*951 Held, under the provisions of section 131 of the Revenue Act of 1932 petitioner is entitled to a credit for British taxes accrued.
*962 This proceeding was brought to redetermine a deficiency in the income tax of the petitioner for the fiscal year ended June 30, 1934, in the sum of $29,341.44. An overpayment of $9,124.15 is also claimed.
The petitioner alleges that the respondent erred in disallowing credits for income taxes to the extent of $26,045.87 paid to the United Kingdom of Great Britain and for income taxes paid to the Republic of France in the amount of $15,424.81. The respondent concedes that the petitioner is entitled to a credit of $14,837.33 representing income taxes paid to France and the petitioner agrees to this amount. The petitioner now claims a credit of $12,557.89 for taxes paid to Great Britain. The allowance of this amount constitutes the sole question now at issue.
FINDINGS OF FACT.
The facts were stipulated substantially as follows:
The petitioner is a Massachusetts corporation, engaged in the manufacture*952 and sale of textile machinery. During the fiscal year from July 1, 1933, to June 30, 1934, and for many years prior thereto, the petitioner carried on its business at sundry plants and offices within the United States and also at Manchester, England, and at Paris, France.
On or about Frbruary 15, 1927, the petitioner adopted as its accounting period a fiscal year ending on June 30 in each year and this fiscal period was duly accepted by the respondent. Thereafter the petitioner filed its Federal income tax returns on the basis of its fiscal year. The petitioner's return for the fiscal year commencing July 1, 1933, and ending June 30, 1934, was filed with the office of the collector of internal revenue at Boston on September 14, 1934. The petitioner duly exercised its option to claim credit for income taxes paid or accrued to any foreign country in the year in which such taxes accrued in accordance with the provisions of section 131:d) of the Revenue Act of 1932.
The business of the petitioner transacted in the Kingdom of Great Britain consisted of the sale within the Kingdom of Great Britain of textile machines and parts manufactured by the petitioner in whole or in part*953 within the United States. The petitioner's accounts with respect to its business within the Kingdom of Great Britain were kept *963 upon the basis of the same accounting period used for the petitioner as a whole, that is, since February 15, 1927, on the basis of a fiscal period ending on June 30 in each year. In accordance with this practice the accounts of the petitioner's business transacted within the Kingdom of Great Britain were made up for a period of 12 months ended on June 30, 1934, and showed a profit realized from such business during that period.
Copies of the British Income Tax Act of 1918 and the Finance Acts for the years 1919 to 1931, inclusive, as set forth in the publication entitled Stationery Office, were received in evidence. Amendments subsequent to the Fiannce Act of 1926 are not applicable to this appeal excepting as to the amount to tax imposed with respect to the petitioner's income for the fiscal year ended June 30, 1934, elsewhere mentioned herein. A copy of the decision of the British House of Lords in Wesley v. Manson, Appeal Cases, 635 :House of Lords, 1932), was also received in evidence.
Such acts are deemed to be the law of*954 Great Britain applicable to the imposition of British income taxes with respect to the income of the petitioner for the fiscal year ended June 30, 1934. The decision of the House of Lords in Wesley v. Manson is applicable to this proceeding in so far as it presents facts to which that decision may be applied. Any tax imposed upon such income in pursuance of the British Income Tax Act of 1918 as amended is an income tax within the meaning of section 131 of the Revenue Act of 1932.
In accordance with the provisions of the British Income Tax Act, as amended, the petitioner's income from business carried on within the Kingdom of Great Britain during the fiscal year ended June 30, 1934, was, as of June 30, 1934, potentially subject to the income tax imposed by that act upon two alternative bases.
If on the one hand the petitioner continued in business in Great Britain to and including April 6, 1935, its income for the fiscal year ended June 30, 1934, would be subjected to a tax for the British year of assessment April 6, 1935, to April 5, 1936, the tax for the British year of assessment April 6, 1935, to April 5. 1936, being based upon the income of the taxpayer for its*955 last fiscal period ended prior to April 6, 1935. The petitioner did in fact continue in business in Great Britain to and including April 6, 1935, and a tax was in fact determined and imposed for the British year of assessment April 6, 1935, to April 5, 1936, with respect to the petitioner's income for its fiscal year ended June 30, 1934, in the amount of Pound 2489:3:6, and such tax has been duly paid by the petitioner.
