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HOUSE OF REPRESENTATIVES ( Rnouir 76&z CoNRms | No.

2894 3d Se8ion )

THE SECOND REVENUE BILL OF 1940


AUGUST 28, 1940.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. DOUGHTON, from the Committee on Ways and Means, submitted the following

REPORT
bill (H. R. 10413) to provide revenue, and for other purposes, having had the same under consideration, report it back to the House without amendment and recommend that the bill do pass. The bill may be divided into three general parts: (a) the excessprofits tax, (b) the suspension of the application of the provisions of the Vinson-Trammell Act restricting profits upon the construction of naval vessels and aircraft; and (c) the provision of special amortization in respect of facilities necessary for national defense.
NEED FOR THE LEGISLATION On May 16, 1940, the President, in his message to the Congress outlined the immediate necessity for increasing the outlays for national defense. In response to this and to subsequent messages the Congress has made available in direct appropriations and contract authorizations $14,702,000,000 for national defense, of which the revised budget of August 5, 1940, estimates that $5,000,000,000 will be expended in the fiscal year 1941. In further response to the message of May 16, in order to finance the additional appropriations there requested, your committee reported and the ongess enacted the revenue bill of 1940. This measure, approved June 25, 1940, provided for a $4,000,000,000 increase in the national debt and additional tax revenues of $1,000,000,000 annually for a 5-year period-an amount sufficient to retire the a(Iditional borrowings at maturit In its report on the revenue bill of 1940, your committee expressed the desire that the rearmament program should furnish no opportunity for the creation of new war millionaires or the further substan[To accompany H. R. 104131 The Committee on Ways and Means, to whom was referred the

THE

SXCOND REVENUE

BILL OF 1940

tial enrichment of already wealthy persons. Your committee is still of this opinion but, at the same time, deems it advisable to stimulate the cooperation of private enterprise in the defense program by suspending the profit limitations of the Vinson-Trammell Ant, applicable to the construction of naval vessels and Army and Navy aircraft. In addition, it is considered desirable to provide special amortization with respect to the facilities necessary in the national further to defense, ininorder rearmamentencourage the participation of private enterprise the program. While these benefits are being accorded to business engaged directly in the defense program, your committee feels that they should be accompanied by a general excess-profits tax rather than one limited to contractors for Army and Navy aircraft and naval vessels or even to munitions manufacturers generally. Accordingly, the tax provided in the bill will apply to corporate profits from all sources. This is felt desirable since the segregation of profits directly attributable to the expenditures of the Government for the defense program presents insuperable difficulties. Wor these reasons your committee recommends the incorporation in the same bill of these three interrelated features, each of great importance to the financial aspects of the defense program: the suspension of the profit limitations under the Vinson-Trammell Act, the provision of special amortization for defense facilities, and an excess-profits tax. In the opinion of your committee, this integrated plan presents the best method of effectuating the recommendation of the President as expressed in the following message:
To the Congress of the United States: We are engaged in a great national effort to build up our national defenses to neet any and every potential attack. We are asking even our humblest citizens to contribute their mite. It is our duty to see that the tburden is equitably distributed according to ability to pay so that a few do not gain from the sacrifices of the many. 1, therefore, recommend to the Congress the enactment of a steeply graduated excess-profits tax, to be applied to all individuals and all corporate organizations

without discrimination. THE WHITE HOUSE,

FRANKLIN D. ROOSEVELT.

July 1, 1940.

Upon thorough examination, it appeared that the excess-profits tax should apply only to corporations, as individual and partnership incomes are subject to heavy surtaxes upon not income, whether or not left in the business, while, in general, neither corporations nor their stockholders pay surtaxes upon earnings which are not distributed. Moreover, since all of the assets of an individual, whether he be a sole proprietor or a member of a partnership are at the risk of the business, it is extremely difficult, if not impossible, to determine the capital actually invested. The matters included in the bill were referred by your committee to its Subcommittee on Internal Revenue Taxation on August 1, 1940. On August 8 the subcommittee, in a printed report, submitted its recommendations, which formed the basis for full public hearings, held jointly by your committee and the Committee on. Finance of the Senate. Ihic recommendations of the subcommittee, modified as to rates and further modified with a view to the relief of certain types of cases disclosed in the hearings, are embodied in the bill.

THE SCOND REVENUE BILL OF 1940


ESTIMATES OF REVENUE

It is estimated that the excess-profits tax will yield $305,000,000 gross revenue for the calendar year 1940 and over $700,000,000 for a calendar year in which the defense program becomes fully operative. SUMMARY OF PRINCIPAL FEATURES I. EXCESS-PROFITS TAX
1. TAXABLE YEARS

The tax imposed by the bill is applicable with respect to all taxable years beginning after-December 31, 1939.
2. CORPORATIONS TAXABLE

The bill provides that all corporations except the following shall be subject to the excess-profits tax: (a) Corporations exempt from income tax. (b) Personal holding companies. (e) Foreign personal holding companies. (d) Mutual investment companies. (e) Diversified investment companies registered with the Securities and Exchange Commission. (t) Foreign corporations not engaged in trade or business within the United States and not having an office or place of business therein. Corporations with excess-profits net incomes of not more than the specific exemption are not subjected to tax and need not file excessprofits-tax returns. Since the specific exemption for a taxable year of 12 months is $5,000, and since only about 70,000 of the almost 500,000 active corporations in the United States have net incomes for general income-tax purposes in excess of $5,000, it is apparent that a large number of small corporations will-be relieved from the excess-profits tax. A personal-service corporation, as defined in the bill, miy be relieved from the excess-profits tax for any year by electing to have its income for such year taxed in the hands of the shareholders, whether or not actually distributed to them.
8. BASE PERIOD

stitute a base period.

For the purpose, of ascertaining the previous, earning experience to b)e used as a comparative measure of earnings for the taxable years tinder the bill, the years 1936 to 1939, inclusive, are selected to con-

4. MEASURE OF EXCESS PROFITS (a) Corporations in existence during entire base period.-In determining the portion of the earnings to be considered as excess profits, the taxpayer, if in existence actually or constructively during the entire base period, may choose either of two standards of measureInent.

SECOND REVENUE BILL OF 190 The choice is available to the following classes of corporations: (I) A domestic corporation, the first taxable year of which begins in 1940, if it was in existence for at least 48 months prior to the beginning of such taxable year. (2) A domestic corporation, which, while not in existence for the period specified under (1), is deemed to have been in existence for a period of 48 months prior to the begi ning of its first taxable year beginning in 1940, because it acquired, or resulted fromn the coalescing of, other corporations through certain tax-free exchanges or reorganizations, where such other corporations were in existence at the beginning of such 48-month period or had predecessors who were in existence at that time. In the opinion of your committee, the denial of the privilege of election to corporations in this category would be

THE

The two methods of measuring excess profits are outlined below. First method-Based on income. If this method is chosen, the taxpayer measures its excess profits by a comparison of its earnings for the taxable year with its average earnings for the base period. For the purposes of the comparison, the average earnings for the base period are increased by 8 percent of the net additions to capital occurring after the be&inning of the taxpayer's first taxable year under the bill, or decreased by 6 percent of the net reductions in capital during the same period. The amount so arrived at constitutes the taxpayer's excess-profits credit which, when deducted from the earnings for the taxable year, determines the excess profits, or the portion of the income which after the deduction of the specific exemption of $5,000 i> subjected to excess-profits tax. Second method-based on income and invested capital. Under this method, the portion of the earnings for the taxable year to be considered as excess profits, to which the tax will apply, is ascertained by deducting from the earnings of the taxpayer for the taxable year an amount equal to the percentage of its invested capital for such year which its earnings during the base period bear to its invested capital for the base period. Such percentage may not be more than 10 or less than 5, except that with respect to the first $500,000 of invested capital for the taxable year the minimum percentage is 7 instead of 5. These minimum percentages establish a floor for corporations with low earnings during the base period, thus allowing such corporations a reasonable return on their invested capital before becoming subject to excess-profits tax. In addition, corporations, under this method, are allowed a 10 percent tax-free return on new capital, to the extent that it does not cause the invested capital to exceed $500,000, and 8 percent on new capital in excess of that figure. (b) Corporations in existence during oy part of the base period.Corporations in existence for only a part of the base period must measure their excess profits by the second method. For this pur pose they are supplied an invested capital, for the period during whiich they were not in existence equal to their invested capital at the beginning of their 1940 taxable year, and upon that hypothetical invested capital they are deemed to have earned 10 percent of the first $500,000 of such invested capital and 8 percent of the amount in excess of $500,000..

inequitable,

Table: [No Caption]

THE SFOND REVENUE BILL OF 19

For example, corporation A came into existence on January 1, 1938. It had an invested capital as of January 1, 1940 of $800,000 and keeps its books and accounts on a calendar-year basis. It had an average invested capital and excess-profits net income for the portion of t e base period during which it was actually in existence as indicated. These factors for the portion of the base period during which it was not in existence are supplied as follows:
Yenr

Invated
capital

Excess profits period net Income percent age

_ 193.-. 0... .$74, 000 .. 1937 ........... t7000 .... 19845, NO ....... ..-8.00...0 .... ...... . 011 6, 000 1919 -..-..- _.......... .700,000 2. 5W Total 8.7 9800, 000 1940------------------------------ 800,000.-------.

