dissenting: I respectfully disagree with the judicial standard invoked by the majority opinion in reviewing the Commissioner’s determination in this case and the result reached therein. Section 367(a)(1) expressly authorizes the Commissioner to issue a favorable ruling only when “it has been established to the satisfaction of” the Commissioner that “such exchange is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes.” Section 7477(a)(2) expressly authorizes this Court to review the Commissioner’s determination to determine and declare whether it is “reasonable.” In connection with this process, the Senate committee report comments:
The fourth problem concerns the fact that since the law requires the satisfaction of the Commissioner, a taxpayer is unable to go through with a transaction and litigate in the courts the question of whether tax avoidance is one of the purposes of the transactions. While your committee generally approves the standard applied by the IRS there may be cases where these standards are inappropriate or are not being correctly applied. Your committee believes it is fair to permit taxpayers to litigate these questions in the courts.
S. Rept. 94-938 (1976), 1976-3 C.B. (Vol. 3) 301; see also H. Rept. 94-568 (1976), 1976-3 C.B. (Vol. 2) 933. Thus, the statutory provisions and the legislative history make clear that the Commissioner is given broad discretion in issuing standards governing rulings under section 367 and in applying those standards to the facts of a given case.
In view of the discretion thus given to the Commissioner, any attack on his standards or application of those standards must show an abuse of discretion. It is reasonable to conclude that, in enacting sections 367 and 7477, Congress contemplated that those provisions would be interpreted and applied in the same manner as other provisions of the Internal Revenue Code in which the Commissioner is given the discretionary authority to act; that is, Congress contemplated that his action would be sustained by the courts unless he acted arbitrarily or unreasonably. For example, section 166(c) provides that there shall be allowed, in the discretion of the Commissioner, a deduction for a reasonable addition to a reserve for bad debts. Because of the discretionary authority specifically granted in the allowance of deductions under the reserve method, the Commissioner’s determinations regarding the reasonableness of additions to bad debt reserves carry more than the usual presumptive correctness, and the taxpayer’s burden of proof is greater than merely overcoming such presumption. Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979); Roth Steel Tube Co. v. Commissioner, 68 T.C. 213, 218 (1977); Roanoke Vending Exchange, Inc. v. Commissioner, 40 T.C. 735 (1963). Thus, the taxpayer must not only demonstrate that its addition to its reserve for bad debts was reasonable, but also that the Commissioner’s disallowance of such addition amounted to an abuse of discretion. Similarly, section 446(b) authorizes the Commissioner to change the method of accounting used by a taxpayer when he finds that such method does not clearly reflect income. In Thor Power Tool Co. v. Commissioner, supra, the Supreme Court held that when the Commissioner changes a taxpayer’s method of accounting, the Court should accept the Commissioner’s action unless the Court finds that he has abused his discretion. And section 482 allows the Commissioner to distribute, apportion, or allocate income if he finds that such distribution, apportionment, or allocation is necessary to clearly reflect income. The cases are legion in which this and other Courts have held that when the Commissioner acts under section 482, his action is to be approved unless he acted arbitrarily or unreasonably.
There is no basis for inferring that when Congress used the word “reasonable” to describe the scope of our judicial review, it meant to limit the broad discretion given to the Commissioner by section 367. Surely his authority under section 367 is as broad as the authority granted to him by sections 166(c), 446, and 482, and the scope of our judicial review of rulings under section 367 should be no broader than our authority to review his actions under those other sections.
Applying an arbitrary and unreasonable standard1 for reviewing the Commissioner’s determination, I would hold, based on the facts contained in this administrative record, that the petitioner has failed to carry its burden of proving that the Commissioner acted unreasonably in denying a favorable ruling under section 367. In doing so, I am not inhibited in any way from drawing my own factual conclusions and inferences from the stipulated record. This is not a situation in which I am bound by the fact findings of the trial judge. My conclusion has been reached for the reasons set forth below.