If on the other hand the petitioner permanently discontinued its business in Great Britain after June 30, 1934, and prior to April 6, 1935, it would become subject to the provisions of section 31 of the *964 British Finance Act of 1926 and its income earned during the fiscal period ended June 30, 1934, would thereupon become subjec to the income tax imposed by that section. The income tax which would have been imposed under the provisions of section 31 if the petitioner had ceased to do business after June 30, 1934, and prior to April 6, 1935, would have been identical in amount to the tax in fact assessed upon its income for the British year of assessment April 6, 1935, to April 5, 1936, to wit, Pound 2489:3:6.
The exchange rate properly applicable to*956 the British income tax payable by the petitioner with respect to its income for the fiscal period ended June 30, 1934, was $5.045 to the pound, so that the amount of British tax expressed in dollars amounts to $12,557.89. The limit on credit imposed by subsection :b) of section 131 of the Revenue Act of 1932 does not operate to limit the amount of credit allowable with respect to the British tax, so that if the Board shall determine that the petitioner is entitled to credit for any British income tax for its fiscal year ended June 30, 1934, the amount of credit allowable with respect to such tax in pursuance of the provisions of section 131 of the Revenue Act of 1932 shall be the sum of $12,557.89.
OPINION.
VAN FOSSAN: The petitioner claimed credit for accrued taxes payable to the United Kingdom of Great Britain under section 131 of the Revenue Act of 1932. 1 The agreed amount of such taxes, if credit therefor is allowable, is $12,557.89.
*957 *965 The respondent has disallowed such credit and has based his action on the decision of the Board in Columbian Carbon Co.,25 B.T.A. 456">25 B.T.A. 456. He determined that April 6, 1935, was the date of accrual under the British law. In his brief he relies also on G.C.M. 10613, C.B. XI-1, page 173, which applies the principle set forth in the Columbian Carbon Co. case to the Revenue Acts of 1924 and 1926.
In Columbian Carbon Co., supra, the Board had before it British taxes imposed by the British Income Tax Act, 1918, and attempted to be accrued by the petitioner in 1920.
After an exhaustive discussion of the question of accrual as laid down in United States v. Anderson,269 U.S. 422">269 U.S. 422, and as applied to the situation there before us, we held that not all of the events had occurred which fixed the amount of the tax and determined the liability of the taxpayer to pay it, specifically that the contingency that the taxpayer might not be in business on the first day of the assessment year, April 6, and, hence, liable to no tax, prevented accrual until that date. The principle that those discontinuing business prior*958 to the year of assessment so escaped liability for tax had been established in the decisions of the House of Lords in Brown v. National Provident Institution, 2 Appeal Cases, 222; 8 Tax Cases 57, 100 :House of Lords, 1921); and Whelan v. Henning, Appeal Cases, 293 :House of Lords, 1926).
In the Columbian Carbon Co. case, after referring to these decisions and discussing their effect, we observed:
* * * However, the 1926 Finance Act did not change the rule that where the taxpayer discontinued business prior to the beginning of the year of assessment no liability to tax for such year was incurred.
The record in the Columbian Carbon Co. case refers only to section 22 of the British Finance Act, 1926, and does not indicate that sections 31.-:1):a), 34.-:1) and 35.-:1) and :2) of that act were considered by the Board. Had those sections been called to the Board's attention and their full import appreciated, the Board would not have volunteered the observation that the Finance Act, 1926, did not change the rule that where the taxpayer discontinued business prior to the year of assessment, no liability for tax for such year was incurred. This statement was*959 clearly in error.
A careful reading and study of these various sections of the Finance Act, 1926, in view of the previous decisions of the House of Lords under the Income Tax Act, 1918, demonstrate that the Finance Act, 1926, accomplished the following changes in the British income tax law:
:1) It abolished the three-year average profit provision and substituted the full amount of profits or gains or income of the year preceding assessment.
*966 2) It made the taxpayer subject to tax even if he made no profit or had no gains during the year of assessment.