..........

-----------

.........

......

.......

................

.........

The amounts marked by an asterisk (*) do not represent the actual experience of the corporation but have been suppledbhe invested capital for 1940, upon which a yield of 10 percent for the first $800,000 and 8 percent on tebalance is assumed.

Thus, the portion of the earnings for the taxable year in excess of an amount equal to 8.7 percent of the invested capital for the taxable year is considered excess profits and, after being, reduced by the specific exemption of $6,000, is subject to tax. (c) Corporations not in existence in the base period.-Corporations which come into existence after the close of the base period (other than those companies which are allowed the use of a substituted baseperiod experience because of certain tax-free exchanges and reorganizations) must measure their excess profits under the second method. For this purpose, they are allowed a credit equal to 10 percent of the first $500,000 of their invested capital for the taxable year and 8 percent of such capital in excess of $500,000.
6. COMPUTATION OF THE EXCESS-PROFITS CREDIT

First method-Ba8ed on income. Under this method the excess-profits credit for the table year is the aggregate of earnings for all of its taxable years in the baseperiod divide by the total number of those years. In the event of' a deficit for 1 year in the base period, the aggregate earnings for the other years are not reduced thereby. If there are deficits in more than one year in the base period, the aggregate earnings for the other years are reduced by all such deficits except the one for the year in which the greatest deficit occurred. But in all cases the aggregate so determined is divided by the total number of years in the base period. For example, corporation X had earnings of $300,000 in 1936, and $200,000 in 1937. In 1938 it had a deficit (that is, an excess of deductions and net income credits over gross income) of $150,000 and in 1939 another of $100,000. Its aggregate earnings for the base period are $400,000; that is $300,000 plus $200,000 minus $100,000; the greatest deficit, the $150,000 deficit, being disregarded. The average earnings for the base period are, therefore, $100,000, or $400,000 divided by the number of years in the period.

Table: Table I.- Il ustrations of sample corporations, showing exces -profits taxes under (1) average base period earnings method and (2) percentage return on invested capital method1

THV SIDOOND REVENUE BILL OF 1940

Second method-Based on income and invested capital. This method involves the same procedure as the first for determining the average earnings of the base period. In determining the average invested capital, however, the invested capital for no year is eliminated. Additions to invested capital are allowed a tax-free return of 10 percent to the extent that they do not cause it to exceed $500,000; a tax-free return of 8 percent is allowed on new capital above that figure. For the purpose of distinguishing between old capital and new, all capital in excess of that for the beginning of the taxpayer's first taxable year under the bill is considered to be new. But, if the invested capital subsequently reaches a lower figure, that figure would become the measure of new capital. For example, a corporation on a calendar-year basis had on January 1, 1940, the beginning of its first taxable year under the excess-profits tax, an invested capital of $100,000. In 1941 its invested capital had increased to $150,000. This $50,000 increase would be considered as new capital and allowed a return of 10 percent. In 1942 its invested capital was $130 000, or $20,000 less than 1941, but still $30,000 more than in 1940. fhis $30,000 would still be regarded as new capital as it is in excess of the measure established by 1940. However, if in 1943 the invested capital were to be reduced to $75,000 this figure would replace the $100,000 figure for 1940 as the measurement of new capital. That is, for years subsequent to 1943 any invested capital in excess of $75,000 will be considered as new capital until a new low is established. The following tables prepared by the Treasury Department illustrate the effect of the tax under the first and second methods:
TABLE I.-IUustrations of sample corporations, showing excess-profts taxes under (1) average base period earnings method and (2) percentage return on invested capital

method'

Cor- Cor' Corpo- Corpo- Corpo- Corpo- CorpoPora- rto 4 ainSrto 6 ain7rto ration 5 ratlon ration 7 on tilon ti pora-2 tion 3raon 3 raton
Corpra-

Normal tax net Income: Average for base period: Amount$50, 000 $50, 000 $50, 000 $1,000,000 $1,000,000 $1,000,000 $500,000 $1,250,000 Percent of Invested 6 9 9 6 25 30 10 30 CRapial ,Taxable year: Amount-$60,000 $60, 000 , $, o o $6o 00o$1,20o,000$1, 200,000$1,200, 600, 000 $1, 500, 000 Percent of Invested .30 7. 2 10.8 7.2 30 10.8 capital. .36 36 Net Income for excess-profits I tax: 000 $840, 000 $840, 000 $420, 000 $1, 060, 000 Averae for base period $42,000 $42,000 $42,000 Taxable year $47, 460 $47, 460 $47, 460 $949, 200d $949,200 $99,200 $118600$1186,500 Taxable excess profits: 4 Base period earnings 4 $460 method "W0 $104, 200 $104, 200 $104, 200 $761, 500 $131, 00 Return on Invested capi tal method -$460 $25, 73 $100,867 $104,20o $610,887 $761,500 $681, 500 Exeoaerofits tax: (I) Baeoperiod earnings Flat rate tax (4.1 $2,400 2O $61, 500 $61, 00 percent) A460 $49, 200 $49, 200 115 Graduated rate tax . $115 $2%460 $115 $33,180 $33, 180 $33, 180 $33, 750 $44,100 Total excess-profits $396,250 $106, 00 tax.. 2,675 $2, 576 $2, 576 $82, 380 $82, 380 $83 2) Return on invested $92 $5. 448 $26, 803 $27, 970 $228, 890 $296, 675 $2, 875 method capital
----

See footnotes at end of table .11.

Table: Table I

Table: Table I I.- Corporation 1 7

THE SEOOND REVENUE BILL

01

1940

7
Cornoration 9 Corpor tion 10
$,M~000
$1,

TABLM H1

$5, Normal tax net Income: Voo ,0 000 Average for bae period: Amount ................-. 10 .... Percent of total capital . ........ ..................... Taxable year: Amount -...-... $780, la Percent of total capital .................................................. Net Income for excess profits x: I Base period earnings method: (1) $420, 000 Average for base period ......................,.-.---Taxable year ................................. (2) Return on Invested capital method: 42,000 ..-.------. Average for bae pefrod .$108,280 $893 260 Taxable year ............................... Taxable excess profits: 4 Base period earnings method ................................................. Return on invested capital method .-Excess profits tax: (1) Bese period earnings method: 780 tax (4.1 percent)'.. ..--Flat ratn rate ...-----.----.................. Oraduated , . tax............ $30, Total tax . . . ...-----...-............ .. ...... (2) Return on Invested capital method.... .. ....
.

.......... ............................ Totalvcapital ...................................... Inves


.

Borrowed oepital ................................................................


.. ....
.........

,,,,,,,,,,,,........... ,,.. Equity capital .


........

woVol .4 00
. ..........

$8,

0, 000

800,000
000

000,0(EN
00'0

PM000

10

$78000

0000
$4OA000 $168,280
$21% 250

---

$89, 680 $,18,18

ao750 80
3

TABLE III.-Corporation 11 7
1938 1937 106
.