Section 3.02 of Rev. Proc. 68-23 deals with transfers of property to a foreign corporation in an exchange described in section 351. It states that, as a general rule, a favorable section 367 ruling will be issued with respect to property transferred to a foreign corporation for use in the active conduct of a trade or business abroad. It further states that the foreign corporation should have need for a substantial investment in fixed assets or should be engaged in the purchase and sale abroad of manufactured goods.
The transaction here was carefully structured to produce the impression that the joint venture, through OLINV, will be actively engaged in a substantial business, i.e., the manufacture of rub-off lottery tickets and the sale of those tickets throughout the world. In fact, however, it is evident that the actual business operations will be conducted solely through other corporations, pursuant to the manufacturing and sales agreements, and that OLINV will function as nothing more than a clearinghouse through which the anticipated receipts will flow.
The agreements reveal the manner in which operations may be expected to be carried on, and the minimal activity which will be required of OLINV. Under the sales agency agreement and the Kirkdale sales agreement, petitioner, NWBV, and Kirkdale are OLINV’s exclusive agents for sales of rub-off tickets within the entire new market area. One of these corporations will place an order with OLINV. Pursuant to the manufacturing agreement, petitioner and/or NWUK may offer to manufacture tickets to fill the order. The only task of OLINV is to determine whether the transaction will produce the specified 15-percent profit. If so, it will proceed to have the order filled by the manufacturer. Under the manufacturing agreement, OLINV may direct that the manufacturer deliver the tickets directly to the customer and prepare the necessary invoice directing that payment be made to it. The only other tasks definitely required of OLINV will be receiving the customer’s payment and making the necessary disbursements to the manufacturer and sales agent.
Petitioner contends that OLINV’s reliance on independent contractors for the manufacturing and sales activities will result in substantial savings during the first years of operation in comparison with the cost of carrying on those activities itself, thus, suggesting by implication that OLINV might produce and sell tickets directly at some point in the future. However, the manufacturing agreement and the two sales agency agreements will all remain in effect as long as the joint venture is still in existence and controlled equally by petitioner and NWBV. Furthermore, the sales agency agreements are exclusive, and the manufacturing agreement gives NWUK and petitioner a right of first refusal on all manufacturing orders. Thus, it is doubtful whether OLINV could carry on manufacturing or sales activities directly under the agreements submitted to the Commissioner, and there certainly is no basis for concluding that the parties intend that OLINV ever will actually do so.
Section 367 clearance will normally be given to transfers of property to a foreign corporation if the property to be used in the active conduct of a trade or business in a foreign country is based upon the perception that there are sound non-tax reasons for conducting business operations abroad. Those reasons are absent if the transferee foreign corporation will do nothing more than contract out for all of the activities necessary to its business operations because, in such circumstances, there is no apparent reason for utilizing a foreign corporation at all. Thus, section 3.02(1) of Rev. Proc. 68-23 states that, in addition to actively conducting a trade or business, the foreign corporation must have need for a substantial investment in fixed assets in such business or be engaged in the purchase and sale abroad of manufactured goods.
The business in which OLINV is to be involved, and for which it received petitioner’s rights in the process and associated manufacturing know-how, is nothing more than acting as a middleman between corporations which will arrange for the manufacture and sale of rub-off lottery tickets. Such activity falls outside both the literal language of section 3.02 of Rev. Proc. 68-23 and the rationale behind the ruling policy set forth in that section. Hence, in my judgment, the Commissioner did not act unreasonably in refusing to issue petitioner a favorable ruling pursuant to section 3.02, Rev. Proc. 68-23, and the determination should be sustained in that respect.
The administrative record suggests that although the transaction is inform the incorporation by two coventurers of a foreign corporation which will engage in the manufacture and sale of rub-off lottery tickets abroad, it appears in substance to be little different from a transfer by petitioner of its manufacturing know-how and rights in the process to various subsidiaries of Group, for their use in engaging in such manufacture and sale, in exchange for a share of the resulting profits. In other words, the transaction is substantially identical to a licensing arrangement.
