Opinion
Docket No. 35357.
1954-03-16
PITTSBURGH AND WEIRTON BUS COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Robert P. Smith, Esq., for the petitioner Lyman G. Friedman, Esq., for the respondent.
Robert P. Smith, Esq., for the petitioner Lyman G. Friedman, Esq., for the respondent.
Petitioner seeks relief under section 722 of the Code based on section 722(b)(4) and (b)(5). Held, petitioner is not entitled to relief under section 722(b)(4) or (b)(5) since it has failed to establish that a fair and just amount representing normal earnings to be used as a constructive base period net income would exceed its average base period income as determined under the growth formula. Held, further, this Court has no jurisdiction to determine the ‘standard issue‘ raised by the amended answer. Mutual Lumber Co., 16 T.C. 370, followed.
This proceeding involves claims for refund under section 722 of the Internal Revenue Code for the calendar years 1940, 1941, 1942, 1943, 1944, and 1945. The respondent denied all claims for relief. The question presented is whether the petitioner is entitled to relief under the provisions of section 722(b)(4) or (b)(5).
The facts stipulated are found accordingly.
FINDINGS OF FACT.
Petitioner is a Pennsylvania corporation organized August 12, 1931, and having its principal office in Weirton, West Virginia. Its authorized capital is $75,000, consisting of 7,500 shares of the par value of $10 per share. At all times here pertinent the petitioner was engaged in the business of operating buses in the general vicinity of Weirton, West Virginia; Steubenville, Ohio; and Pittsburgh, Pennsylvania.
Since its incorporation and continuing throughout the periods involved the petitioner kept its books and reported its income on the calendar year basis and on the accrual method of accounting.
The petitioner is entitled to use the excess profits credit based on income under section 713 of the Internal Revenue Code, and its average base period net income computed under section 713 is as follows:
+-----------------------------------------------------------------------------+ ¦Computation ¦ ¦ ¦ +-----------------------------------------------------+-----------+-----------¦ ¦Excess profits net income ¦1940 ¦1941-1945 ¦ +-----------------------------------------------------+-----------+-----------¦ ¦1936 ¦($6,737.26)¦($6,737.26)¦ +-----------------------------------------------------+-----------+-----------¦ ¦1937 ¦17,128.78 ¦23,425.27 ¦ +-----------------------------------------------------+-----------+-----------¦ ¦1938 ¦21,820.49 ¦25,522.97 ¦ +-----------------------------------------------------+-----------+-----------¦ ¦1939 ¦44,489.25 ¦54,991.88 ¦ +-----------------------------------------------------+-----------+-----------¦ ¦ ¦76,701.26 ¦97,202.86 ¦ +-----------------------------------------------------+-----------+-----------¦ ¦Simple average ¦19,175.32 ¦24,300.72 ¦ +-----------------------------------------------------+-----------+-----------¦ ¦Add: ¦ ¦ ¦ +-----------------------------------------------------+-----------+-----------¦ ¦Net increase under section 713 ¦25,313.93 ¦30,691.16 ¦ +-----------------------------------------------------+-----------+-----------¦ ¦Average base period net income under provisions of ¦$44,489.25 ¦$54,991.88 ¦ ¦section 713 (limited to highest year in base period) ¦ ¦ ¦ +-----------------------------------------------------------------------------+
Average base period net income under provisions of section 713 (limited to highest year in base period) - $44,489.25 $54,991.88
The following table shows the number of miles of petitioner's operations during each month of the years 1938 and 1939:
+-----------------------------------+ ¦Year ended Dec.31 ¦ ¦ ¦ +-------------------+-------+-------¦ ¦ ¦1938 ¦1939 ¦ +-------------------+-------+-------¦ ¦January ¦67,974 ¦67,169 ¦ +-------------------+-------+-------¦ ¦February ¦59,648 ¦60,505 ¦ +-------------------+-------+-------¦ ¦March ¦66,761 ¦67,034 ¦ +-------------------+-------+-------¦ ¦April ¦64,216 ¦64,190 ¦ +-------------------+-------+-------¦ ¦May ¦65,524 ¦65,183 ¦ +-------------------+-------+-------¦ ¦June ¦62,528 ¦62,684 ¦ +-------------------+-------+-------¦ ¦July ¦61,455 ¦66,061 ¦ +-------------------+-------+-------¦ ¦August ¦60,523 ¦65,714 ¦ +-------------------+-------+-------¦ ¦September ¦59,196 ¦63,949 ¦ +-------------------+-------+-------¦ ¦October ¦65,738 ¦65,941 ¦ +-------------------+-------+-------¦ ¦November ¦64,058 ¦66,770 ¦ +-------------------+-------+-------¦ ¦December ¦68,928 ¦74,384 ¦ +-------------------+-------+-------¦ ¦Total ¦766,549¦789,584¦ +-----------------------------------+
The following schedule in round figures shows petitioner's income by routes and the percentage that the revenue of each route bore to the total revenue for the years 1938 and 1939:
+-----------------------------------------------------------------------------+ ¦Route¦ ¦1938 ¦Per ¦1939 ¦Per ¦ ¦ ¦ ¦ ¦cent ¦ ¦cent ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦A ¦Steubenville to Pittsburgh via Weirton ¦$14,400 ¦8.2 ¦$19,400 ¦7.7 ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦B ¦Weirton to Weirton Heights and ¦18,900 ¦10.7 ¦27,500 ¦10.9 ¦ ¦ ¦Pennsylvania state line ¦ ¦ ¦ ¦ ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦E ¦Weirton-Steubenville via Ft. Steuben ¦118,800 ¦67.2 ¦171,700 ¦68.3 ¦ ¦ ¦Bridge ¦ ¦ ¦ ¦ ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦F ¦Weirton-New Cumberland ¦16,500 ¦9.3 ¦19,900 ¦7.9 ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦G ¦Weirton-Marland Heights ¦3,700 ¦2.1 ¦7,400 ¦3.0 ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦ ¦Chartered service ¦3,500 ¦2.0 ¦4,400 ¦1.8 ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦ ¦Advertising-Express ¦900 ¦0.5 ¦900 ¦0.4 ¦ +-----+---------------------------------------+--------+------+--------+------¦ ¦ ¦Total 1 ¦$176,700¦100.0 ¦$251,200¦100.0 ¦ +-----------------------------------------------------------------------------+ FN1 These totals vary slightly from those reported by petitioner in its tax returns. These variations are unexplained.
The following schedule shows the number of passengers hauled by petitioner during each month of 1938 and 1939 (as reported to the Interstate Commerce Commission):
+-----------------------------+ ¦ ¦1938 ¦1939 ¦ +---------+---------+---------¦ ¦January ¦116,624 ¦207,253 ¦ +---------+---------+---------¦ ¦February ¦107,473 ¦194,736 ¦ +---------+---------+---------¦ ¦March ¦121,404 ¦206,639 ¦ +---------+---------+---------¦ ¦April ¦122,630 ¦193,779 ¦ +---------+---------+---------¦ ¦May ¦119,644 ¦190,149 ¦ +---------+---------+---------¦ ¦June ¦110,556 ¦182,460 ¦ +---------+---------+---------¦ ¦July ¦115,324 ¦195,847 ¦ +---------+---------+---------¦ ¦August ¦120,982 ¦188,485 ¦ +---------+---------+---------¦ ¦September¦125,429 ¦197,023 ¦ +---------+---------+---------¦ ¦October ¦172,935 ¦221,395 ¦ +---------+---------+---------¦ ¦November ¦195,287 ¦233,505 ¦ +---------+---------+---------¦ ¦December ¦221,963 ¦252,278 ¦ +---------+---------+---------¦ ¦Total ¦1,650,251¦2,463,549¦ +-----------------------------+
The petitioner owned and operated the following number of buses in 1937, 1938, and 1939:
+-------------------------------+ ¦ ¦1937 ¦1938 ¦1939 ¦ +----------+------+------+------¦ ¦January ¦12 ¦19 ¦20 ¦ +----------+------+------+------¦ ¦February ¦19 ¦17 ¦19 ¦ +----------+------+------+------¦ ¦March ¦19 ¦18 ¦19 ¦ +----------+------+------+------¦ ¦April ¦20 ¦18 ¦20 ¦ +----------+------+------+------¦ ¦May ¦20 ¦18 ¦20 ¦ +----------+------+------+------¦ ¦June ¦20 ¦18 ¦20 ¦ +----------+------+------+------¦ ¦July ¦20 ¦18 ¦20 ¦ +----------+------+------+------¦ ¦August ¦20 ¦18 ¦20 ¦ +----------+------+------+------¦ ¦September ¦20 ¦18 ¦20 ¦ +----------+------+------+------¦ ¦October ¦20 ¦19 ¦20 ¦ +----------+------+------+------¦ ¦November ¦20 ¦20 ¦20 ¦ +----------+------+------+------¦ ¦December ¦20 ¦20 ¦20 ¦ +-------------------------------+
