Foskett & Bishop Co. v. Commissioner

Foskett & Bishop Company, Petitioner, v. Commissioner of Internal Revenue, Respondent

Foskett & Bishop Co. v. Commissioner

Docket No. 24127

United States Tax Court

16 T.C. 456; 1951 U.S. Tax Ct. LEXIS 265;

February 27, 1951, Promulgated

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Decision will be entered for the respondent.

Petitioner is engaged primarily in the business of installing pipes to carry steam, water, and oil in nonresidential buildings. It paid excess profits tax for the years 1941, 1942, 1943, and 1945 and filed applications for relief under section 722 of the Internal Revenue Code for all four years which were disallowed by the Commissioner. Held, petitioner failed to establish that its excess profits tax for the calendar years 1941, 1942, 1943, and 1945, computed without the benefit of section 722, as amended, was excessive and discriminatory because of the factors mentioned in section 722 (b) (2), 722 (b) (3), and 722 (b) (5).

Albert E. James, Esq., for the petitioner.

Irene F. Scott, Esq., and William J. Stetter, Esq., for the respondent.

Black, Judge.

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BLACK

This proceeding is for a review of the respondent's disallowance of petitioner's applications for excess profits tax relief under section 722 of the Internal Revenue Code, as amended, for the calendar years 1941, 1942, 1943, and 1945. The notice of disallowance was sent and the petition for redetermination was filed in accordance with section 732 of the Internal Revenue Code.

Petitioner's excess profits tax liabilities for the years 1941, 1942, 1943, and 1945, determined without benefit of section 722 are $ 1,441.51, $ 9,139.85, $ 2,922.98, and $ 558.80, respectively. The petition alleges that the amount of taxes in controversy is in the total amount of $ 14,063.14, which is the total excess profits tax liability for all four years; however, petitioner's application for relief and claim for refund for the year 1945 is in the amount of $ 464.21 and, therefore, as to the year 1945 petitioner has limited itself to this amount of relief.

In its petition error was assigned as follows:

(b) The Commissioner erroneously denied relief under said Section 722 of the Internal Revenue Code under the provisions of Section 722 (a) and the several subdivisions of Section 722 (b) and in particular denied relief under the provisions of Section 722 (b) (5).

At the hearing petitioner stated that it was not seeking relief under subsections (b) (1) or (b) (4) of section 722. This leaves for our determination whether petitioner has established its right to relief under subsections (a), (b) (2), (b) (3), or (b) (5) of section 722, as amended.

FINDINGS OF FACT.

Petitioner is a corporation organized in 1893 under the laws of the State of Connecticut with its office and principal place of business in New Haven. The returns for the years here involved were filed with the collector for the district of Connecticut.

Since petitioner was in existence during the entire base period, the calendar years 1936 through 1939, it is entitled to use the excess profits credit based on income under the provisions of section 713 of the Internal Revenue Code, but for each of the years 1941, 1942, 1943, and 1945, its excess profits credit used in the final determination of its excess profits tax liability, without the application of section 722, was computed on the invested capital method under section 714 of the Internal Revenue Code since the computation on the invested capital method resulted in the lesser excess profits tax.

Petitioner's excess profits credits computed under the invested capital method which were used in computing petitioner's excess profits tax liability, as finally determined for each of the years 1941, 1942, 1943, and 1945, were $ 3,213.33, $ 3,766.52, $ 4,367.65, and $ 5,440.84, respectively.

Petitioner's excess profits net income or (loss) for each of the base period years, as computed under section 711 (b), without the application of section 722, is as follows:

1936	($ 1,631.74)
1937	2,327.98
1938	(222.37)
1939	2,368.94

At all times material hereto the bulk of petitioner's business has been the installation in nonresidential buildings of pipes to carry steam, water, and oil. Petitioner also installed automatic sprinkler systems and, prior to and during the base period, had one employee who was a specialist in the installation of residential plumbing.

Petitioner's plant was, and is, the largest and best equipped plant in its area of operations which is an area within a 25- to 30-mile radius of New Haven, Connecticut. The petitioner frequently cut and threaded pipe and fittings for competitors whose plants were not equipped as well as that of petitioner.