Comparison of this transaction with the royalty agreement, which is admittedly a license by petitioner to NWUK, supports this conclusion. Under the royalty agreement, petitioner grants NWUK a license to manufacture and sell rub-off tickets within the territory covered by that agreement. Petitioner is required to provide technical assistance at NWUK’s request and to supply its needs for Tesec ink at the same price set forth in the manufacturing agreement. As licensee, NWUK is required to actively and continually use the license to promote the gains contemplated by the parties. Finally, the actual payments which petitioner will receive under the royalty agreement are comparable to the profits which will accrue to it as a 50-percent owner of the joint venture. The royalty agreement provides a royalty of ll/i percent of the sales price on rub-off tickets sold by NWUK after the first year of the license. Under the manufacturing agreement and the sales agreements, OLINV is not to accept an order unless its profit will be at least 15 percent of the sales price, and petitioner’s share of this 15-percent profit will be 7 y2 percent.
It is clear that a favorable ruling under section 367 would not and should not be issued with respect to a transfer of an intangible right to a foreign corporation located in a “tax haven” country, such as the Netherlands Antilles, if that foreign corporation will merely license that right to another person. See sec. 3.02(b), Rev. Proc. 68-23. In such circumstances, there is no business reason why the licensing could not be done directly from the United States. The only apparent reason for the use of the foreign corporation is to divert income which would otherwise be taxed in the United States to the foreign tax haven, and thus avoid Federal income taxes. This conclusion is not changed by the fact that it apparently was NWUK which proposed, for business reasons of its own, that the joint venture and OLINV be located in the Netherlands Antilles. There is nothing to indicate that NWUK’s interests would not have been as well, if not better, served by incorporating the joint venture as a wholly-owned subsidiary of NWBV and obtaining a license of the process and associated manufacturing know-how from petitioner. I think it is the petitioner’s motives for entering into this transaction which are relevant for purposes of this case, and the motives of petitioner’s coventurer should not be attributed to petitioner in order to establish a business purpose of its own. Thus, the record strongly indicates that the petitioner had no identifiable non-tax purpose for entering into this transaction rather than licensing the process and associated manufacturing know-how. The various agreements governing the transaction and the proposed business operations do not require the petitioner to take any active role in the manufacture or sale of rub-off tickets, and, in fact, clearly contemplate that subsidiaries of Group will carry on those activities exclusively. From petitioner’s standpoint, the transfer is virtually identical in substance to a license, but a license under which the royalties will be earned by a corporation located in the Netherlands Antilles. In view of these circumstances, I believe it is certainly reasonable to conclude, as the Commissioner has done, that the avoidance of Federal income taxes is one of the principal purposes for this transaction.
The tax avoidance inherent in the transaction is not eliminated by the shareholders’ (petitioner and NWBV) agreement to distribute annually as dividends 75 percent of OLINV’s earnings. Section 3.6 of that agreement states that OLINV will pay out as dividends all of its net profits after taxes, provided that, unless otherwise agreed by the shareholders, 25 percent of those profits for each year will be retained by OLINV. According to the agreement, the 25 percent will be retained for capital and other expenditures. While 75 percent of the profits earned by OLINV will be paid out as dividends each year, and petitioner’s share of those profits will be taxed in the United States, there is, nevertheless, tax avoidance as to the 25 percent of OLINV’s profits which under the shareholders’ agreement will never be paid out as dividends without petitioner’s consent. The parties clearly anticipate that this provision will result in the accumulation of substantial amounts of earnings and profits in OLINV.
In addition to this built-in avoidance of tax, the Commissioner has no assurance that the parties will not agree in the future to reduce the dividend distributions below the 75 percent called for by the shareholders’ agreement. The shareholders have discretion to reduce the dividends paid out by OLINY to the joint venture, by the joint venture to petitioner and NWBV, or both. Of course, as long as NWBV washes to maximize its dividends, it is unlikely to agree to any such reduction. However, there is not and cannot be any assurance that NWBV’s business situation will not change so that it prefers to receive a small distribution in a given year, or that Netherlands law will not be changed to limit or ^ eliminate altogether the tax incentive for receiving dividends which NWBV presently enjoys. Thus, besides the tax avoidance which is known to be present in this transaction, there is a definite possibility that even greater tax avoidance wall result in the future.