101

im

~~~~~~Taxable ~~~~year
$2,5G0,000 $600,000
20 $395, 500

Invested capital 1, 000, O0 $1, 600,000 $2, 000, 000 $2, 500 000 ................ Normal tax net Income: $20, 000 Amount $100,000 $180,000 $260,000 10 10 10 Percent of Invested capital -10 $205,000 $128, 6M0 Net Income for excess profits tax $86, 160 .... $167.000
> .

BspeidReturn on period Ivse ~~~~~~~~~~~~Baseinvestetid


earnings
method

method

capital

lfTet income for excess profits tax:'I Average for base period: Amount---------------------------------Percent of invested capital------------------------Taxable year: Amount---------------------------------Percent of Invested capital ------------------------Taxable excess profits'-.............................. Excess profits tax' Fiat rate tax (4.1 percent)'-........................

8.4 $395, 500 16.8 $180, 000 $20, 500....... Graduated rate tax ---------------------------$89, 018 $64, 675 Excess profits,--------$109, 618 $64, 675 13. 8 27.7 Excs poistxapecnof nt income after Income tax -----------8.4 $395, 600 15.8 $243. 795

$148, 706

$148, 705

I Except where otherwise indicated It Is assumed that (1) Invested capital remains unchanged' (2) for the base period Federal Income taxes amounted to 16 percent of net income; (3) the corporation derived no income from dividends from domestic corporations, Interest on taxable United States securities, or capital gains; and (4)I the corporation had no borrowed capital. Not Income before deduction of normal tax. I Net Income after deduction of normal tax. The amount for the taxable year is the "excess profits net Income." 4 Excess profits net income for the taxable year leas the specific exemption of $6,000 and the excess profits credit. Flat rate tax of 4.1 percent is computed on normal tax not Income. capital and 333 percent of the $1,500,000 borrowed 'Invested capital consists of the $3,500,000 5 Ipt Is assumed that this corporation (1) distributed aL' its net Income in dividends; (2) derived no Income from dividends from domestic corporations, Interest on taxable United States securities or capital gains; and (3) had no borrowed capital. Normal Income taxes ire computed at rates effective In the several years

[I. Repts. 78, vol. -8

THE SECOND REVENUE BILL OF 1940


6. EXCESS-PROFITS NET INCOME

The net income for excess-profits tax purposes is the normal-tax net income for the purposes of the general corporate income tax with certain adjustments. TFor both the taxable years and the years in the base period, where either method of measuring excess profits is used, the normal-tax net income is adjusted by the exclusion of gain or loss from the sale or exchange of capital assets (depreciable or nondepreciable) held for more than 18 months, the deduction of the normal corporate income tax, and the exclusion of income arising from the retirement or discharge of the taxpayer's own indebtedness. Where the second method of measuring excess-profits is used, the normal-tax net income for both the taxable years and the years in the base period is further adjusted by increasing the credit for dividends received to 100 percent and maki it applicable to dividends on the stock of all corporations, whether domestic or foreign, except dividends (actual or constructive) on stock of foreign personalholding companies. In addition, the deduction for interest paid or accrued is reduced by an amount which is the same percentage of so much of such interest as represents interest on borrowed capital (as defined in the bill) as the borrowed invested capital (as defined in the bill) is of the total borrowed capital. For the years in the base period only, where either method of measuring excess profits is used, the normal-tax net income is adjusted further by the addition thereto of the amount of losses, not compensated for by insurance or otherwise, arising from fires, storms, shipwreck, or other casualty, or from theft. In addition, there is added back, for the years in the base -period, the amounts which were deductible on account of any repayment or credit by a corporation to its vendee of any amount attributable to any tax under the Agricultural Adjustment Act. The adjustment of income to take care of these unusual and nonrecurring items makes for equity and the removal of hardships which would otherwise occur. - For the purposes of the application of the 4.1-percent tax (described below), which is a prerequisite to the use of the first method of measuring excess profits, the tax base is the same to which the general corporate income tax applies. This 4.1-percent tax, however, is a part of the excess-profits tax structure and for this reason is not deductible from the normal-tax net income in arriving at the excess-profits net income for the purposes of the graduated excess-profits tax.
7. SPECIFIC EXEMPTION

After the amount of the excess profits is determined under either the first or second method, the amount so determined is reduced by a specific exemption of $5,000 before the application of the graduated excess-profits tax. It is felt that this liberal exemption will be a substantial benefit and encouragement to small corporations.
&S RATES OF TAX

There are two distinct sets of excess-profits tax rates the election of which depends upon the method used to measure the excess profits.

Table: [No Caption]

Table: [No Caption]

Table: [No Caption]

THE SECOND REVENUE BILL OF 1940

First method-Based on income. If the taxpayer has elected to measure its excess profits by this method, it is required to pay a tax of 4.1 percent, in addition to its general corporate income tax at a maximum rate of 20.9 percent, upon its normal-tax net income. In addition, it is required to pay on its excess-Profits net income, reduced by the excess-profits credit and the specific exemption of $5,000, a tax at the following graduated rates: RdA* of tax. Amount of excess profits: percent ,
25 First $20,000--------------------------------------------------30 Next $30,000 35 Next $50,000 -----40 Next $150,000 -45 Next $250,000 50 Over $500,000 _---

The following will illustrate the computation of the excess-profits tax under this method, the normal income tax, and the total:
Normal tax net income -$2,200,000 ----2,000,000 Excess-profits net income Less credits: $5, 000 Specific exemption Base-period average excess-profits net income -500, 000 Normal tax (20.9 percent of $2,200,000) -459, 800 964, 800 1,035,200 Excess-profits tax *baseExcess-profits tax: Under graduated schedule,: 25 percent of $20,000 -5,000 30 percent of $30,000 -9,000 35 percent of $50,000-17,500 40 percent of $150,000 -60, 000 112, 500 46 percent of $250,000 --6_267, 50 percent of $535,200 -2 600 471, 600 Total -Under flat rate (4.1 percent of $2,200,000) -. 90, 200 61, 800 Total excess-profits tax -Normal tax (20.9 percent of $2,200,000) 459, 800 Total income and excess-profits tax-1, 021, 600

Second method-based on income and invested capital. If this method is used to measure the excess profits, the 4.1-pereent tax required under the first method is not imposed. There is imposed, however, upon the taxpayer's excess-profits net income, reduced by the excess-profits credit and the specific exemption of $50O0, a tax at the following graduated rates: Rwe4
Aniount of excess I)rofitai: First $20,000
-

palcent

Next $30,000--------------------------------------------------Next $50,000 --. Next $150,000 -- ----------------------------------Next $250,000 Over $500,000

20 25 30 35 45

Table: [No Caption]

income tax and the total may be illustrated as follows:

THE SECOND REVENUE BILL OF 1940 10 The tax cormstation under this method, together with the normal

Normal tax net income -$--- 300, 000 $3, Invested capital -20, 000, 000 Base period percentage -i Excess profits 3, 040, 200 Les credits: Specific exemption -$5, 000 10 percent of $20,000,000-2, 000, 000 flfl - 1, 035, 200 9. O Exces-profits tax base 1, 035, 200 Excess-Drofits tax: $'r26,000 at 20 percent -4, 000 at 25 percent 7,500 60,000 at 30 percent15, 000 $1150,000 at 35 percent52, 500 250,000 at 40 percent -100, 000 635,200 at 45 percent -240, 840 Excess-profits tax -419, 840 Incomee tax (20.9 percent of $3,300,000) -689, 700 Total tax -1,109, 540
-----

10,000

9. INVESTED CAPITAL

The invested capital for any day of the taxable year consists of equity invested capital and borrowed invested capital (a) Equity invested capital.-Equity invested capital is the sum of the following items: (1) Money paid in for stock or as paid-in surplus or as a contribution to capital; (2) Property paid in for stock or as paid-in surplus or as a contribution to capital; (3) Taxable stock dividends; and (4) Accumulated earnings and profits as of the beginning of the taxable year; reduced by the sum of the following items: (1) Distributions out of capital during prior taxable years; (2) Distributions previously made during the taxable year out of capital or out of the accumulated earnings and profits as of the beginning of the taxable year. Fluctuations in the earnings and profits account for the taxable year have no effect upon the invested capital for the taxable year. Deficits in the earnings and profits account, moreover, d'io-not reduce the invested capital. Nevertheless, deficits in the earnings and profits account must be made good out of earnings and profits before any increase in invested capital results from the earnings and profits account. (b) Borrowed invested capitaL.-Borrowed- capital is included in invested capital under a graduated limitation at varying percentages (100, 66%, 33X), these percentages depending upon the amount of equity invested capital. For example, if the equity invested capital of a corporation is $60,000, it is allowed to include $40,000 of its borrowed capital at

Table: [No Caption]

Table: [No Caption]

11 100 percent, $900,000 at 66% percent, and all remaining borrowed capital at 33% percent. Thus if this corporation has an equity invested capital of $60,000 and borrowed capital of $2,000,000, its invested capital will be increased as follows:
Borrowed capital: invested $40,000 ($100,000 less $60,000 (equity invested capital)), at 100 capital percent -$--$40,000 $900,000, at 66% percent -600, 000 $1,060,000, at 33. percent353, 333 Total ($2,000,000) -. 993, 333
Borrowed capital Wnluded in

THE SECOND REVENUE1 BILL OF 1940

If the equity invested capital is $100,000 or more, say $300,000 and the borrowed capital is the saien, that is, $2,000,000, the invested capital would be increased as follows:
I ncltuid n Borrowed capital: injlstd $700,000 ($1,000,000 less $300,000 (equity invested capital)), at capital $466,667 66% percent $1,300,000 ($2,000,000 1le8 $700,000), at 33% percent-433, 333 Total -900, 0o

Borrowed caps

foreign personal holding company), and (2) State and local securities, obligations of corporate agencies of the United States, and obligations of the United States or its possessions. All other assets are "admissible assets". The invested capital is so reduced for the reason that since the income from inadmissible assets is not taxable to the corporation, the assets from which such income arose should be excluded from invested capital. Inadmissible assets are not deducted directly from the invested capital for the reason that the total of admissible and inadmissible assets is not ordinarily equal to the invested capital.
11. PERSONAL-SERVICE CORPORATIONS the bill, a personal-service corporation may

INADMISSfIBLE ASSETS The average invested capital as computed above is reduced by a percentage which is the ratio of the inadmissible assets of the corporation for the year to the total of admissible and inadmissible assets for such year. "Inadmissible assets"- are (1) corporate stocks (except stock in a
10. ADMISSIBLE
AND

Under signify in its return for any taxable year its desire not to bb subject to the excessprofits tax, and it will be exempt from the tax for such year. However, in order for the corporation to be exempt, the shareholders are required to include the undistributed income of such a corporation in their gross income, which then is subject to normal and surtax. A personal-service corporation is definedd as a corporation whose income is to be ascribed primarily to the activities of shareholders who are regularly engaged in the active conduct of the affairs of the corporation and are the owners at all times (luring the taxable yearof at least 80 percent in value of all the stock of the corporation and