Noble Bishop, a founder of petitioner, was president and chief executive officer of petitioner until his death in 1927. From 1928 to the fall of 1932, R. L. Bishop was president and, from 1932 to January 1941, W. C. Jacques was president, treasurer, and general manager.

Jacques first entered the employ of petitioner in 1893 or 1894 and worked as a salesman, and later as a salesman and secretary of petitioner until his retirement in 1928. He had a reputation of being a very effective outside contact man. Upon being recalled from retirement in the fall of 1932, Jacques succeeded R. L. Bishop as president of petitioner and he directed the company until he again retired in 1941. Jacques remained exceptionally active until 1934 or 1935, when he became ill; however, he continued to be in the office a reasonable length of time each day. In 1939, as a result of an operation on his throat, Jacques lost the power of speech completely. Jacques continued to carry on his duties as well as he had been doing for two or three years prior thereto.

In 1941, George H. Eaton acquired control of the majority of petitioner's stock and in that year he became president and treasurer of petitioner. From September 1928 when Eaton was employed by petitioner as an estimator engineer, he remained with petitioner (except for a short period in 1932) in that capacity until he became president in 1941.

Prior to and during the base period years 90 per cent of petitioner's customers were obtained by competitive bidding. Between the years 1928 and 1939, petitioner obtained approximately 15 per cent of the contracts it bid upon. From 1942 through 1945, there was very little competitive bidding as sales were obtained primarily as a result of customers' requests for petitioner to do a particular job, and some of petitioner's business was connected with the war effort.

In preparing a bid for submission to a prospective customer, two estimates are customarily prepared by petitioner. The first estimate, commonly called the primary estimate, is prepared by an estimator. The primary estimate is theoretically the petitioner's out-of-pocket expense of doing a job and does not include overhead expense and profit, however, it does include any fees to be paid to a subcontractor. The second estimate which is the bid submitted to a prospective customer is the primary estimate, plus approximately 20 per cent for overhead expense and profit. The following tables show the total amount of all contracts bid upon and received by petitioner for each of the years 1920 through 1939, and the average number and the average size of these contracts:

	No. of	New building	Old building
Year	contracts			Total
1920	35	(1)		$ 144,825.00
1921	19			25,237.45
1922	36			223,917.80
1923	31			96,891.20
1924	25			74,699.65
1925	26			49,892.50
1926	34			45,856.38
1927	34			49,190.00
1928	29			49,239.03
1929	33	$ 59,342.60	$ 47,750.00	107,092.60
1930	52	85,538.08	108,274.00	193,812.65
1931	30	109,147.92	37,671.54	146,819.46
1932	8	1,560.00	None	1,560.44
1933	33	50,598.94	8,561.39	59,160.33
1934	30	6,436.00	24,936.46	31,372.46
1935	24	6,840.00	22,383.31	21,223.31
1936	47	26,906.71	19,092.96	45,999.67
1937	59	64,368.64	20,092.24	84,460.88
1938	55	39,582.59	23,672.70	63,255.29
1939	54	65,804.10	38,163.55	103,967.65

	Contracts	Average	Largest
Year	over $ 30,000	contract	contract
1920	None	$ 4,137.86	$ 23,274.00
1921	None	1,328.29	7,700.00
1922	$ 55,000.00	6,219.94	55.000.00
	49,219.00
1923	32,150.00	3,125.52	32,150.00
1924	None	2,987.99	26,000.00
1925	None	1,918.94	12,008.00
1926	None	1,348.72	5,600.00
1927	None	1,446.76	8,595.00
1928	None	1,697.90	10,000.00
1929	30,564.00	3,245.23	30,564.00
1930	None	3,727.17	22,226.78
1931	50,462.52	4,893.98	50,462.52
	50,417.00
1932	None	195.06	490.00
1933	None	1,792.74	21,655.00
1934	None	1,045.75	16,500.00
1935	None	884.30	7,879.00
1936	None	978.72	6,397.00
1937	None	1,431.54	20,350.00
1938	None	1,150.10	13,900.00
1939	34,618.00	1,925.33	34,618.00