Finally, although the petitioner claims that it was not responsible for the form of the arrangements with Group and that it merely acquiesced in Group’s wishes, such claim does not explain the agreement to withhold current distribution of 25 percent of the earrings of the joint venture. In fact, Group stood to benefit from a current distribution of all the earnings of the joint venture. It was the petitioner which sought to defer the distribution of the earnings. The final agreement to distribute 75 percent of the earnings reflected a compromise in the positions of Group and the petitioner. Thus, the petitioner succeeded in deferring United States taxation of 25 percent of the earnings, and there is no basis for attributing that result to Group.
Accordingly, by using the judicial standard of review previously mentioned in this dissenting opinion, I would conclude that the Commissioner’s determination is reasonable, and, therefore, the petitioner is not entitled to a favorable ruling under section 367.
Tannenwald, Simpson, Irwin, Quealy, Wilbur, and Chabot, JJ., agree with this dissenting opinion. Tannenwald, J.,dissenting: I have indicated my agreement with Judge Dawson’s dissent because I am satisfied with his analysis of the facts and his conclusion that respondent’s determination was reasonable. Like him, I am not inhibited in so doing by the action of the Judge to whom this stipulated case was assigned. See First National Bank of Fayetteville v. Smith, 508 F.2d 1371, 1374 (8th Cir. 1974). I append these remarks because I am not convinced that there is necessarily any difference between the standard of review articulated in the majority opinion and the ultimate test adopted in Judge Dawson’s dissenting opinion. The difficulties which I have are founded upon the fact that Judge Dawson does not elaborate (nor do the cases under sections 166, 446, and 482 from which he draws sustenance) upon how he would measure his ultimate test of “arbitrary and unreasonable,” while the majority opinion elaborates upon the standard of measurement without adopting an ultimate test.
Judge Dawson studiously avoids the use of the word “capricious,” so I think it can be inferred that he is not equating his ultimate test of arbitrariness with capriciousness. On the other hand, the majority’s characterization of petitioner’s burden herein as requiring it to show that “there existed insubstantial evidence to support respondent’s determination” seems to me to be capable of interpretation that, in such an eventuality, the determination would be “arbitrary and unreasonable.”
A similar problem, akin to that which we face, in applying section 7477(a)(2), arises under section 7429, where district courts have the authority to review jeopardy assessments in order to determine whether the assessment is “reasonable under the circumstances.” See sec. 7429(b)(2)(A). Three district courts have had occasion to analyze what is required of them in making their determination and all three have borrowed, as the majority opinion herein does, from the lore of judicial review under the Administrative Procedures Act and have defined the standard to be applied as “something more than ‘not arbitrary or capricious’ and something less than ‘supported by substantial evidence.’ ” McAvoy v. United States, 475 P. Supp. 297 (W.D. Mich. 1979); Santini v. United States, — F. Supp. — (N.D. Cal. 1979); Loretto v. United States, 440 F. Supp. 1168, 1172 (E.D. Pa. 1977). Here, too, an ultimate test is not articulated.
It may be that the differing nuances in the decided cases represent no more than the linguistic difficulties inherent in expressing both the ultimate test and the quantum of evidence needed in determining how to apply that test. See Loretto v. United States, 440 F. Supp. at 1172 n. 9. Compare Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), wherein the Supreme Court suggested that the reviewing court should decide whether the administrative agency made a “clear error of judgment,” a test which admittedly has its own insufficiency in terms of a standard of measurement.
Under these circumstances, one can only hope that seeming distinctions, which may do no more than reflect variations in modes of expression, ought not to be accorded undue significance. The bricks of the house may well be the same; only the mortar may be different. See K. Davis, Administrative Law of the Seventies, pp. 646-654 (1976).
Although the decided cases are not always clear as to whether there is any difference between “arbitrary” and “unreasonable,” it seems to me that they are simply two sides of the same coin. See Chaum v. Commissioner, 69 T.C. 156, 162 (1977).