The following schedule reflects the number of persons employed by petitioner during each month from January 1937 through December 1939, inclusive:
+-------------------------------+ ¦ ¦1937 ¦1938 ¦1939 ¦ +----------+------+------+------¦ ¦January ¦30 ¦37 ¦36 ¦ +----------+------+------+------¦ ¦February ¦35 ¦35 ¦36 ¦ +----------+------+------+------¦ ¦March ¦42 ¦36 ¦37 ¦ +----------+------+------+------¦ ¦April ¦38 ¦37 ¦37 ¦ +----------+------+------+------¦ ¦May ¦38 ¦35 ¦36 ¦ +----------+------+------+------¦ ¦June ¦38 ¦33 ¦37 ¦ +----------+------+------+------¦ ¦July ¦41 ¦31 ¦41 ¦ +----------+------+------+------¦ ¦August ¦43 ¦31 ¦38 ¦ +----------+------+------+------¦ ¦September ¦41 ¦29 ¦39 ¦ +----------+------+------+------¦ ¦October ¦42 ¦31 ¦40 ¦ +----------+------+------+------¦ ¦November ¦41 ¦32 ¦39 ¦ +----------+------+------+------¦ ¦December ¦40 ¦35 ¦40 ¦ +-------------------------------+
Petitioner's balance sheet at December 31, 1939, as finally determined, was as follows:
+----------------------------------------+ ¦ASSETS ¦ +----------------------------------------¦ ¦Cash ¦$17,231.77¦ +-----------------------------+----------¦ ¦Accounts and notes receivable¦5,118.03 ¦ +-----------------------------+----------¦ ¦Government bonds for tax fund¦ ¦ +-----------------------------+----------¦ ¦Franchises ¦40,780.50 ¦ +-----------------------------+----------¦ ¦Passenger buses ¦157,522.81¦ +-----------------------------+----------¦ ¦Machinery and equipment ¦2,110.50 ¦ +-----------------------------+----------¦ ¦Furniture and fixtures ¦475.80 ¦ +-----------------------------+----------¦ ¦Service cars ¦ ¦ +-----------------------------+----------¦ ¦Real estate ¦ ¦ +-----------------------------+----------¦ ¦Investments ¦ ¦ +-----------------------------+----------¦ ¦ ¦223,239.41¦ +----------------------------------------+
+----------------------------------------+ ¦LIABILITIES AND NET WORTH ¦ +----------------------------------------¦ ¦ ¦ ¦ +----------------------------+-----------¦ ¦Notes payable ¦$1,000.00 ¦ +----------------------------+-----------¦ ¦ ¦ ¦ +----------------------------+-----------¦ ¦Accounts payable ¦37,392.22 ¦ +----------------------------+-----------¦ ¦ ¦ ¦ +----------------------------+-----------¦ ¦Accrued expenses ¦6,293.48 ¦ +----------------------------+-----------¦ ¦ ¦ ¦ +----------------------------+-----------¦ ¦Federal income taxes payable¦33,608.07 ¦ +----------------------------+-----------¦ ¦ ¦ ¦ +----------------------------+-----------¦ ¦Reserves for depreciation ¦62,354.61 ¦ +----------------------------+-----------¦ ¦ ¦ ¦ +----------------------------+-----------¦ ¦Capital stock and surplus ¦82,591.03 ¦ +----------------------------+-----------¦ ¦ ¦$223,239.41¦ +----------------------------------------+
Under authority granted by the Interstate Commerce Commission, the Public Service Commission of West Virginia, and the Public Service Commission of Ohio, the petitioner operated buses in 1938 and 1939 over the following routes:
+-------------------------------------------------------------------+ ¦Route ¦Description of route ¦ +-------+-----------------------------------------------------------¦ ¦A ¦Steubenville to Pittsburgh via Weirton. ¦ +-------+-----------------------------------------------------------¦ ¦B ¦Weirton to Weirton Heights and Pennsylvania state line. ¦ +-------+-----------------------------------------------------------¦ ¦E ¦Weirton-Steubenville via both the Steuben Bridge and Market¦ +-------+-----------------------------------------------------------¦ ¦ ¦Street Bridge. ¦ +-------+-----------------------------------------------------------¦ ¦F ¦Weirton to Chester via New Cumberland. ¦ +-------+-----------------------------------------------------------¦ ¦G ¦Weirton to Marland Heights. ¦ +-------------------------------------------------------------------+
Petitioner operated on certain of its routes in competition with the Blue Ridge Bus Company, the Steubenville, Wellsburg and Weirton Railway Company, the S. & W. Bus Company, and a branch of the Pennsylvania Railroad Company.
