the spirit of the guidelines. The majority, therefore, gratuitously considers Shawnee to have been not only aware of the guidelines but also to have retained its earnings in order to comply with them9 because “it is inconceivable a business corporation through its executives was unaware of its existence.”
It appears that the majority has, in effect, therefore, taken judicial notice that a corporation, through its executives, was aware of the guidelines because of their great national television, newspaper, and periodical news coverage. To me, this is an unwarranted use of judicial notice, particularly in the case of a small, closely held corporation. Since the burden of proof is on Shawnee, the result in this case would appear to be dictated by petitioner’s failure to establish that it was even aware of the guidelines. Accordingly, I would hold that Shawnee is not entitled to any credit for reasonable business needs.10
The Rev. Proc. is set forth in full in all its relevant parts in the majority opinion.
SEC. 533. EVIDENCE OF PURPOSE TO AVOID INCOME TAX.
(a) Unreasonable Accumulation Determinative of Purpose. — For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.
SEC. 532. CORPORATIONS SUBJECT TO ACCUMULATED EARNINGS TAX.
(a) General Rule. — The accumulated earnings tax imposed by section 531 shall apply to every corporation (other than those described in subsection (b)) formed or availed of for the purpose of avoiding the income tax with respect to its shareholders or the shareholders of any other corporation, by permitting earnings and profits to accumulate instead of being divided or distributed.
I do not read the majority opinion as necessarily foreclosing an argument by a taxpayer who has distributed less than the maximum amount allowed under the Wage and Price Guidelines that its subjective intent was not to avoid the income tax on its shareholders but rather to comply with the spirit of the guidelines.
Shawnee’s fiscal year ended on Apr. 30, 1972. Under sec. 563(a), it had until July 15, 1972, to distribute dividends without being subject tu the accumulated earnings tax.
The only statements ever made by any representatives of Shawnee with respect to the guidelines are in the sec. 534(c) statement, petition, and reply brief. These, of course, do not constitute evidence.
In John P. Scripps Newspapers v. Commissioner, 44 T.C. 453 (1965), we held that in view of the credit provided for in sec. 535(c)(1), it was not necessary for the taxpayer to show it was not availed of for the proscribed purpose, for even if it was so availed, it would be entitled to a credit equal to the amount of earnings which it had retained for its reasonable business needs. I believe that result is correct. We found that the corporation’s officers and directors retained earnings after considering the needs of the business for expansion, meeting competition, etc.; therefore, the corporation both recognized its needs and retained its earnings to provide for them. See also Bremerton Sun Publishing Co. v. Commissioner, 44 T.C. 566, 583 (1965).
The difference between a taxpayer attempting to prove that its intent was not the proscribed purpose, assuming that accumulating to comply with the spirit of the guidelines was not a reasonable business need, and attempting to show it retained its earnings to adhere to the guidelines, if such was a reasonable business need, may determine the outcome of the case. Under United States v. Donruss Co., 393 U.S. 297 (1969), the taxpayer must show that tax avoidance was not one of its purposes for accumulating earnings. Therefore, if a taxpayer failé’d'tó distribute its earnings because it wanted not only to comply with the spirit of the guidelines (assuming not a reasonable business need) but also for the proscribed purpose, the accumulated earnings tax would apply. But if a taxpayer retained its funds to adhere to the spirit of the guidelines (assuming to do so was a reasonable business need), under our decision in Scripps Newspapers v. Commissioner, supra (see n. 7), no further inquiry need be made to determine whether the taxpayer had the additional motive to avoid the income tax with respect to its shareholders.
At least this is the result in those situations in which the taxpayer has distributed less than the maximum amount that could have been paid as dividends to its shareholders without exceeding the guidelines. The majority has not, in its opinion, addressed the situation where a taxpayer has distributed more than the maximum amount that' could have been distributed. It is unstated, therefore, whether it would also hold Rev. Proc. 72-42, 1972-2 C.B. 823, dealing with the latter situation, arbitrary. At the least, different policy considerations would apply in the case of distributing more than the Wage and Price Guidelines permitted. No longer could penalties be avoided by increasing dividends, a policy opposed by the guidelines; rather, the distribution of earnings in excess of the guidelines would, obviously, not be in compliance with the guidelines policy. Moreover, a taxpayer who distributed more than the maximum amount could avoid the accumulated earnings tax if all of its shareholders returned (within certain time limits), pro rata, those dividends distributed in excess of the amount permitted. Rev. Proc. 72-42.
Indeed, Shawnee’s record of never having distributed dividends in the past indicates that it is by happenstance alone that Shawnee complied with the spirit of the guidelines. Where a taxpayer was unaware of the guidelines, it would be unnecessary to protect it from being caught between the guidelines and the accumulated earnings tax. Nor is it clear that a mere awareness of the quidelines, without more, would be sufficient to support a finding that Shawnee retained its earnings to meet the guidelines. Por example, there are no corporate records or testimony which indicate that Shawnee would have distributed its earnings except for the guidelines. In this regard, outside of the petition and sec. 534(c) statement, no mention of the dividend guidelines was made until reply brief. On original brief, Shawnee maintained that it could not distribute its earnings only because it needed the funds for expansion into the real estate business. It does not appear to me that Shawnee could have refrained from distributing its accumulated earnings to comply with the spirit of the guidelines unless it was aware that it had any earnings to distribute. Therefore, the majority gives Shawnee a credit to provide for its compliance with the spirit of the guidelines although Shawnee contends that it retained its funds for expansion into the real estate business, thus apparently unaware that it had any earnings available for distribution. Cf. Capital Sales, Inc. v. Commissioner, 71 T.C. 416 (1978).