	Yearly
	average of
	total contracts
Period	received
1920-39	$ 74,420.87
1922-39	80,467.29
1936-39	80,923.69

The following table summarizes the list of contracts bid on but not awarded to petitioner for the years 1937, 1938, and 1939:

			Average
Year	Number of	Total amount	amount of all
	contracts	of all bids	bids
1937	45	$ 658,103.00	$ 14,624.51
1938	37	529,534.00	14,311.73
1939	26	575,281.64	22,126.22

Contracts over $ 30,000 bid on but not awarded to petitioner:

1937	1938	1939
$ 244,900.00	$ 57,390.00	$ 70,157.64
109,600.00	32,390.00	101,800.00
41,300.00	55,830.00	48,603.00
	31,948.00	85,500.00
	40,350.00
$ 395,800.00	$ 217,908.00	$ 306,060.64

The following table compares the profits and losses and officers' salaries of petitioner with the average of four of its competitors for the years 1922 through 1939, and shows the profits of all corporations and the available business in the New Haven area:

				One-fourth
		Av. profit		of av. salaries
	Petr's	or loss of	Petr's	of
Year	profit or	petr's 4	offcrs' sal.	petr's. 4
	loss	competitors		competitors
1922	($ 8,564.96)	$ 10,524.25	$ 21,500.00	$ 19,108.50
1923	(19,257.22)	24,021.50	21,500.00	16,601.75
1924	2,167.24	28,948.75	21,500.00	15,262.25
1925	(2,212.35)	37,100.75	21,500.00	17,593.25
1926	(12,390.20)	35,198.50	21,500.00	17,844.50
1927	(4,090.33)	20,170.50	18,062.50	16,780.50
1928	(1,527.29)	28,734.00	10,000.00	18,975.50
1929	3,187.56	34,168.75	10,000.00	16,477.00
1930	(2,129.83)	6,002.00	10,250.00	15,338.25
1931	(17,315.65)	(5,915.00)	9,935.00	13,829.25
1932	(21,197.04)	(23,824.50)	7,470.00	13,062.25
1933	2,166.56	(6,380.75)	5,770.00	11,357.00
1934	(5,113.24)	2,298.25	5,620.00	10,986.50
1935	(1,388.85)	(6,204.25)	5,620.00	10,428.50
1936	(1,656.74)	5,582.25	5,455.00	11,690.00
1937	2,327.98	10,524.50	5,470.00	14,787.50
1938	(222.37)	(2,998.25)	5,470.00	14,366.50
1939	2,368.94	(1,877.75)	5,680.00	12,490.00

	Petr's. net	Available
	income or	business	General
	loss plus	index	business
	offcrs' sal.	New	index
Year	less av.	Haven	1922-
	offcrs' sal. of	area	1939 = 100
	petr's. 4	1922-
	competitors	1939 = 100
1922	($ 6,173.46)	98.6	138.9
1923	(14,358.87)	144.3	183.7
1924	8,400.00	99.6	156.2
1925	1,694.40	149.3	221.9
1926	(8,734.70)	177.5	218.5
1927	(2,808.33)	193.6	189.6
1928	(10,502.70)	120.0	239.6
1929	(3,289.44)	219.5	254.5
1930	(7,218.08)	176.9	45.2
1931	(21,209.90)	100.7	(95.7)
1932	(26,789.29)	38.5	(164.3)
1933	(3,420.44)	23.1	(74.2)
1934	(10,479.47)	37.2	2.7
1935	(6,197.35)	34.2	49.4
1936	(7,891.74)	35.6	127.3
1937	(6,989.52)	91.7	128.3
1938	(9,118.87)	54.5	46.8
1939	(4,441.06)	59.9	131.3

Average profit or loss
		Petitioner's
	Petitioner	four competitors
1922-1939	($ 4,713.76)	$ 10,893.00
1936-1939	704.45	2,807.75

The following table compares petitioner's net sales with the mean net sales of its four competitors:

			Percentage of
	Mean net sales	Petitioner's net	petr's. sales to
Year	of petr's. 4	sales	competitor's
	competitors		mean sales
1922	$ 351,247.25	$ 199,007.21	56.66
1923	385,474.43	254,436.90	66.01
1924	489,273.50	184,148.72	37.64
1925	588,673.00	121,260.99	20.60
1926	458,342.00	114,974.56	25.85
1927	459,764.75	109,040.88	23.72
1928	466,198.75	93,540.44	20.06
1929	573,430.75	128,023.68	22.33
1930	531,616.75	240,775.89	45.29
1931	499,066.75	126,691.21	25.38
1932	235,450.50	36,070.18	15.32
1933	276,401.25	72,947.45	26.39
1934	276,439.25	43,701.08	15.81
1935	251,448.00	48,083.80	19.12
1936	316,914.50	60,790.92	19.18
1937	349,329.50	94,383.76	27.02
1938	325,122.00	85,095.16	26.17
1939	372,601.25	120,259.43	32.28

		Percentage of
	Reconstructed	petitioner's
Year	net sales	sales asked for
	asked for by	to competitors'
	petitioner	mean sales
1922
1923
1924
1925
1926
1927
1928
1929
1930
1931
1932
1933
1934
1935
1936	$ 200,000.00	63.11
1937	226,004.36	64.70
1938	191,001.96	58.75
1939	235,815.76	63.29

The following table shows the net sales of petitioner in ascending order and the net profit or loss before taxes for each year:

		Net profit (or
		loss) before
Year	Net sales	Federal income
		taxes
1932	$ 36,070.18	($ 21,197.04)
1934	43,701.08	(5,113.24)
1935	48,083.80	(1,388.85)
1936	60,790.92	(1,656.74)
1933	72,947.45	2,166.56
1938	85,095.16	(222.37)
1928	93,540.44	(1,527.29)
1937	94,383.76	2,327.98
1927	109,040.88	(4,090.33)
1926	114,974.56	(12,390.20)
1939	120,259.43	2,368.94
1925	121,260.99	(2,212.35)
1931	126,691.21	(17,315.65)
1929	128,023.68	2,187.56
1924	184,148.72	2,167.24
1922	199,007.21	(8,564.96)
1930	240,775.89	(2,129.83)
1923	254,436.90	(19,257.22)

Petitioner submitted a constructive average base period net income of $ 12,937.88, which was arrived at by increasing its gross income for 1937, 1938, and 1939 by 20 per cent of the contracts bid on but not awarded it, and by increasing its gross income for 1936 to $ 200,000 and applying each year's gross profit ratio to the increased amount. Deductions were increased by certain percentages which petitioner's president testified would be applicable in the case of increased business. The entire basis for this constructive net income is that petitioner, under management more aggressive than W. C. Jacques, would have had larger sales.

Petitioner has also submitted constructive average base period net incomes as follows:

(1) $ 15,368.71 -- Petitioner's average book profit, plus actual officers' salaries from 1920-1927, less assumed officers' salaries of $ 6,000.

(2) $ 13,868.71 -- Petitioner's average book profit, plus actual officers' salaries from 1920-1927, less assumed officers' salaries of $ 7,500.

(3) $ 10,893 -- The average net income of petitioner's four competitor corporations from 1922-1939.

(4) $ 13,203 -- The average net income of petitioner's four competitor corporations from 1922-1935.

Petitioner's profits pattern differs from that of its four representative competitors, and from the building construction index on a national scale and from the building construction index of the New Haven, Connecticut, area. Petitioner's profits pattern is also at variance with the general business cycle because of noncyclical influences.

OPINION.

The question presented is whether petitioner is entitled to any relief from excess profits tax for the calendar years 1941, 1942, 1943, and 1945, under the provisions of section 722 of the Internal Revenue Code, as amended.