SECOND REVENUE BILL 0 1940 in which capital is not a material income-producing factor. For this purpose an individual is considered as owning at an time the stock owned at such time by his spouse or minor child. Thus all the shareholders, who are regularly engaged in the active conduct of the affairs of the corporation may be counted in determining whether such a corporation may be classified as a personal-service corporation instead of merely the principal shareholders. Moreover, to determine whether such shareholders own at least 80 percent in value of the stock of the corporation, the stock owned by their spouses or minor children may be included. A personal-service corporation does not include a foreign corporation or any corporation 50 percent or more of whose gross income consists of gains, profits, or income derived from trading as a principal.

12

THE

12. FOREIGN CORPORATIONS

In the case of a foreign corporation in existence during the entire base period and engaged in trade or business in the United States or having an office or place of business therein, its excess-profits credit consists of the excess of its excess-profits net income for the taxable year over its average excess-profits net income for the base period, with no adjustments for additions to or reductions in capital. Such corporations will also be entitled to a specific exemption of $5,000. In the case of such foreign corporations which were not in existence during the entire base period, the tax is computed by, reference to the investe(l capital, which is determined as follows: The daily invested capital for any day of the taxable year is the aggregate of the adjusted basis of each United States asset held by the taxpayer in the United States on the beginning of such day. For the purpose of reducing the average invested capital by the ratio of inadmissible assets to total assets, the terms "admissible assets" and "inadmissible assets" include only United States assets.
18. CREDIT FOR FOREIGN TAXES

The bill allows a credit against the excess-profits tax for income and profit taxes paid or accrued during the taxable year by any domestic corporation to any foreign country or to any possession of the United States. The credit is subject to the same lhnitations which apply to of the corporate normal income tax. the credit allowed for the This prevents the credit purpose rom reducing the tax on any excess-profits tax net income derived from American sources. The American tax, by reason of the credit, will apply against the income from foreign sources only where the foreign tax rate is less than the tax rate imposed by the United States. It was believed necessary to provide such a credit to place our American corporations on an equal competitive basis with foreign corporations located abroad.
14. EXCESS PROFITS CREDIT IN CONNECTION WITH CERTAIN EXCHANGES

First method-Based on income. Under the provisions of supplement A of the bill a domestic corporation which was not in existence at the beginning of its base period is allowed to compute its excess-profits credit undor this method, if

13 it acquired, or resulted from the coalesing of, another corporation through certain tax-free exchange, where the other corporation was in existence at the beginning of the bae period or had a predecessor which was in existence at such time; and, having so elected, it is allowed to use as its excess-profits net income for the taxable years in the base period prior to uch acquiring or coalescing the excessprofits net income of the other corporation. For the yearn in the base period subsequent to such acquiring or coalescing, it uses its own excess-profits net income for the purpose of computing the credit. A domestic corporation which v-> in existence at the beginning of the base period and which is thereby entitled to elect to compute its excess-profita credit under section 713 by virtue of the provisions of section 712, if it does elect to compute such credit under section 713, is permitted to add to its excess-profits net income for the years in the base period the excess-profits net incomes of corporations which it absorbs by a statutory merger or by liquidation under section 112 (b) (6), where such merged or liquidated corporation was in existence at the beginning of the base period or had predecessors in existence on such date. Second method-Based on income and invested capital. Supplement B contains provisions relative to the effect of certain tax-free exchanges upon the computation of the excess-profits credit based on income and invested capital. Such provisions are designed (1) to permit the base period exp, once of all corporations which coalesced during the base period to be used in computing.the baseperiod experience of the successor corporation, (2) to prevent large corporations from obtaining undue advantage from reorganizing, by means of tax-free transactions, into groups of small corporations, (3) to prevent invested capital acquired in certain tax-free exchanges from being treated as new capital to any greater extent than it was so treated in the hands of the corporation from which it was acquired, (4) to prevent step-ups of base-period percentages, and (5) to prevent a corporation the proportion of whose borrowed capital which may be included in invested capital at 100 percent or 66% percent or the proportion of whose invested capital which is given favorable base-period percentage or now-capital treatment has been adjusted because of previous reorganizations from undoing the effects of such adjustments through transferring its assets, tax-free, to another corporation which is little more than a dummy. The nontaxable exchanges covered by Supplement B fall into two general-classes: (a) Whereby one corporation becomes several corporations, and (b) whereby several corporations become' one corporation.
15. SPECIAL RELIEF PROVISIONTS

THE FEUND REVENUE BILL OF 90

Your committee has recommended certain special relief provisions, w hich are as follows: (1) Special treatment is allowed for corporations which were required to refund to their vendees amounts attributable to any tax which was not paid tinder the Agricultural Adjustment Act of 1933, as amended. These amounts were allowed as deductions for business expenses in computing income subject to the corporation normal tax for the taxable years in the base period. This resulted in a distortion of the income in the base period. Your committee has provided that

Table: [No Caption]

14

THE SEAND REVENUE BILL OF 194

any deduction for business expenses in the base period may be decreased by the amount of the excess of such repayments over the amount required to be included in gross income by reason of such taxes for the purpose of the excess-profits tax. (2) A corporation which suffered losses during the base period because of fire, storm, shipwreck, or other casualty or from theft, not compensated for by insurance or otherwise, is afforded relief by having such deductions dillowed for the purpose of the excess-profits tax computation of the base-period income. This has the effect of increasing the base-period income. (3) The elimination of gains or losses from the sale or exchange of assets (depreciable or nondepreciable) held over 18 months, for the purpose of the base period as well as the taxable year. (4) The exclusion of income derived from the retirement or discharge of any bonds, debentures, notes, or certificates or other evidences of indebtedness which have been outstanding for more than 18 months. (5) Many corporations which had operating deficits would sustain severe hardships if their invested capital was reduced by such deficits. Your committee provided that operating deficits should reduce invested capital only to the extent of the earned surplus. Your committee has granted special relief in cases where the Commissioner is unable to determine the taxpayer's equity invested capital for the first (lay of the first taxable year beginning after December 31, 1939. In such a case, such equity invested capital shall be an amount, determined in accordance with rules and regulations prescribed by the Commissioner with the approval of the Secretary, equal to the cash on hand plus the aggregate of the adjusted bases at such time of the assets of the taxayer then held minus the indebtedness outstanding at such time. The equity invested capital for each (lay in the taxpayer's base period and for each day after the beginning of the taxpayer's taxable year shall be determined, using as the basic figure the equity invested capital as of the beginning of such first taxable year. The following example will illustrate how this provision will apply. The equity invested capital as of January 1, 1940, is computed as follows: Ad
4

,I Amets: Cash-$100000 Other sets --- 400, 000 500) 000---------------------------Total-500, 0 200, 000 ' Lem: LiabilitiesEquity invested capital -300, 000

When the equity invested capital has been determined as of any particular date, for example, January 1, 1940, it may be computed for any other date by making adjustments for profits and losses, dividends paid, and additions or withdrawals of capital occurring during the intervening pl.od. Thus, if between January 1, 1937, and January 1, 1940 the above-corporation ha(l profits (after taxes) of $200,000 and paid dividends of $150,000, the equity invested capital as of January 1, 1936, would have been $250,000. Similarly if between January 1, 19401 and January 1, 1942, the corporation had profits of $100,000 and pa(d dividends of $60,000, its equity invested capital as of January 1, 1942, would bea $340,()()0.

THE SECOND REVENUE BILL OF 1940


16. CONSOLIDATED RETURNS

15

Your committee gave consideration to requiring consolidated returns in connection with the excess-profits tax. However, it was not possible to prepare a consolidated return provison without delaying the bill for a considerable length of time. II. SUSPENSION OF THR VINsoN-TRAMMELL ACr The provisions of the Vinson-Trammell Act, as amended, relating to limitation of profit on contracts for the construction or manufacture of naval vessels and Army and Navy aircraft, are suspended as to contracts or subcontracts or such construction or manufacture which are entered into or completed during the taxable years to which the excess-profits tax will be applicable. Since the proposed excess-profits tax will apply to all corporations, including corporations now subject to the special pro t-limiting provisions. of the Vinson-Trammell Act, it is felt that such special provisions should not apply while the ex'cess-profits tax is in force. Uniformity will thereby be achieved in the treatment for tax purposes of all abnormal profits resulting from the national defense program. It is not believed that the limited types of businesses affected by the Vinson-Trammell Act should be treated during the period in which the excess-profits tax applies, differently from the way in which other businesses engaged m production for the national defense are treated. LII. PROFIT LIMITATIONS UNDER THE MERCHANT MARIN:E ACT The Merchant Marine Act of 1936, as amended, contains provisions relating to the recapture by the Maritime Commission of profits in excess of 10 percent of the total contract price of contracts and subcontracts for ship construction under that act. It is not believed desirable to suspend these provisions of the Merchant Marine Act since there are commercial considerations involved which do not apply in the case of the Vinson-Trammell Act. Private ship operators for whom vessels are constructed under the construction-diferential subsidy and charter provisions of the Merchant Marine Act are vitally interested in the cost of such vessels to the Commission. Furthermore, money recaptured by the Commission under ship-construction contracts and subcontracts paid into the Commission's revolving cornstruction fund where it is available for further ship construction and has the effect of reducing the amounts which otherwise would be required to be appropriated from time to time by the Congress for Maritime Commission shipbuilding. In order to protect shipbuilders, machinery manufacturers, and others engaged oh Maritime Commission contracts from being subeot to two profit limitation provisions at the same time, that is, the provisions of the Merchant Marine Act and the excessprofits tax provisions of the bill, your committee has suggested special treatment for excess-profits tax purposes. Under the bill, the shipbuilder or other person engaged on Maritime Commission contracts will be required to compute its excess-profits tax under two different methods and pay the lesser tax computed under either method. Under the first method, the taxpayer will be required to include only the 10 percent profit it is permitted to retain under the Merchant