The Pennsylvania Railroad Company discontinued its passenger operations in 1936, and in February 1937 the petitioner purchased the S. & W. Bus Company franchise. Thereafter, the petitioner was in limited competition with the Blue Ridge Bus Company and the Steubenville, Wellsburg and Weirton Railway Company, both of which were owned by the West Penn Power Company. The petitioner competed in interstate traffic with the Blue Ridge Bus Company all along petitioner's division A and along petitioner's division E from the Market Street Bridge over West Virginia State Route 2 and United States Highway 2 to the Avenue C terminal in Weirton. This competition continued throughout petitioner's base period and after December 1939.
In intrastate traffic the petitioner competed with the Blue Ridge Bus Company only from its Avenue C terminal in Weirton to the boundary line of the towns of Weirton and Hollidays Cove; from this point to the Market Street Bridge the petitioner had no intrastate rights but the Blue Ridge Bus Company had intrastate rights although the record does not show whether it did pick up intrastate passengers. In January 1939 the petitioner purchased the intrastate rights of the Blue Ridge Bus Company over its division E.
The petitioner competed in intrastate traffic on division E with the Steubenville, Wellsburg and Weirton Railway Company only between its Avenue C terminal and the boundary line of the towns of Weirton and Hollidays Cove. In October 1938 the street railway discontinued its operations and the petitioner acquired its intrastate rights.
With the acquisition of the intrastate rights of the Blue Ridge Bus Company in January 1939, all of its competition in intrastate traffic was eliminated.
Petitioner had some surveys prepared in 1939 by its employees respecting additional or improved service, as follows:
+-----------------------------------------------------------------------------+ ¦Dates shown on surveys ¦Proposed additional service ¦ +------------------------+----------------------------------------------------¦ ¦June 1939 ¦Establishment of bus stops on route from Avenue C ¦ +------------------------+----------------------------------------------------¦ ¦ ¦terminal to state line via United States Highway 22.¦ +------------------------+----------------------------------------------------¦ ¦November 1939 ¦Bus route from Avenue C terminal extending south ¦ +------------------------+----------------------------------------------------¦ ¦ ¦on Main Street to Cove Road (West Virginia State ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Route 13); along Cove Road to United States ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Highway 22; west along United States Highway 22 to ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Chestnut Woods at the intersection of United States ¦ ¦ ¦Highway 22 and Culler Road. ¦ +------------------------+----------------------------------------------------¦ ¦July 1939 ¦Extension of Marland Heights route. ¦ +------------------------+----------------------------------------------------¦ ¦October 1939 ¦Establishment of bus stops along the ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Weirton-Steubenville route. ¦ +------------------------+----------------------------------------------------¦ ¦December 16, 1939 ¦Bus route from the Avenue C terminal in Weirton, ¦ +------------------------+----------------------------------------------------¦ ¦ ¦south on Main Street via Cove Road (West Virginia ¦ +------------------------+----------------------------------------------------¦ ¦ ¦State Route 13); thence along West Virginia State ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Route 1 to Colliers, West Virginia. ¦ +------------------------+----------------------------------------------------¦ ¦September 1939 ¦Bus route from Avenue C terminal, south on Main ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Street to Pennsylvania Avenue; thence to Weir ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Avenue; along Weir Avenue to Lee Avenue; thence ¦ +------------------------+----------------------------------------------------¦ ¦ ¦to Main Street to the Avenue C terminal. ¦ +------------------------+----------------------------------------------------¦ ¦June 1939 ¦Extension of route from Paris. Pennsylvania, along ¦ +------------------------+----------------------------------------------------¦ ¦ ¦United States Highway 22 to Gardner's Service ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Station. ¦ +------------------------+----------------------------------------------------¦ ¦November 1939 ¦Recommendation for better service on Pittsburgh- ¦ +------------------------+----------------------------------------------------¦ ¦ ¦Weirton-Steubenville route by replacement of old ¦ +------------------------+----------------------------------------------------¦ ¦ ¦buses with new buses. ¦ +-----------------------------------------------------------------------------+
The preliminary surveys and reports were made by Frank Lepera, an employee of the petitioner since 1930 or 1931, who, in 1939, was serving in the capacity of engineer and foreman. In these surveys Lepera made estimates of additional passenger haul and suggested the fare to be charged. Lepera made other surveys which were not offered in evidence. His recommendations were not always followed by petitioner.