A taxpayer is entitled to relief under section 722 if it establishes that its excess profits tax computed without the benefit of section 722 is "excessive and discriminatory" and establishes "a fair and just amount representing normal earnings" to be used as a constructive average base period net income. Section 722 (a), Internal Revenue Code. ¹

The normally computed excess profits tax shall be considered to be excessive and discriminatory if the average base period net income is an inadequate standard of normal earnings because of several specified reasons which are given in subsections (1), (2), (3), (4), and (5) of section 722 (b). Petitioner first claims that subsection (b) (2) ² is applicable to it. To qualify for relief under subsection (b) (2), it must first be shown that "the business of the taxpayer was depressed in the base period * * *." An examination of petitioner's earnings from 1922 through 1939, shows that for these years petitioner suffered an average net loss of $ 4,713.76, while for the base period years 1936 through 1939, petitioner showed an average profit of $ 704.45. It, therefore, seems that petitioner has not established its right to relief under section 722 (b) (2), for it would be ignoring the facts to find that petitioner's business was depressed in the base period as compared to its earnings for the average long term period 1922 to 1939. Winter Paper Stock Co., 14 T.C. 1312">14 T. C. 1312. Cf. Monarch Cap Screw & Manufacturing Co., 5 T. C. 1220.

Petitioner claims, however, that its normal earnings can only be represented by eliminating the actual salaries paid to its officers and substituting therefor a salary constant of $ 6,000 or $ 7,500. This would, in petitioner's estimation, represent a fair and just salary for its officers and would, for the most part, convert the losses prior to the base years into profits and would convert all the profits in base years to losses. Respondent has not determined, nor does petitioner suggest, that the larger salaries paid prior to the base years were excessive and unreasonable for the purposes of section 23 (a) (1) (A), I. R. C., and petitioner had the benefit of these deductions even though they might have been, as petitioner implies, a distribution of profits in the form of salaries. To revise petitioner's reported profits on the basis that petitioner suggests would be giving petitioner the benefit under section 722 of something for which it has already received a benefit under another section of the Code and we cannot find any authority for making the adjustment requested by petitioner. Cf. Clinton Carpet Co., 14 T. C. 581; Park and 46th Street Corporation, 14 T.C. 588">14 T. C. 588.

Petitioner claims that because Jacques, petitioner's president from 1932 and during the base period, was not aggressive, due partially to the fact that he was suffering from a throat ailment, petitioner did not obtain the business it normally would have obtained under proper management. Petitioner claims that this condition of its management represents a temporary economic circumstance unusual for it under section 722 (b) (2). Even if we were to assume that petitioner's business was depressed in the base period, we would nevertheless hold that petitioner was not depressed because of a temporary economic circumstance as the circumstance of poor management cannot be construed to be an economic circumstance, but rather it is one entirely within the control of the taxpayer. The Bulletin on section 722 of the Internal Revenue Code, part III, page 16, issued by the Commissioner on November 2, 1944, provides:

The term "economic" includes any event or circumstance, general in its impact or externally caused with respect to a particular taxpayer, which has repercussions on the costs, expenses, selling prices, or volume of sales of either an individual taxpayer or an industry. Thus, not every event or circumstance which has an adverse effect on a taxpayer's profits may serve to qualify that taxpayer for relief under subsection (b) (2). First, the temporary and unusual character of the circumstance or event must be clearly established. Second, the cause of the temporary depression must be shown to be external to the taxpayer, in the sense that it was not brought about primarily by a managerial decision. A taxpayer cannot qualify for relief under subsection (b) (2) because its earnings were temporarily reduced in the base period in consequence of its own business policies, internally determined. * * *

The foregoing provision contained in the Bulletin is in harmony, we think, with the general provisions of section 35.722-3 (b) of Regulations 112, printed in the margin. ³

Petitioner has claimed unaggressive management under Jacques and management drawing excessive salaries under its two prior presidents which indicates that even in petitioner's estimation its management from 1922 to 1939 was never of the caliber petitioner claims it should have been. Thus, the circumstance of poor management cannot even be termed temporary within the meaning of section 722 (b) (2). Cf. Winter Paper Stock Co., supra.

On all the facts we hold that petitioner has not shown a right to relief under section 722 (b) (2).