Iiinitation

16

THE SECOND REVENUE BILL OF 1940

Marine Act in its gross income and compute the excess-profits tax on that basis. Under the other method, the taxpayer is required to include in gross income the entire amount of the gross proceeds from its contract and credit against the excess-profits tax the amount of any payments recaptured within the taxable year by the United States Maritime Commission with respect to such contracts or subcontracts. Under this second method, the taxpayer is thus allowed credit for any amounts recaptured by the Commission. In cases where such credit is less than the total tax so computed, the effect to the taxpayer is exactly the same as though the provisions of the Merchant Marine Act were suspended in the same manner as is proposed in the case of the Vinson-Trammell Act. IV. AMORTIZATION OF EMERGENCY FACILITIES The extension of existing facilities is a necessary and vital part of the national-defense program. To obtain the needed facilities will require the investment of hundreds of millions of dollars. Your committee has been informed by the Advisory Commission to the Council of National Defense that substantial amounts of private capital will not be invested in the construction of such facilities unless corporations are assured, in view of the fact that such facilities will be of use chiefly only during the period of i'ational emergency, that they will be permitted to amortize the co0t, thereof over a shorter period than would be permitted under the depreciation provisions of the Internal Revenue Code. Under the bill, accordingly, a corporation is allowed a deduction for income- and excess-profits tax purposes for the amortization of certain facilities which are certified by the Advisory Commission to the Council of National Defense and either the Secretary of War or the Secretary of the Navy as necessary in the interest of national defense during the present emergnecy. Such facilities are land, buildings, machinery, and equipment, or parts thereof, constructed, reconstructed2 erected, installed, or acquired after July 10; 1940, and the construction, reconstruction, erection, installation, or acquisition of which was contracted for prior to the termination of the present emergency. The write-off of the cost (adjusted basis for income-tax purposes) of such facilities is permitted to be spread over a period of 60 months, this deduction to be in lieu of the present deduction for exhaustion, wear and tear, and obsolescence provided for in section 23 (1) of the Internal Revenue Code. The taxpayer has the option of beginning the 60-month period either with the month following the month in which the facility is completed, or with the taxable year following the year in which the facility is completed, by signifying on the appropriate income-tax return its desire to have the benefits of the amortization deduction. It is further provi(le(I that if, after having elected the amortization deduction, the taxpayer desires to terminate such deduction and use the deduction provided by section 23 (1) of the Internal Revenue Code with respect to the remaln(ler of the adjusted basis of the facility, he be permitted to do so upon notice to the Commissioner at any time prior to the termination of the 60-month period and that (except as set forth below) he be not permitted thereafter again to elect amortization with respect to the saine facility.

THE SECOND REVENU

BLL 0 1940

17

The bill also provides that if the President has proclaimed the ending of the emergency, or the Secretar of War or the Secretary of the Navy has certified to the Commissioner of Internal Revenue that the facility ceased to be necessary in the interest of national defense during the emergency, and such proclamation or certificate is made before the end of the 60-month period, the taxpayer may elect to recompute the amortization deduction on the basis of the period as terminated by the proclamation or certificate in lieu of the 60-month period. The benefits of this election are accorded regardless of whether the taxpayer has in the past elected the amortization deduction with respect to the facilities involved. It is further provided that a deduction be allowed, in lieu of the amortization deduction above described, equal to the amount of certain payments received from the United States with respect to a facility if such payments are required to be included in the taxpayer's gross income. It is felt that the payments referred to should consist only of amounts certified by either the Secretary of War or the Secretary of the Navy as compensation to the taxpayer for the unamortized cost of the facility, made because further contracts with the United States involving the use of the facility are not forthcoming.

DETAILED

DISCUSSION OF CERTAIN TECHNICAL PROVISIONS OF THE BILL


SECTION 710. IMPOSITION OF TAX

Section 710 imposes an excess-profits tax at the rates hereinbefore set forth. If the taxpayer's excessprofits credit is based upon income and invested capital, the tax is measured by the adjusted excess profits net income. Adjusted excess profits net income is defined as the excess-profits net income less the sum of a specific exemption of $5,000 and the amount of the excess-profits credit. If the the excesstaxpayer's excess-profits credit is based upon profits tax 'consists of the sum of a tax measuredincome, by adjusted excessprofits net income plus a tax measured by the normal-tax net income as defined in section 13 (a) (2) of the Internal Revenue Code. In order that corporations shall not secure undue advantage under the graduated rate schedules by splitting up in tax-free exchanges, a special application of the rates is provided in section 710 (a) (3). Thus, if a corporation were to split into halves, the top bracket of $500,000 in the rate schedules must likewise be reduced by one-half to $250,000 in the case of each corporation and the lower brackets reduced proportionately in order to prevent avoidance of the graduated rate schedutie. The reduction accomplished in the bill is based upon the relation of the invested capital of the corporation prior to the split-up-to the reduced invested capital after the split-up. Sinco the bill, in section 759, makes a similar reduction in the $500,000 figure which provides the dividing line between the 8 percent and 10 percent new capital rate, and since such $500 000 figure is the same figure as the top bracket under the rate schedules, the reduction in section 710 (a) (3) in the rate schedules is for convenience based upon the reduction accomplished under section 759. The reduced amount computed under that section is called the preferential rate amount, Therefore, where the preferential rate amount of a corporation is less

REVIRNUE BILL OF 1940 than $500,000 as a result of a split-up, the dollar amounts designating the amounts of tax and the upper and lower limitations of the various brackets in the rate schedules are to be reduced to amounts bearing the same ratio to the amounts which would otherwise be applicable as such preferential rate amount bears to $500,000. No such reduction is to be made in the amounts of excess profits credit, normal-tax net income, or adjusted excess profits net income, which are determinable only by reference to other sections of the bill. Section 710 (a) (3) is applicable both to-a taxpayer whose credit is based upon income and to a taxpayer whose credit is based upon income and invested capital. In the case of a taxpayer of the former class having a preferential rate amount of $300,000, the graduated rate schedule measured by adjusted excess profits net income will, therefore, read as follows: Upon adjusted excess profits net incomes of less than $12,000, 25 percent of the adjusted excess profits net income. $3,000 upon adjusted excess profits net incomes of $12,000; and upon adjusted excess profits net incomes in excess of $12,0QO, and not in excess of $30,000, 30 percent in addition of such excess, $8,400 upon adjusted excess profits net incomes of $30,000; and upon adjusted excess profits net incomes in excess of $30,000, an(l not in excess of $60,000, 35 percent in addition of such excess. $18,900 upon adjusted excess profits net incomes of $60,000; and upon adjusted excess profits net incomes in excess of $60,000, and not in excess of $150,000, 40 percent in addition of such excess. $54,900 upon adjusted excess profits not incomes of $150,000; and upon adjusted excess profits net incomes in excess of $150,000, and niot in excess of $300,000, 45 percent in addition of such

18

THE SECOND

$122,400 upon adjusted excess profits net incomes of $300,000; and upon a(ljusted excess profits niot incomes in excess of $S0,000, 50 percent in addition of such excess. Thus, if the taxpayer's adjusted excess profits net income were $180,000, his excess-profits tax would be $68,400, computed under the rate schedule above plus 4&o per contum of the normal tax net income. In.the case of a taxpayer using the credit based upon income and invested capital, the rate schedule set forth in section 710 (a) (2), applicable to such taxpayers, is similarly adjusted under subsection

excess.

(a) (3).

SECTION 711. EXCESS-PROFITS NET INCOME

The excess-profits net income for purposes of the act is defined in section 711. For taxable years beginning after December 31, 1939, the excess-profits net income is the normal tax net income for such year, as defined in section 13 (a) (2), with certain prescribed adjustinents depending upqll which of the alternative methods provided for computing the excess-profits credit is used. The adjustments to the normal tax not income for the purpose of determining the excess-profits net income are as follows: (A) If the excess-profits credit for the taxable year is computed under section 713 on the basis of the average earnings for the base period, the adjustments to be inrade are as follows:

(2) The amount of any gain or loss realized upon the sale or exchange of a capital asset 'held for more than 18 months shall be excluded. For the purpose of this adjustment, capital asset means a capital asset as defined in section 117 of the Internal Revenue Code but without any exception with respect to an asset of a character which is subject to the allowance for depreciation if such asset otherwise constitutes a capital asset within the meaning of the definition. (3) There shall be excluded the amount of any income derived from the retirement or discharge by the corporation of any of its bonds, debentures, notes, or certificates of indebtedness, or any indebtedness evidenced by a writing which (including renewed obligations) were outstanding for more than 18 months prior to the date of such retirement or discharge. (B) If the excess-profits credit is computed under section 7i4 by the invested-capital method, the following additional adjustments shall be made: (4) The deduction allowable for interest paid or accrued during the taxable year shall be reduced by an amount which is the same percentage of so much of such interest as represents interest on borrowed capital as the borrowed invested capital is of the total borrowed capital. (5) Instead of the limited credit for dividends received, allowed in computing the normal tax net income, a credit' is to be allowed in the full amount of all dividends received (without regard to the limitation as to the amount of the adjusted net income) from another corporation, whether foreign or domestic, except dividends (actual or constructive) on stock of foreign personal holding companies. For taxable years in the base period, the excess-profits net income is determined in the same manner as described for taxable years beginning after December 31, 1939, but with the additional adjustments hereinafter described, For taxable years subject to the Revenue Act of 1936, the basis for the application of the various adjustments is the normal tax net income as defined in section 13 (a) of such'act, and for any other taxable year beginning after December 31, 1937, and before January 1, 1940, the special class net income as defined in section 14 (a) of the applicable revenue law. The normal tax net income or the special class net income for taxable years in the base period is to be computed as if section 117 of the Internal Revenue Code were a part of the revenue law applicable to the taxable year for which such income is being determined, with the exceptions hereinafter noted. In the application of section 117, the definition of capital assets is to be appd in the case of.property held for more than 18 months as if depreciable assets were not excluded; that is, depreciable assets would be treated as capital assets if they are otherwise qualified as capital assets under the definition. If the computation of the excess-profits net income for a taxable year in the base period is being made in connection with the determination of the excess-profits tax liability for a taxable year beginning after December 31, 1940, then the net short-term capital loss carry-over provided in section 117 (e) shall be applicable to net short-term capital losses