From time to time citizens in the localities served filed petitions with the petitioner requesting extensions of bus service to their areas. These petitions were not available at the trial, except one for service between Follansbee and Burgestown, Pennsylvania, via Eldersville Road. The petitioner never provided this service.
Petitioner filed applications with the Public Service Commission of West Virginia for certificates of necessity and convenience for extensions of service and was granted such authority. The date of filing of the application, a description of the route, and the date authority was granted are set forth below:
+-----------------------------------------------------------------------------+ ¦Description of route ¦Date application filed ¦Date authority granted ¦ +---------------------------+------------------------+------------------------¦ ¦Division I and J--Weirton ¦ ¦ ¦ ¦to Colliers and Weirton to ¦May 1, 1940 ¦June 26, 1940 ¦ ¦Chestnut Woods via Cove ¦ ¦ ¦ ¦Road ¦ ¦ ¦ +---------------------------+------------------------+------------------------¦ ¦Division G--Marland Heights¦Nov. 14, 1940 ¦Jan. 21, 1941 ¦ ¦extension ¦ ¦ ¦ +---------------------------+------------------------+------------------------¦ ¦Division K--Weir Avenue ¦Apr. 17, 1941 ¦Sept. 19, 1941 ¦ ¦loop ¦ ¦ ¦ +-----------------------------------------------------------------------------+
Reports were filed by petitioner with the Public Service Commission of West Virginia for the years 1938 to 1941, inclusive. The reports, inter alia, include information with respect to changes in regular route service of petitioner, as follows:
+-----------------------------------------------------------------------------+ ¦Date filed ¦Year covered ¦Route changes 1 ¦ +------------+--------------+-------------------------------------------------¦ ¦Apr. 11, ¦1938 ¦None. ¦ ¦1939 ¦ ¦ ¦ +------------+--------------+-------------------------------------------------¦ ¦(2) ¦1939 ¦None. ¦ +------------+--------------+-------------------------------------------------¦ ¦June 7, 1941¦1940 ¦From Weirton to Colliers, West Virginia, over ¦ ¦ ¦ ¦State route 2, 13, and 1. Length of miles 6.5. ¦ +------------+--------------+-------------------------------------------------¦ ¦June 6, 1942¦1941 ¦From Weirton to Weir Avenue, unnumbered highway, ¦ ¦ ¦ ¦loop, 3.5 miles one way. ¦ +-----------------------------------------------------------------------------+ FN1 The information is shown under heading, “Changes during the year in regular routes over which respondent operated. Routes over which new regular route service was started during the year. Routes over which operations were discontinued during the year.”FN2 No filing date was stamped on the report. The oath on the report was executed April 20, 1940.
The Collier's route (Route 1) was started in 1940 and paralleled the old route along State Route 2 from Avenue C to the intersection of Cove Road and Main Street in Weirton. From Cove Road and Main Street, a distance of 5 miles, the route was new. Route K from Lee Avenue north on Main Street to Avenue C paralleled an old route. It did not parallel an old existing route on Weir Avenue which intersects Pennsylvania Avenue south to Lee Avenue. The new portion of the route was approximately 2 1/2 blocks away from the old route. Route J partially paralleled and operated over identical streets as Route B and the petitioner did not segregate passenger haul and revenue on these two routes.
Route E, between Wirton and Steubenville, was petitioner's main line. No extensions were made. Bus stops were rearranged, time schedules inaugurated, and the rates revised. In 1938 and 1939 the revenue from this route accounted for 67.2 and 68.3 percent, respectively, of petitioner's total revenue from the operation of its buses.
Petitioner's area of operations covered only a small area in the County of Hancock, West Virginia, and the northern edge of Brooke County, West Virginia. Its operations also extended, with limited interstate rights, to the bus terminal in the city of Steubenville, located in Jefferson County, Ohio.