Petitioner next claims relief under section 722 (b) (3). ⁴ As under section 722 (b) (2) petitioner must establish that its business during the base period was depressed. We have in our discussion of petitioner's claim under section 722 (b) (2) pointed out that petitioner's business was not depressed; however, even assuming again that petitioner's business was depressed, petitioner has not shown that it was depressed by reason of conditions prevailing in an industry of which petitioner was a member and that petitioner was subjected to a profits cycle differing materially in length and amplitude from the general business cycle. See Roy Campbell, Wise & Wright, Inc., 15 T. C. 894. Petitioner's profits pattern varies from that of its four competitors and any condition which subjected petitioner to a profit cycle differing materially in length and amplitude from the general business cycle was not a result of conditions generally prevailing in the industry, but was due to factors noncyclical such as the poor management which petitioner claims and "The accuracy of managerial judgment is susceptible of no cyclical pattern." El Campo Rice Milling Co., 13 T. C. 775.

At the hearing of this proceeding petitioner stated that subsection 722 (b) (3) (B) "does not seem to have much significance to our facts" and petitioner has not presented evidence relating to this subsection nor has any argument been advanced to support a claim thereunder and we, therefore, hold that section 722 (b) (3) (B) is inapplicable to petitioner.

Petitioner's final claim for relief is under section 722 (b) (5). ⁵ The basis for petitioner's argument as under (b) (2) is that it is entitled to relief within this subsection because during the base period years petitioner, under its president W. C. Jacques, lost many contracts which under proper management petitioner would have received. Petitioner claims that its allegedly unaggressive management is "any other factor" under (b) (5). Petitioner is aware of the limitations of section 722 (a) regarding the limitations of using post 1939 events or conditions in determining the constructive average base period net income; however, petitioner points to the excellent profit record from 1941 through 1945, which, of course, includes the war years, under George H. Eaton, its president and sole witness in this proceeding, to show what good management would have done for petitioner in the base period. It is petitioner's contention that if during the base period years it had had a manager of Eaton's ability petitioner would have received 20 per cent of the contracts which it bid on but did not receive during the years 1937, 1938, and 1939, and for the year 1936 its gross sales would have been $ 200,000.

In order for petitioner to be entitled to relief under subsection (b) (5), petitioner must satisfy this Court that its claim is consistent with the principles underlying the other subsections of 722 (b). George Kemp Real Estate Co., 12 T. C. 943, affirmed on another question 182 Fed. (2d) 847, certiorari denied, 340 U.S. 852">340 U.S. 852. We believe that to hold petitioner eligible for relief for what we shall for the moment consider to be unaggressive management would be inconsistent with subsection (b) (4). Subsection (b) (4) would establish petitioner's eligibility for relief if petitioner changed the management of its business during or immediately prior to the base period. Cf. 7- Up Fort Worth Co., 8 T.C. 52">8 T. C. 52. However, petitioner did not change its management until after the base period and to consider what other management would have done during the base period would be speculative and would be tantamount to changing the character of petitioner's business during the base period by substituting new management for petitioner in the base period which petitioner itself did not do. Such a result we do not think is authorized by section 722 (b) (5). We, therefore, hold that petitioner is not eligible for relief under section 722 (b) (5).

In our findings of fact we have set out the constructive average base period net incomes submitted by petitioner to cover varying circumstances. In East Texas Motor Freight Lines, 7 T. C. at page 587, we set out the primary requirements of proof for a taxpayer to get relief under section 722. In that case we said:

Under the statute petitioner must establish (1) that the tax computed without the benefit of section 722 results in an excessive and discriminatory tax and (2) a fair and just amount representing normal earnings to be used as a constructive average base period net income. If petitioner establishes these two requirements, then the tax shall be determined by using such constructive average base period net income in lieu of the actual average base period net income otherwise determined under the statute. In determining (2) no regard shall be had to events or conditions affecting petitioner, the industry of which it is a member, or taxpayers generally occurring or existing after December 31, 1939, with certain exceptions not material here.

As we have already pointed out, petitioner, in the instant case, has not proved (1) above, that is to say, that it has statutory grounds for relief. Not having established grounds for relief under either of the subsections contained in section 722 (b), no useful purpose would be served in discussing the several constructive average base period net incomes submitted by petitioner. We, therefore, omit any discussion with respect thereto.