19 (1) The deduction for taxes paid or accrued under the law applicable to the taxable year is to be increased by an amount equal to the amount of the tax under chapter 1 payable for such taxable year.

THE SECOND REVENUE BILL OF 1940

REVENUE BILL 0 1940 for taxable years beginning after December 31, 1934. Section 117 (e) is not applicable if the base period computation is being made for the purpose of determining the excess-profits tax liability for a taxable year beginning before January 1, 1941. Additional adjustments with respect to the base period are that deductions for losses arising from fires, storms, shipwreck, or other casualty, or from theft, not compensated for by insurance or otherwise are not included and the deduction for expenses is diminished by payments or credits to vendees of reimbursements to them of processing and other taxes under the Agricultural Adjustment Act of 1933. The effect of these adjustments is to increase the excessprofits tax net income in the base period.
on

THE SECOND

SECTION 712. EXCES-PROFITS CREDIT

Section 712 provides that a domestic corporation, the first excessprofits tax taxable year of which begins on any date in 1940, and which was in existence during the entire 48 months prior to such date, shall be permitted to elect for each taxable year the credit under section 713 or section 714. The election must be made in its return for the taxable year and once having been made is irrevocable for such year. In the case of all other domestic corporations, the excess-profits credit for any taxable year must be computed in accordance with the invested capital method provided in section 714. In the case of a foreign corporation engaged in trade or business within the United States or having an office or place of business therein, if its first excess-profits -tax taxable year begins on any date in 1940 and it was in existence during the entire 48 months prior to such date and was engaged in trade or business within the United States or had an office or place of business therein at any time during each of the taxable years in the 48 months prior to such date, it must compute its excess-profits credit by the method provided in section 713. All other foreign corporations engaged in trade or business within the United States or having an office or place of business therein are required to compute their excess-profits credit in accordance with the method provided in section 714. If the excess-profits credit of a foreign corporation is required to be computed under section 713, no adjustments are allowed for additions to or reductions in capital.
SECTION 718. EXCESS-PROFITS CREDIT BASED ON AVERAGE BASE PERIOD INCOME

The credit provided under section 713 is based upon a corn arison of income for the taxable year with the average income for the base period. Such credit consists of the average base period net income reduction in capital after the beginning of such taxable year. The term " base period" means thle taxable years beginning after December 31 1936, and before January 1, 1940. The base period net income consists of the aggregate of the excessprofits net income for each of the taxable years of the taxpayer included in the base period less, in the cam of taxable years included in such base period in which the deductions plus the credit for dividends received exceed the gross income, the amount of such excess, except as pointed out in the following paragraph of this report. In determining

THE SECOND RIEVENUE BILL OF 1940

21

such excess, the adjustments required by section 711 (b) (in respect of long-term capital gains and losses, the deduction for taxes, casualty loass, processing tax repayments, and the exclusion of income derived from the retirement or discharge of indebtedness of the corporation) for the purpose of computing the excess-profits net income shall be made. The average base period net income is determined by dividing the base period net income by the total number of months in the taxable years included in the base period and multiplying the quotient thus obtained by 12. With respect to taxable years in which the deductions plus the credit for dividends received exceed the gross income the, following rules are applicable to the treatment of such excess: If the deductions plus the credit for dividends received exceeded the gross income in only 1 Iyear, the amount of the excess to be taken into account in computing the average base period net income shall be zero. If the deductions plus the credit for dividends received exceed the gross income in more than I of the taxable years included in suchbase period, the amount to be taken into account in computing the average base period net income shall be zero for the year in which such excess is the greatest and for the other year or years shall be the amount of the excess determined in respect of such year or years. For the purpose of the excess-profits credit, the average base period net income shall not in any case be less than zero, If a domestic corporation computes its excess-profits credit on the basis of the average earnings for t e base period, such credit is adjusted for any changes in capital occurring after the beginning of its first taxable year under the excess-profits tax. The excess-profits credit will be increased by 8 percent of the net capital addition for the taxable year or decreased by 6 percent of the net capital reduction for the taxable year. The net capital addition for the taxable year is computed by taking the aggregate of the daily capital addition for each day of the taxable year and subtracting therefrom the aggregate of the daily capital reduction for each day of the taxable year. Tho difference thus obtained is divided by the number of days in the taxable year. If the aggregate of the daily capital reductions exceeds the aggregate of the daily capital additions, the excess divided by the number of days in the taxable year represents the net capital reduction for the taxable year. The daily capital addition for any day of the taxable year is the aggregate of the amount of money and property paid in for stock, or as paid-in surplus, or as a contribution to capital, after the beginning of the taxpayer's first taxable year tinder the excess-profits tax and prior to the day for which the computation is made. Property paid in is included in an amount equal to its unadjusted basis for determining loss upon sale or exchange. If such unadjusted basis is a substituted basis, it is adjusted with respect to the period before the property was paid in, in the manner provided in section 113 (b) (2). For the purpose of determining the amount of the laily capital addition a distribution by the taxpayer to its shareholders in its stock or right to acquire its stock shall note regarded as money or property paildin for stock, or as paid-in surplus, or as a contribution to capital. The amount of the daily capital addition as above computed shall be reduced by the excess, if any, of the excluded capital for such day

22

THE SECOND REVENUE BILL OF 1940

over the excluded capital for the first day of the taxpayer's first taxableyear under the excess-profits tax. Excluded ca ital consists of (1) obligations described in section 22 (b) (4) (A), (), or (C), any part of the interest upon which is excludible from gss income or allowable as a credit against net income, and (2) stock held by the taxpa er the dividends upon which are allowed as a credit under section 26 (b) The excluded capital for any day-is an amount equal to the sum of the following. (1) The aggregate of the adjusted basis (for determining loss upon sale or exchange) as of the beginning of such day of the abovedescribed obligations held by the taxpayer at the beginning of such day; and (2) Eighty-five percent of the aggregate of the adjusted basis (for determining loss upon sale or exchange) as of the beginning of such day of the above-described stock held by the taxpayer at the beginning of such day. The capital so excluded for the purpose of determining the additions to invested capital represents capital the income from which is not subjected to tax. The daily capital reduction for any day of the taxable year is the aggregate of the amounts of distributions to shareholders after the beginning of the taxpayer's first taxable year under the excess-profits tax and prior to such day, which distributions are not out of earnings and profts.
SECTION 714. EXCESS-PROFITS CREDIT BASED UPON INCOME AND INVESTED CAPITAL

Domestic corporations which were in existence during the whole of the base period may elect, and all other domestic corporations are required, to compute the excess-profits credit by the method provided in section 714. Such credit is based upon the relationship of income to invested capital. In determining such credit, there is first ascertained the base-period percentage. This is defined in section 714 as the percentage which the base period net income is of the aggregate of the invested capital for each of the taxable years in the base period but not to exceed 10 percent or be less than 5 percent. With respect to the first $600,000 of invested capital in the taxable year, not in excess of the lowest invested capital the minimum is 7 percent. Any increase in the invested capital over the invested capital at the close of the -base period or the invested capital for any taxable year beginning after December 31, 1939, and preceding the taxable year for which the credit is being computed, whichever is the lower will increase the credit computed upon such previous invested capital by 10 percent of so much of the new invested capital as does not produce a total invested capital in excess of $500 000 and by 8 percent of the remainder of the new invested capital. Xn example of the operation of this rule is set forth in the preceding portion of this report. The term "base period" means the taxable years beginning after December 31, 1935, and before January 1 1940, except that in the case of a taxpayer the first taxable year of which under the excess-profits tax begins on any date in 1940, and which was in existence during only part of the 48 months prior to such date, the base period shall be such 48 months. With respect to a corporation which was in existence

THE BAOND REVENUE BLL OF 12

2%g