The principal employers of labor in the area served by the petitioner were a few local industries, including the Weirton Steel Company, in Wierton, West Virginia. There was no substantial change in the number of persons employed by the Weirton Steel Company and only a normal increase in the population of the area during the base period years.
Prior to 1935 the business of petitioner was not subject to interstate supervision but was subject to intrastate supervision but was subject to intrastate supervision in West Virginia by the State Roads Commission. In 9135 Congress enacted the Motor Carriers Act, giving jurisdiction over interstate motor carriers to the Interstate Commerce Commission. In 1937 the State of West Virginia passed an act placing intrastate motor carriers under the jurisdiction of the Public Service Commission. All intrastate carriers were required to apply for certificates of convenience. Carriers which had operated over established routes prior to the passage of the act were issued certificates without showing proof of necessity.
The petitioner has failed to establish that its average base period net income was an inadequate standard of normal earnings because of a change in the character of its business, and has failed to show that a fair and just amount to represent its average normal earnings would exceed the average base period net income under the growth formula.
Petitioner has failed to show that it was committed prior to January 1, 1940, to establish new routes or improve its service on its old routes within the purview of section 722(b)(4).
Petitioner has failed to show that the alleged unfair competition resulted in an inadequate standard of normal earnings during the base period.
For the year 1944, pursuant to the provisions of section 710(a)(5) of the Internal Revenue Code, petitioner deferred payment of the excess profits taxes in the amount of $29,454.95.
OPINION.
LEMIRE, Judge:
Petitioner seeks relief from excess profits taxes for the years 1940 to 1945, inclusive, under section 722(b)(4) and (5).
Since its organization in 1931, the petitioner has been engaged in operating buses for transporting passengers over routes between Weirton, West Virginia, and Steubenville, Ohio, and between Pittsburgh, Pennsylvania, and Steubenville, Ohio, by way of Weirton and other adjacent points in the general vicinity of Weirton, West Virginia.
Petitioner is entitled to compute its excess profits credit for the years in question based on its base period net income with the benefits afforded in section 713(f) of the Code.
Petitioner's excess profits net income for 1939 is $54,991.88, which is the amount of its average base period net income computed under section 713(f) for 1941 and subsequent years. For the year 1940 petitioner's average base period net income computed under section 713(f) is $44,489.25.
The petitioner contends that it is entitled to use a constructive average net income to compute its excess profits credit because it changed the character of its business during the base period years and that it was committed as of December 31, 1939, to a change in its capacity for operations, which plan was not consummated until after January 1, 1940. Invoking the push-back rule, the petitioner contends that by the end of its base period it did not reach the level of earnings it would have reached had the changes been made 2 years before, thus qualifying for relief under section 722(b)(4).
The petitioner also claims that if it does not qualify for relief under section 722(b)(4), then the same events and conditions qualify it for relief under subsection (b)(5).
The respondent argues that petitioner is not entitled to use a constructive average base period net income because of a change in character during the base period, since it has not shown that a fair and just amount representing normal earnings for the base period would be in excess of its average base period net income computed under the growth formula, and that petitioner was not committed to change in its capacity for production or operation prior to January 1, 1940.
The petitioner contends that it changed the character of its business during the base period because it eliminated all competition. The record shows that the Pennsylvania Railroad Company voluntarily discontinued operations in 1936, and that the Steubenville, Wellsburg and Weirton Railway Company voluntarily discontinued its operations in the area serviced by the petitioner in the latter part of 1938. The petitioner makes no contention that it acquired the franchise or equipment of these two carriers.
In February 1937 the petitioner acquired the franchise and equipment of the S. & W. Bus Company, and as of December 31, 1938, petitioner acquired, by purchase, the intrastate franchise rights of the Blue Ridge Bus Company. These acquisitions if of sufficient importance could represent a change in the character of its business in its base period within the intent of section 722(b)(4). However, the establishment of a qualifying factor does not mean that the petitioner is automatically entitled to relief. It must be further demonstrated that its average base period net income is an inadequate standard of normal earnings because of such factor and must further show what would be a fair and just amount representing normal earnings. Green Spring Dairy, Inc., 18 T.C. 217; Powell Hackney Grocery Co., 17 T.C. 1484.