Because petitioner has not shown that its excess profits tax computed without the benefit of section 722 is excessive and discriminatory, petitioner is not entitled to an excess profits tax credit greater than the one computed under section 714 and we, therefore, hold that respondent properly disallowed petitioner's claim for relief under the provisions of section 722 (b) (2), 722 (b) (3), and 722 (b) (5), I. R. C.

Decision will be entered for the respondent.

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Footnotes

• 1. Where no figure appears, information not available.↩

• 1. SEC. 722. GENERAL RELIEF -- CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME.

  (a) General Rule. -- In any case in which the taxpayer establishes that the tax computed under this subchapter (without the benefit of this section) results in an excessive and discriminatory tax and establishes what would be a fair and just amount representing normal earnings to be used as a constructive average base period net income for the purposes of an excess profits tax based upon comparison of normal earnings and earnings during an excess profits tax period, the tax shall be determined by using such constructive average base period net income in lieu of the average base period net income otherwise determined under this subchapter. In determining such constructive average base period net income, no regard shall be had to events or conditions affecting the taxpayer, the industry of which it is a member, or taxpayers generally occurring or existing after December 31, 1939, except that, in cases described in the last sentence of section 722 (b) (4) and in section 722 (c), regard shall be had to the change in the character of the business under section 722 (b) (4) or the nature of the taxpayer and the character of its business under section 722 (c)↩ to the extent necessary to establish the normal earnings to be used as the constructive average base period net income.

• 2. SEC. 722. GENERAL RELIEF -- CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME.

  * * * *

  (b) Taxpayers Using Average Earnings Method. -- The tax computed under this subchapter (without the benefit of this section) shall be considered to be excessive and discriminatory in the case of a taxpayer entitled to use the excess profits credit based on income pursuant to section 713, if its average base period net income is an inadequate standard of normal earnings because --

  * * * *

  (2) the business of the taxpayer was depressed in the base period because of temporary economic circumstances unusual in the case of such taxpayer or because of the fact that an industry of which such taxpayer was a member was depressed by reason of temporary economic events unusual in the case of such industry,↩

• 3. Sec. 35.722-3 (b) Business depression in base period on account of temporary economic circumstances. -- If the taxpayer establishes that its business was depressed in the base period because of temporary economic circumstances unusual in the case of such taxpayer or because of the fact that an industry of which the taxpayer was a member was depressed by reason of temporary economic circumstances unusual in the case of such industry, the average base period net income of the taxpayer shall be considered to be an inadequate standard of normal earnings. For the purposes of this subsection a business shall be considered to be depressed if it realized low earnings or operating losses which resulted from such factors as a low volume of output of products or services, from a low volume of sales, from high manufacturing costs, from low sales price, or from a combination of such factors.

  Only those economic circumstances which were temporary in the sense that they had little perceptible effect upon the long run prospects of a business, and which affected the taxpayer alone or an industry of which it was a member as distinguished from those economic events which were of a chronic or continuing character or which affected business in general, may furnish a basis for a claim for relief under section 722 (b) (2). An economic circumstance is temporary depending upon the character and nature of such circumstances rather than upon the mere length of time of its existence. Thus, the income of a declining business or industry which was depressed throughout the base period because of economic conditions of a chronic and continuing character which may be expected to depress the earnings of such business for an indefinite period is not an inadequate standard of normal earnings under section 722 (b) (2)↩. * * *

• 4. SEC. 722. GENERAL RELIEF -- CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME.

  * * * *

  (b) Taxpayers Using Average Earnings Method. -- * * *

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  (3) the business of the taxpayer was depressed in the base period by reason of conditions generally prevailing in an industry of which the taxpayer was a member, subjecting such taxpayer to

  (A) a profits cycle differing materially in length and amplitude from the general business cycle, or

  (B) sporadic and intermittent periods of high production and profits, and such periods are inadequately represented in the base period,↩

• 5. SEC. 722. GENERAL RELIEF -- CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME.

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  (b) Taxpayers Using Average Earnings Method. -- * * *

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  (5) of any other factor affecting the taxpayer's business which may reasonably be considered as resulting in an inadequate standard of normal earnings during the base period and the application of this section to the taxpayer would not be inconsistent with the principles underlying the provisions of this subsection, and with the conditions and limitations enumerated therein.↩