during only part of the base period, the bill provides that for each of the taxable years of 12 months during the whole of which it was not in existence, it shall be deemed to have an invested capital equal to its invested capital as of the first day of its taxable year beginning in 1940, reduced by an amount which is the same percentage of such invested capital as the percentage which the total of the inadmisible assets for the preceding taxable year is of the total of inadmissible and admissible akfor such taxable tyear such percentage to be computed in accordance with the methd provided in section 720. The invested capital for the taxable year consisting of the remainder of that part of its base period during which it was not in existence shall be an amount determined as above, multiplied by the number of days in such remainder and divided by the number of days in the 12 months preceding the first day of its existence. The excess-profits net income for any of the taxable years of 12 months in the base period during which the corporation was not in existence is an amount equal to 10 percent of the first $600,000 of the constructive invested capital and 8 percent of the balance of such constructive invested capital. The excess-profits net income for any period of less than 12 months during which the corporation was not in existence is a proportionate part of such amount. Corporations which were not in existence during any part of the base period are allowed an excess-profits credit equal to 10 percent of that part of the invested capital which does not exceed $500,000 plus 8 percent of the remainder. For the purpose of determining the excess-profits credit, based upon invested capital under section 714, the base-period net income is computed in Ethe same manner as the base-period net income for the purpose of the excess-profits credit provided under section 713, except that in determining the excess-profits net income, or the excess of the deductions plus the credit for dividends received over the gross income, for taxable years in the base period, the following additional adjustments are made: (1) The adjustment provided in section 711 (b) with respect to the credit for dividends received; and (2) The adjustment provided in section 711 (b) with respect to the de uction allowable for interest paid or accrued during the taxable year. These adjustments are described in the discussion of the section dealing with the determination of excess-profits net income. Also, similar to the treatment provided under section 713, if the deductions plus the credit for dividends received exceed the gross income for one of the taxable years in the base period, such excess is treated as zero in determining the base period net income. If there was such an excess in more than one of the taxable years in the base period, only the excess for the taxable year in which such excess was greatest shall be treated as zero. The rule permitting such an excess to be treated as zero applies with respect to taxable years in the base period not only in the case of corporations which were in existence during the whole of the base period but also in the case of corporations which were in existence during only part of the base period. This rule has the effect of preventing too great a reduction of the excess-profits credit for an abnormal year.
LI, Repts. 76-3, vol. .-69

24

THIE

SECOND REVENUE BILL OF 1940

SECTION 71-719.

IN*]CBTED

CAPITAL

Invested capital for any taxable year, including the taxable years in the base period, is defined in section 715 as the average invested capital for such year and is based on the invested capital for each day of the taxable year. Average invested capital is the aggregate of the the daily invested capital for each day of the taxable year divided by the number of days in such taxable year or, for a taxable year in the base period, the aggregate of the daily invested capital for each day of such taxable year divided by the number of days in the 12 months ending with the close of the taxable year. The invested capital for a taxable year consists of two component parts: (a) Equity invested capitals and (b) borrowed invested capital. (a) kqvipy intveted cavital.-The equity invested capital for any day of the taxable year is determined under section 718, which provides that it shall be (leterirliled as of the beginning of such day and shall be the sum of the following amounts(1) Money paid in.-Money previously paid in for stock, or as paid-in surplus, or ast a contribution to capital. (2) Property paid in.-IProperty other than money previously paid in for stock, or as paid-in surplus, or as a contribution to capital, regardless of the time paid in. Such property shall be included at an amount equal to its unadjusted basis for determining loss upon sale or exchange. If the unadjusted basis of such property is a substituted basis it shall be adjusted, with respect to the period before the property was paid in, in the manner provided in section 113 (b) (2). The use of the unadjusted basis is dictated by the fact that adjustments of basis, notably for depreciation, are reflected in earnings and profits. If the property so paid in was disposed of before the beginning of the taxable year, such basis is determined in the same manner as if the property were still held by the taxpayer at the beginning of the taxable year. The result is uniformity of basis treatment, regardless of the law in effect at tile time of the disposition of the property (3) Yaxable stock ditn'dends,-Distributions in stock of the corporation, or in rights to acquire its stock, to the extent to which they constituted a distribution of earnings and profits other than earnings and profits of the taxable year. Taxable stock dividends are included in invested capital because they represent, in effect a reinvestment of earnings in the business. Conversely, if a stock iividend was not subject to tax in the hands of the distributed because it did not constitute income to him within the meaning of the sixteenth amendment to the Constitution or was not taxable to him under the applicable revenue law, it is not deemned to reduce the earnings and profits account and is therefore already reflected in the accumulated earnings and profits. In determining whether a taxable stock dividend is out of the earnings and profits of the taxable year, such earnings and profits are computed as of the close of such taxable year without diminution by reason of any distribution made during such taxable year or by reason of the excess-profits tax for such year, and the determination is to be made without regard to the amount of earnings and profits at the time the distribution was made. This rule avoids the necessity of adjusting the learning and profits of the taxable year by reason of the excess-profits tax imposed with respect to such earnings or by season

THE SECOND REVENUE BILL OF 1940

26

of any distribution made during such taxable year for the purpose of determining the amount of earnings and profits available as of the date of distribution. (4) Earnings and projmt at beginning of year.-The accumulated earnings and profits as of the beginning of the taxable year. If there is a deficit in the accumulated eanins and profits as of the beginning of the taxable year, such deficit shall not be taken into account and in such cases the earnings and profits as of the beginning of the taxable year shall be considered as zero, for the purpose of computing the invested capital for such year. In computing such earnings and profits for taxable years beginning after December 31, 1940,. distributions made during the first 60 days of the taxable year are deemed, to the extent they do not exceed the accumulated earnings and profits as of the beginning of the taxable year, to have been made on the last day of the preceding taxable year. Under various provisions of the Internal Revenue Code dealing with exchanges and liquidations, the transfer of the property by a corporation to another corporation results in the nonrecognition, in whole or in part, of the gain or loss realized by the transferor upon such transfer. In such cases well established principles of income tax law require that the earnings and profits of the transferor shall go over to the transferee and shall be considered to be earnings and profits of the transferee for tax purposes. Subsection (c) (4) of section 718 provides that such transferred earnings and profits shall not be taken into account in computing the earnings and profits as of the beginning of the taxable year for the purpose of determining the equity invested capital. Inasmuch as the property receivedin by the transferee upon such a transfer is included in such cases the equity invested capital at its adjusted basis in the hands of the transferor, it is necessary to exclude the earnings and profits acquired by the transferee by reason of such transfer in order to avoid duplication. The sum of the above-described amounts shall be reduced by the sum of the fallowing: (1) Ditdributions in previous year8,-Distributions made in prior taxable years which were not out of accumulated earnings and profits. (2) Distribution* during the year.-Distributions previously made during the taxable year which are not out of the earnings ahd profits of such taxable..year. Distributions made during the first 60 days of the taxable year, to the extent they do not exceed the accumulated earnings and profits as of the beginning of the taxable year, are deemed to have been made on the last day of the preceding taxable year. Moreover, in determining whether a distribution is out of the earnings and profits of any taxable year, such earnings and profits are computed as of the close of such taxable year without diminution by reason of any distribution made during such taxable year or by reason of the excess-profits tax for such year, and the determination is to be made without regard to the amount of the earnings and profits at the time the distribution was made. The purpose of this latter rule is tlie same as indicated in the paragraph dealing with taxable stock dividends. For the purpose of the conclusive presumption respecting dividends out of earnings and profits paid during the first 60 days of the taxable year, such distributions shall be considered in the order of time and the accumulated earnings and profits as of the beginning of the taxable

(b) Borrowed invested capital.-Borrowed invested capitaldfor any day of the taxable year is to be based on the borrowed capital at the beginning of such day. Borrowed capital consists of the outstanding indebtedness of the taxpayer (exclusive of interest) which is evidenced by bond, note, debenture, bill of exchange, certificate of indebtedness, mortgage, or deed of trust, or any other written evidence of indebtedness. The amount to be included in invested capital is limited to varying percentages of the borrowed capital, de pending upon the amount of the equity invested capital. These limitations are as follows: (1) If the equity invested capital is less than $100,000, 100 percent of that portion of the borrowed capital which does not exceed the difference between $100,000 and the equity invested capital, plus 66% percent of so much of the remainder of the borrowed capital as does not exceed $900,000, plus 33% percent of any remaining borrowed capital. (2) If the equity invested capital is $100,000 or more and less than $1,000,000, 66% percent of that portion of the borrowed capital which does not exceed the difference between $1,000,000 and the equity invested capital, plus 333% percent of the remainder of the borrowed capital. (3) If the equity invested capital is $1,000,000 or more, 33% percent of the borrowed capital.
SECTION 720. INADMISSIBLE ASSETS

SECOND REVENUE BILL OF 1940 year shall be computed without regard to the presumption. The presumption applies only with respect to taxable years beginning after December 31, 1940.

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THE

