*1565 Held that the settlement agreement between petitioner and the Shipping Board was a lump-sum settlement and did not make any allowance for amortization specifically as such.
*182 This proceeding was brought to redetermine the deficiencies in income and excess-profits taxes of the petitioner for the fiscal years ending June 30, 1918, June 30, 1920, and June 30, 1923, in the amounts of $10,945.54, $39,689.48, and $1,262.10, respectively. By his amended answer the respondent prayed that the alleged deficiency for the fiscal year ending June 30, 1918, be increased from $10,945.54 to $29,101.19.
The petitioner places the following points in issue:
(1) The petitioner's net income for the fiscal year ending June 30, 1918, was improperly increased by the respondent by adding to it the sum of $72,122.84 representing depreciation asserted to have been charged off during that fiscal year.
(2) The petitioner's net income for the fiscal year ending June 30, 1918, was not $77,181.74 or any sum in excess of $5,058.90.
*1566 (3) The petitioner's amortization period ended on June 30, 1920, instead of August 25, 1919, as determined by the respondent.
(4) The residual value of land, buildings, machinery and equipment constituting the petitioner's war plant was not $56,349.48 as determined by the respondent nor any sum in excess of $10,000. The petitioner modified this allegation to exclude land.
(5) The allowance for "contractual amortization" was unwarranted since the petitioner received no such amortization or any amortization specifically as such in its settlement with the United States Shipping Board.
*183 (6) The total amortization allowance to the petitioner should be $231,819.90 and should be spread in accordance with the net income received by the petitioner during the years within the amortization period.
FINDINGS OF FACT.
The petitioner is a corporation organized May 3, 1917, with an authorized capital of $100,000, of which $60,000 was paid in, for the purpose of constructing wooden ships for the United States Shipping Board Emergency Fleet Corporation (hereinafter called the Fleet Corporation) under war contracts. Immediately after its organization it purchased a small*1567 plant at Astoria, Oregon, used for building small boats, and remodeled, enlarged and adapted it to the construction of large ships.
August 17, 1917, the petitioner entered into a lump-sum contract with the Fleet Corporation to build three 3,500-ton Ferris type wooden hulls at $300,000 per hull (increased to $352,500 by supplemental agreements). By subsequent contracts the petitioner agreed to construct seven additional hulls of the same size and type. The contract stipulated the delivery of the completed hulls. The petitioner had no cost-plus contracts.
Six hulls were completed and delivered. In March, 1919, the Fleet Corporation canceled the contracts for the remaining four. Hull No. 7, known as The Egeria, was ordered converted into a barge. It was launched on August 20, 1919, and completed during November, 1919. It was delivered in December, 1919, or January, 1920. Hull No. 8 was 30 or 40 per cent completed at the time the contracts were suspended. Under the cancellation agreement it was taken over by the Fleet Corporation, but remained on the ways of the petitioner. In April, 1920, the petitioner purchased it. In June or July, 1919, the Fleet Corporation*1568 assumed control and ownership of a large amount of materials and supplies purchased by the petitioner for the completion of its contracts. Such materials filled the petitioner's shipyard. They were removed therefrom during the summer or fall of 1920. From the organization of the petitioner until April, 1920, it devoted its entire attention and facilities to completing its contracts with the Fleet Corporation, with the exception of a small amount of repair work done for river boats and barges, producing inconsequential income. The petitioner was required to maintain its plant until late in January, 1920, in order to complete The Egeria, to handle the materials and supplies above described and to take care of Hull No. 8. For the benefit of the Fleet Corporation the petitioner's yards were required to keep Hull No. 8 on the ways until April, 1920, and to store the materials and supplies until the summer or fall of 1920. After the cessation of Government work the petitioner *184 continued to use its plant for part-time and small jobs such as river and repair work. The petitioner's amortization period extended from January 1, 1918, to January 31, 1920, inclusive.
*1569 In arriving at the net income of $5,620.08 for the fiscal year ending June 30, 1918, the petitioner charged off no sum for depreciation or amortization. The respondent added $72,122.84 as "depreciation charged off." The respondent allowed depreciation of $2,884.43 for the period from July 1, 1917, to December 31, 1917, inclusive.
The respondent computed the cost of the petitioner's war plant facilities, as a basis for amortization in 1917, at $226,182.91; from January 1, 1918, to June 30, 1918, at $35,611.77; from July 1, 1918, to December 31, 1918, at $16,193.27; and from January 1, 1919, to June 30, 1919, inclusive, at $1,717.28; or a total cost of $279,704.33. The respondent allowed a net residual value of $56,349.48. The residual or actual value of the petitioner's war plant facilities on January 31, 1920, was $45,000.