After the acquisition of the S. & W. Bus Company's franchise and equipment in February 1937, the petitioner had a period of approximately 23 months before the commencement of its last base period year in which to reach a normal level of operations after the change. With respect to the acquisition of the intrastate franchise of the Blue Ridge Bus Company, the evidence does not show whether that company actually picked up and discharged intrastate passengers. The petitioner has not shown whether there was an increase in passenger haul as a result of such changes, and it has not made any comparison of operating costs before and after the changes.
The petitioner has offered no evidence to show that its average base period net income is an inadequate standard of normal earnings and what would be a fair and just amount representing normal earnings because of the aforementioned qualifying factors consummated during its base period. The secretary of the petitioner, Anthony Battaglia, testified that prior to January 1939, when the petitioner was in competition with the other carriers, it was hauling about 50 percent of the passengers. Since the petitioner's excess profits net income in 1939, without the benefit of section 722, both under the 1940 and 1941 doubtful whether the petitioner could have shown that the earning level of the business at the end of the base period was not as great as it would have been had the changes been made 2 years earlier. We think it is apparent that petitioner was unable to show that a fair and just amount to represent normal earnings for use in determining constructive average base period net income would exceed its average base period net income as determined under the growth formula.
Therefore, we hold that the petitioner has failed to establish its right to relief under section 722(b)(4) by reasons of changes in the character of its business during its base period.
The petitioner's contention that its average base period net income is an inadequate standard of normal earnings is based principally on the fact that it consummated a change in its capacity for production or operation during the taxable years ending after December 31, 1939, as the result of a course of action to which it was committed prior to January 1, 1940. The change in character to which the petitioner claims to have been committed prior to January 1, 1940, is its establishment of new bus routes and improved service on old routes. Since the changes took place after December 31, 1939, it is incumbent upon the petitioner to show that the changes were the result of a course of action to which it was committed prior to January 1, 1940.
In furtherance of its claim that it was committed to a course of action during the base period the petitioner contends that, since it had eliminated all competition and was the only company furnishing bus transportation, it was legally required to improve its service and to provide service to the several communities surrounding the area it then served. It argues that during 1939 it received several petitions from residents requesting it to provide bus service in their localities; that the petitioner's president had orally promised to provide such service; that several surveys were made by an employee in which he made recommendations for improvements in existing routes and for the establishment of new routes; and, furthermore, that petitioner had obligated itself to purchase additional buses to provide such service.
The record discloses that in order to establish new routes it was necessary for the petitioner to first make application to the Public Service Commission of West Virginia for certificates of convenience and for authority to provide such service. Two applications for such authority were filed on May 1, 1940, a third application was filed on November 14, 1940, and a fourth application on April 17, 1941. Petitioner advanced no reason for the delay in filing its applications for certificates of convenience after the surveys had been completed. The long lapse between the completion of the surveys and the filing of the applications for authority to establish the new routes indicates that the petitioner had not definitely decided to furnish the requested additional services. The evidence clearly shows that the oral promises made to those citizens were indefinite and in no wise committed the petitioner to provide such service. The petitioner's president, Mike Starvaggi, in this connection testified as follows:
Q. How did you obligate yourself or your company to furnish that additional service in 1939?
A. I obligated myself with the people who came in to me and I told them just to give us a little time, that you would get this think to working the way it belonged and we were going to give you the service.
The evidence that petitioner obligated itself in 1939 to purchase additional equipment to provide the new service inaugurated subsequent to the base period is contradictory and not persuasive. Starvaggi testified that late in 1939 he had signed orders for the purchase of 15 new buses, 4 of which were delivered in December 1939 and the remainder in 1940 and 1941. The stipulated facts show that during the period from March through December 1939 the petitioner owned and operated only 20 buses. Obviously, if 4 new buses were purchased by and delivered to petitioner in December 1939, they were used to replace old buses that were retired from service. The record further shows that the number of persons employed in the month of December 1939 was 40, the same number as in October.
The rule is well established that while a legally binding form of commitment is not required it should be proved by a change in position, unequivocally establishing the intent to make the change within a reasonably definite period of time. The Treasury Department Bulletin on Section 722 (Nov. 1944) discusses other criteria that may be given weight in determining whether or not there has been a commitment to a course of action prior to January 1, 1940, such as progress to a point where there could not be a withdrawal without substantial detriment. The petitioner argues that because of the promises made to the residents in the Weirton area to provide additional service it had progressed to a point in 1939 from which it could not withdraw without suffering substantial detriment, namely, a return to competitive conditions existing prior to 1939. The petitioner makes the point that the residents of the surrounding area desiring bus service could have petitioned the Public Service Commission to have such service established either by a directive issued to petitioner or by granting authority to other bus companies willing to provide the service. We think the mere threat of possible competition is too remote to establish the fact of a detriment. Petitioner in 1939 was the only bus company serving that area and it is unlikely that the Public Service Commission would have authorized competitive service unless the petitioner refused to supply the service if the necessity therefor was established.