:3) If the taxpayer discontinued business, it rendered him liable for all income taxes chargeable to him whether his accounting period was concurrent with or different from the
Our conclusions in the above respects are fully supported by the observations of the authors of by Sharles, Croom-Johnson, Graham-Dixon, and Eccott, a recognized authority on British income tax, in which we find the following pertinent references:
The Finance Act, 1926, was an exceedingly important one, inasmuch as it entirely altered the basis of assessment under Schedule D from the average profits of the preceding three years to the*960 profits of the preceding year. £ Vol. I, p. 4.]
Discontinued Businesses. For the year in which the business is discontinued, the assessment is based on the actual profits, from the 6th of April of that year to the date of discontinuance * * *. £ Id., p. 8.]
Basis of Assessment. Profits, adjusted according to the Rules, of the year preceding the year of assessment * * *. £ Id., p. 8.]
Profits of Trade. * * * the assessment is based on the profits of the accounting year which ends in the calendar year immediately preceding the year of assessment * * *. £ Id., p. 10.]
It is provided that where income tax is computed on profits £ other than those in the regular Schedules] of a previous period it is to be charged though there are no profits in the year of assessment. £ Id., p. 133.]
Under the Income Tax Act, 1918, before the amendments of F.A., 1926, a person might have been assessed, say, in 1924 on the average of the profits of 1921, 1922, and 1923 at Pound 2000. But 1924 itself might have been a bumper year, producing Pound 10,000, and it might have paid him to retire on fifth April, 1925, because the Pound 10,000 had not come into the average. Now under*961 the Act of 1926 he has to pay on the last penny that he makes. £ Id., p. 136.]
The respondent admits that the case of Wesley v. Manson, Appeal Cases, 635 :House of Lords, 1932), is does not avoid tax liability by ceasing to engage in a business if the end of its fiscal year be prior to the British Government's next assessment year.
In that case the taxpayer, who had sold his business July 2, 1928, argued that the tax on his profits and gains for the year ended April 5, 1928, should be computed on his accounts for his fiscal year ended June 30, 1927, while the Crown contended that the actual profits for that year were based on his profits for his fiscal year ended June 30, 1928, properly apportioned by section 35.
The court upheld the contention of the Crown. The result of the decision was to make the taxpayer subject to a tax on all his profits up to the time of the sale of his business.
Applying these conclusions to the case at bar, we find that all the events which fixed the amount of the tax and determined the liability *967 of the taxpayer to pay it had occurred on June 30, 1934, and taxes accrued on that date.
It follows that the credit of $12,557.89*962 is allowable to the petitioner under the provisions of section 131.
Decision will be entered under Rule 50.
Footnotes
1. SEC. 131. TAXES OF FOREIGN COUNTRIES AND POSSESSIONS OF UNITED STATES.
(a) ALLOWANCE OF CREDIT. - If the taxpayer signifies in his return his desire to have the benefits of this section, the tax imposed by this title shall be credited with:
:1) CITIZEN AND DOMESTIC CORPORATION. - In the case of a citizen of the United States and of a domestic corporation, the amount of any income, war-profits, and excess-profits taxes paid or accrued during the taxable year to any foreign country or to any possession of the United States; and
* * *
:b) LIMIT ON CREDIT. - The amount of the credit taken under this section shall be subject to each of the following limitations:
:1) The amount of the credit in respect of the tax paid or accrued to any country shall not exceed the same proportion of the tax against which such credit is taken, which the taxpayer's net income from sources within such country bears to his entire net income for the same taxable year; and
(2) The total amount of the credit shall not exceed the same proportion of the tax against which such credit is taken, which the taxpayer's net income from from sources without the United States bears to his entire net income for the same taxable year.
* * *
:d) YEAR IN WHICH CREDIT TAKEN. - The credits provided for in this section may, at the option of the taxpayer and irrespective of the method of accounting employed in keeping his books, be taken in the year in which the taxes of the foreign country or the possession of the United States accrued, subject, however, to the conditions prescribed in subsection :c) of this section. If the taxpayer elects to take such credits in the year in which the taxes of the foreign country or the possession of the United States accrued, the credits for all subsequent years shall be taken upon the same basis, and no portion of any such taxes shall be allowed as a deduction in the same or any succeeding year.
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