*3326 Bags for containing fertilizer are properly the subject of inventory at cost or market whichever is lower.
*39 This proceeding is for the redetermination of a deficiency in income and profits taxes for the calendar year 1920, in the amount of $15,289.23. The petitioner has waived an issue in regard to invested capital, so that the single question in issue is the proper method for the valuation of the petitioner's inventory of supplies consisting of coal and bags for shipping fertilizer. Certain of the facts were stipulated.
FINDINGS OF FACT.
The petitioner is a West Virginia corporation with its principal offices at Savannah, Ga. It is engaged in the manufacture of fertilizer. It used bags as containers for shipping its product. A large supply of these bags was usually carried because they were imported from India, and it was necessary to contract in the early summer for delivery in the late winter or early spring. The bags were not only useful as fertilizer containers, but could be used for shipping coffee, mixed*3327 feeds, and heavy chemicals and for other purposes. They were always salable for such other purposes and the petitioner when it had an oversupply sometimes sold them to bag manufacturers, to *40 competitors and occasionally to farmers. This rarely happened, however, inasmuch as it bought as conservatively as possible.
The selling price of the fertilizer in bulk was approximately $10 a ton, while in bags it was approximately $12 a ton. Most of the fertilizer was sold in bags and these were not returned by the customers. The finished product was not kept on hand in bags, but was put in bags at the time of the sale, when the bags were printed, filled and shipped.
The petitioner's inventory of finished goods on December 31, 1920, included only acid phosphate in bulk. The petitioner has always included bags in its inventory of supplies, and as of December 31, 1920, bags and coal were both included therein.
The petitioner took its inventory for 1920 on the basis of "cost or market, whichever is lower," and reported its supply of bags as of December 31, 1920, at their market price of $54,234.35 and its supply of coal at its market price of $2,891.25. The Commissioner*3328 in his final determination increased net income for 1920 in the amount of $49,760, by increasing the inventory of bags to cost, or $103,507.35 and by increasing the inventory of coal to cost, or $3,288.25.
OPINION.
MURDOCK: The authority for the use of inventories is contained in section 203 of the Revenue Act of 1918, as follows:
That whenever in the opinion of the Commissioner the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer upon such basis as the Commissioner, with the approval of the Secretary, may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income.
The Commissioner's Regulations 45, in so far as pertinent to the question here involved, were as follows:
ART. 1581. Need of inventories. - In order to reflect the net income correctly, inventories at the beginning and ending of each year are necessary in every case in which the production, purchase or sale of merchandise is an incomeproducing factor. The inventory should include raw materials and supplies on hand that have been acquired*3329 for sale, consumption or use in productive processes, together with all finished or partly finished goods. * * *
ART. 1582. Valuation of inventories. - Inventories must be valued at (a) cost or (b) cost or market, as defined in article 1584 as amended, whichever is lower. Whichever basis is adopted must be applied consistently to the entire inventory. A taxpayer may, regardless of his past practice, adopt the basis of "cost or market whichever is lower", for his 1920 inventory, provided a disclosure of the fact and that it represents a change is made in the return. * * *
Our inquiry in this case must be as to whether or not under the above-quoted regulations of the Commissioner and the section of the Act the items in controversy may be inventoried.
*41 In so far as the coal is concerned, no evidence was introduced as to its use, or as to the reason for its acquisition, and we affirm the action of the Commissioner.
The petitioner bought bags in large quantities, ordering a year's supply in advance; when fertilizer was sold in bags the consumer was charged a higher price than when the sale was in bulk. Sometimes when the petitioner had an oversupply*3330 of bags on hand it sold them as bags to bag manufacturers, to competitors, and to farmers. The petitioner never disposed of bags in any other way. They were acquired for sale or use in productive processes and we can not see that to inventory them would conflict with the best accounting practices of the trade or business. The Commissioner was in error in valuing such bags at cost instead of at market.
Judgment will be entered under Rule 50.