Whether petitioner was committed to a course of action within the meaning of section 722(b)(4) is a question of fact to be decided from the evidence which is to be interpreted in accordance with the prescribed regulations. Lockhart Creamer, 17 T.C. 1123. Under all of the evidence, we hold that petitioner has failed to show a commitment prior to January 1, 1940, within the meaning of section 722(b)(4) of the Code.
Petitioner also claims relief under section 722(b)(5). On brief, it argues that the peculiar competitive situation in the Weirton area existing in the early part of the base period constitutes a factor affecting the taxpayer's business which may reasonably be considered as resulting in an inadequate standard of normal earnings during the base period.
The respondent contends that the claim for relief under the provisions of section 722(b)(5) are not properly before the Court, and that the petitioner has not shown that the base period net income was adversely affected by other factors.
In its applications for relief (Form 991) for each of the years involved, the petitioner checked all subsections (b)(1), (2), (4), and (5) of section 722 and after each item inserted the words ‘see statement attached.‘ The attached statement appended to each application sets forth allegations generally but does not specify which facts and allegations are applicable to each of the subsections of 722(b).
The petition filed herein assigns error under section 722 generally. It sets forth certain facts and allegations and concludes that as a result of the events enumerated the petitioner is eligible for relief under section 722(b)(4) or (5) of the Code. We think it doubtful whether a claim for relief under section 722(b)(5) is properly before the Court. Assuming, arguendo, that such a claim is presented, the petitioner has failed to establish any qualifying factors other than those claimed to qualify it under section 722(b)(4). Hence, it is not necessary for us to consider the petitioner's eligibility for relief under section 722(b)(5). George Kemp Real Estate Co., 12 T.C. 943; General Metalware Co., 17 T.C. 286; Mitchell & Co., 20 T.C. 110.
Therefore, we hold that petitioner has failed to establish that it is entitled to any relief under section 722 of the Code.
The respondent requests us to determine that there is a deficiency in petitioner's excess profits tax liability for the taxable year 1944 in the amount of $29,454.95, arising from a deferment of excess tax under section 710(a)(5) of the Code.
On March 27, 1951, the respondent mailed to the petitioner a notice under section 732 of the Code rejecting in full petitioner's applications for relief under section 722 for the years 1940 to 1945, inclusive. In the notice of disallowance the respondent advised the petitioner that its excess profits tax liability for 1944 was $59,802.46, which was petitioner's excess profits tax liability reduced by the payment deferred under section 710(a)(5) and by appropriate credit under section 784.
In the petition filed herein the single assignment of error set forth alleges ‘(a) Respondent has erred in rejecting petitioner's application for relief under section 722 of the Code for each of the years 1940 to 1945, inclusive.‘
The petitioner makes three separate references in its petition to the fact that its excess profits tax liability for the year 1944 is in the amount of $89,257.41.
At the hearing of this proceeding the respondent moved for and was granted leave to file an amended answer praying that this Court find a deficiency in excess profits tax for the year 1944 in the amount of $29,454.95. The petitioner opposed the granting of the motion on the ground that it was a standard issue and the only assignment of error set forth in the petition is the disallowance of the claims for relief under section 722.
It appears that no notice of deficiency under section 272(a) of the Code has been sent to the petitioner. In California Vegetable Concentrates, Inc., 10 T.C. 1158, it was held that the reduction in tax allowed by section 710(a)(5) is not a part of ‘the tax imposed‘ within the language of section 271 and it is improper to include the deferred amount is assessing a deficiency. The assertion of a deficiency in an amended answer is not the equivalent of the service of a statutory notice of deficiency.
The only issue properly before us is whether the petitioner is entitled to relief under section 722 of the Code. Mutual Lumber Co., 16 T.C. 370; Martin Weiner Corporation, 21 T.C. 470; West Flagler Amusement Co., 21 T.C. 486.
Reviewed by the Special Division as to the section 722 issue.
Decision will be entered that petitioner is not entitled to relief under section 722.