After completing its Government work the petitioner filed its claim against the Fleet Corporation for $874,875.77. Included in that claim was an item of $165,720 representing amortization of plant and facilities at the rate of $27,620 per hull. The United States Shipping Board reduced the gross claim to $608,027.92, deducted debits of $358,027.92 and*1570 made a net cash award of $250,000. There was no itemization of the allowance or the debits. The settlement of the petitioner's claim was made on a lump-sum basis and contained no allowance for amortization specifically as such. On April 4, 1923, the settlement contract was executed by the petitioner and by the United States Shipping Board and contained the following material provisions:
WHEREAS, on August 16, 1917, the Fleet Corporation entered into Contract 70 with the party of the first part, which provided for the construction of three hulls Ferris type at the price of $300,000.00 each, which price was subsequently increased to $352,500.00 per hull * * *
WHEREAS, the party of the first part has filed with the Shipping Board its claim in the premises in the total sum of $874,875.77; and
WHEREAS, on March 19, 1923, the United States Shipping Board duly approved, ratified and confirmed the recommendation of its special committee on claims that said claim be settled by paying to the party of the first part the sum of $250,000.00.
Now, THEREFORE, in consideration of the premises, and the mutual covenants herein contained, and upon other good and valuable considerations, it*1571 is agreed by the parties hereto as follows:
FIRST
The Fleet Corporation will pay to the party of the first part, upon execution and delivery of this agreement the aforesaid sum of $250,000 in full settlement of this claim, and will also assume the settlement of the commitments of the *185 party of the first part to Doud MacFarlane Machinery Company, Order No. 3164, Fleet Corporation Serial No. 1868, and to Overmire Steel Construction Company, Order No. P.O. 2850, Fleet Corporation Serial No. 1923.
SECOND
The party of the first part agrees to accept said sum of Two Hundred and Fifty Thousand Dollars ($250,000.00) in full settlement of its aforesaid claim, and does hereby covenant and agree to remise, release and forever discharge and by these presents does for itself, its successors and assigns remise, release and forever discharge the United States Shipping Board and the United States Shipping Board Emergency Fleet Corporation * * * of and from all manner of controversies, claims, accounts, actions, demands, suits, damages, judgments, executions, recoveries, costs and expenses whatsoever * * *.
The respondent reduced the cost of the petitioner's facilities subject*1572 to amortization by $67,091.16 as representing the amount of such cost included in its said settlement with the Fleet Corporation.
OPINION.
VAN FOSSAN: We will consider the issues in the order named. The respondent added to the petitioner's income for the fiscal year ending June 30, 1918, the sum of $72,122.84 as "depreciation charged off." During that year the petitioner received no income from Government contracts. Its principal revenue was derived from repairs to small fishing boats and river craft. Its net income was reported at $5,620.08. It charged off no sum on account of depreciation in arriving at this figure of net income. Respondent was in error in adding the sum of $72,122.84 to petitioner's income.
Exclusion of the item of $72,122.84 and the adoption of the remaining income of $5,058.90. We find this amount to be the correct net income of the petitioner for the fiscal year ending June 30, 1918. income of the petitioner for the fiscal year ending June 30, 1918.
We have found as a fact that the petitioner's amortization period extended from January 1, 1918, to January 31, 1920, inclusive. That period may be taken as the basis for applying the allowance*1573 for amortization, which should be spread in proportion to the net income in the respective taxable years within the amortization period. ; , .
The residual value of the petitioner's building, machinery and equipment, exclusive of land, constituting its war plant on January 31, 1920, was $45,000. That amount may be taken as a factor in computing the amortization allowance.
Section 234(a)(8) of the Revenue Act of 1918 provides as follows:
*186 (a) That in computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions:
* * *
(8) In the case of buildings, machinery, equipment, or other facilities, constructed, erected, installed, or acquired, on or after April 6, 1917, for the production of articles contributing to the prosecution of the present war, and in the case of vessels constructed or acquired on or after such date for the transportation of articles or men contributing to the prosecution of the present war, there*1574 shall be allowed a reasonable deduction for the amortization of such part of the cost of such facilities or vessels as has been borne by the taxpayer, but not again including any amount otherwise allowed under this title or previous acts of Congress as a deduction in computing net income. * * *
Article 181 of Regulations 62 defines the respondent's construction of the foregoing provision as follows:
All allowances made to a taxpayer by a contracting department of the Government, or by any other contractor, for amortization specifically as such, shall be treated as a reduction of the cost of the taxpayer's plant investment. Further amortization is allowable only in respect of such reduced cost. Where no such allowance has been made the amount of amortization to be allowed as a deduction from gross income, for the purpose of the tax, shall be computed in accordance with the provisions of articles 181 to 189, pursuant to which the deduction must be made, and not upon the basis of any amount contractually or otherwise determined.
The settlement contract between petitioner and the Shipping Board provided for a cash payment of $250,000 in full satisfaction of all claims. There*1575 was no itemization of allowances and the contract indicated no allowance for amortization specifically as such. The testimony is that this was a lump-sum settlement. There is no contrary evidence and the fair inference supports the conclusion that no amortization was contained in the allowance of $250,000. We are of the opinion that petitioner is entitled to amortization. ;.
The petitioner concedes deficiencies for the fiscal years ending June 30, 1918, and June 30, 1923, in the amounts of $151.77 and $1,262.10, respectively. Adjustments in conformity with this opinion will be made in the income and excess-profits taxes due for those years.
Judgment will be entered under Rule 50.