Sections 718 and 720 of the bill provide that the average invested capital of the taxable year shall be reduced by an amount which is the same percentage of invested capital as the inadmissible assets arc of the total of admissible and inadmissible assets, iyith an adjustment for short-term capital gain realized upon the sale or other disposition of such inadmissible assets. The terms "admissible" and "inadmissible assets" are defined in section 720, and the computation to (determine the percentage of reduction is made in accordance with the provisions of such section. Inadmissible assets are: (1) Stock ill a corporation except stock in a foreign personal holding company and (2)0 ligation described in section 22 (b) (4) (A), (B), or (0) any part of the interest/ from which is excludible from gross income or allowable as a credit agains'i net income. Such obligations include State and local securities, obligations of corporate agencies organized under an act of Congress, and obligations of the United States or its possessions. Admissible assets are all assets other than inadmissible assets, except as provided in section 753. The investe(l capital is so reduced because the income from inadmissible assets is not inelhdible in the excess profits not income of thei corporation and, therefore the assets from which such income arose should be excluded from invested capital. The inadmissible *assets are not (leducted directly from the invested capital for the reason diat

provides that the amount attributable to each asset shall be determined, under regulations prescribed by the Commissioner with the approval of the Secretary, by ascertaining the adjusted basis thereof for each day of the taxable year and adding such daily amounts. In the case of a taxable year for which the excess-profits tax is being determined, the adjusted basis shall be the adjusted basis for determining loss upon sale or exchange under section 113, and in the case of a taxable year in the base period the adjustn.d basis shall be the adjusted basis for determining loss upon sale or exchange as determined under the law applicable to such taxable year. Section 720 (c) of the bill provides that if during the taxable year there has been a short-term capital gain with respect to an inadmissible 'the asset, an adjustment shall be made for the purpose of determining inadmissible ratio. Under this provision there is added to the total of admissible assets and subtracted from the total of inadmissible assets that proportion of the amount attributable to any inadmissible asset upon which a short-term capital gain was realized which such gain bears to the sum of such gain plus the dividends and interest on such asset for such year. For the purpose of this provision, shortterm capital gain means a short-term capital gain as defined in section 117 of the Internal Revenue Code. The effect of this adjustment is to include as an admissible asset that proportion of the amount attributable to the inadmissible asset which the earnings on such asset included in taxable income bear to the total of the earnings on such asset during the taxable year.
SECTION 721. EQUITY INVESTED CAPITAL IN SPECIAL CASES

27 the total of admissible and inadmissible assets is not ordinarily equal to the invested capital. For the purpose of determining the ratio of inadmissibles to the total of admissibles and inadmissibles, section 720 (b) of the bill

THE SECOND REVENUE BILL OF 1940

The bill provides a special method of determining equity invested capital in cases where the Commissioner is unable to determine the taxpa her's equity invested capital for the first day of the first taxable year beginning after December 31, 1939, under the rules previously discussed. In such: a case, the equity invested capital as of such (late shall be anr amount equal to the cash on hand plus the aggregate of the adjusted bases at such time of the assets of the taxpayer then held minus the indebtedness outstanding at such time. The amount of the money, assets,'and indebtedness at such time shall be (etermined in accordance with regulations of the Commissioner with the approval of the Secretary. The equity invested capital for each (lay in the taxpayer's base period and for each day after the beginniing of the taxpayer's first taxable year shall be determined (under such regulations) using as the basic figure the equity invested capital so determined.
SECTION FM2. FOREIGN CORPORATIONS-INVESTED CAPITAL

In the case of a foreign corporation required to compute its excessprofits credit by the invested-capital method under section 714, the invested capital is based only on the assets of the taxpayer held by it in the United States. The bill provides that the daily invested capital

THE SECOND REVENUE BILL OF 1940 28 for any day of the taxable year shall be the aggregate of the adjusted basis of each United States asset held by the taxpayer in the United States on the beginning of such day, the determination to be made in accordance with rules and regulations prescribed by the Commissioner with the approval of the Secretary. For the purpose of reducing the average invested capital by the ratio of inadmissible assets to the sum of admissible and- inadmissible assets, the terms "admissible assets" and "inadmissible assets" include only United States assets. The term "United States asset" means an asset held by the taxpayer in the United States, determined in accordance with rules and regulations prescribed by the Commissioner with the approval of the Secretary. If the Commissioner determines that the United States assets of the taxpayer cannot satisfactorily be segregated from all its assets, section 722 (b) of the bill provides that the invested capital for the taxable year shall be an amount which is the same percentage of the aggregate of the adjusted basis of all assets held by the taxpayer as of the end of the last day of the taxable year which the net income for the taxable year from sources within the United States is of the total net income of the taxpayer for such year. Foreign corporations subject to the excess-profits tax are allowed

the specific exemption of $5,000.

SECTION 728. PERSONAL-SERVICE CORPORATIONS

Section 723 provides special treatment for personal-service corporations. Such corporations may elect not to be subject to the excessprofits tax, and in such event the undistributed income of the corporation will be taxed to its shareholders. Section 723 (a) defines a personal-service corporation as a corporation whose income is attributable primarily to the activities of shareholders who are regularly engaged in the active conduct of the affairs of the corporation and are the owners at all times during the taxable year o0 at least 80 percent in value of the stock of the corporation, and in which capital (whether invested or borrowed) is not a material income-producing factor. For the purpose of the stock-ownership requirement an individual is considered as owning, at any time, the stock owned at such time by his spouse or minor child. The term "personalservice corporation" does not include any foreign corporation, nor any corporation 50 percent or more of whose gross income consists of gains, profits, or income derived from trading as a principal. Subsection (b) of section 723 provides that a personal-service corporation may elect in its income-tax return under chapter 1 for any taxable year not to be subject to the excess-profits tax and in such event it will be exempt from tax for such taxable year. A new election must be made for each taxable year and may be made only in its incometax return for such year. If the corporation so elects for any taxable year its undistributed net income is required to be included in the gross income of the persons who were shareholders of the corporation on the last day of the corporation's taxable year. --The treatment of the undistributed income of the corporation for tax purposes both with respect to the corporation and its shareholders is prescribed in the new Supplement S. This supplement is explained later in this report.

THE SECOND REVENUE BILL OF 1940

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SECTION 724. CORPORATIONS COMPLETING CONTRACTS UNDER MERCHANT MARINE ACT, 1936

Under section 505 of the Merchant Marine Act, 1936, as amended, if any contracting party within an income taxable year completes one or more contracts or subcontracts for the construction of a vessel under such act, such party is required to pay to the United States Maritime Commission profit in excess of 10 percent of the total contract prices of such contracts and subcontracts. The excess profit so paid to the Maritime Commission, together with all other receipts of the Commission, are placed in a revolving construction fund and are available for further ship construction. In view of the fact that such profit-limiting provisions are retained, it is believed that a taxpayer subject thereto should have some relief from the excess-profits tax. Section 724 is designed to accomplish this purpose. It provides for an alternative tax which is to be paid if it is less than the tax computed under section 710. As a general rule the amounts received by the contracting party and recaptured by the Maritime Commission would be excluded from net income in computing the excess-profits tax under section 710. In computing the alternative tax provided for by section 724 the taxpayer will be required to increase its excess-profit net income and its normal-tax net income by the amount of the payments to the Maritime Commission. The tax computed upon this basis is then reduced by the amount of the payments to the Maritime Commission, and the remainder constitutes the tax which is to be paid if it is less than the tax computed under section 710. Section 727 (a) makes applicable in respect of the excess-profits tax all provisions of law (including penalties) applicable in respect of the taxes imposed by chapter 1 which are not inconsistent with the provisions of the bill. Examples of such provisions are provisions relating to the assessment and collection of deficiencies, claims for refund, periods of limitation on the assessment and collection of deficiencies or the allowance of refunds, the jurisdiction, procedure, and powers of the Board of Tax Appeals, closing agreements, etc. Section 727 (b) provides that, although section 52 (a), requiring the filing of returns, is made applicable to the epeess-profits tax, no excessprofits-tax return need be filed under such section by any taxpayer for any taxable year for which its excess-profits net income computed with the adjustments provided in section 711 (a) (2), and placed on an annual basis.as provided in section 711 (a) (3), is not greater than $5,000.
SECTION 727. OTHER LAWS APPLICABLE

Under existing law an American corporation which pays income tax to a foreign country or to a possession of the United States upon its income from such source is allowed (if it claims such credit on its return) a credit for such tax against its United States income tax but only to the extent of the American tax upon the income from such country or possession. Thus, if the United States effective taxirate is 20 percent, and the foreign effective tax rate is 25 percent, a part of the foreign tax is not allowed. Since the excess-profits tax proposed in this ill is a tax imposed upon, and measured by, income it is believed

30

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SECOND

REVENUE BILL OF 1940

that the excess-profits tax should be included in the American tax burden against which is allowed the credit for income taxes paid to foreign countries or possessions of the United States by our domestic corporations. Accordingly, section 727 provides in effect that, where a credit for the tax paid to such foreign country or possession of the United States is allowed under chapter 1, the portion, if any, of such tax not used as a credit against the tax imposed by chapter 1 by reason of the limitations of section 131 (b), will be available as a credit against the excess-profits tax subject to substantially the same principles of limitation as are applicable for normal tax purposes. PART II. EXCESS-PROFITS CREDIT IN CONNECTION WITH CERTAIN EXOHANqES SUPPLEMENT A. CREDIT BASED ON INCOME In general, this supplement has two fundamental purposes. The first is to allow a domestic corporation which was not in existence at the beginning of its base period to elect to compute its excess-profits credit under the average-earnings method provided by section 713, if it acquired, or resulted from the coalescing of, another corporation through certain tax-free exchanges, where the other corporation was in existence at the beginning of the base period or had a predecessor which was in existence at such time; and having so elected, to use as its excess-profits net income for the taxable years in the base period prior to such acquiring or coalescing, the excess-profits net income of the other corporation. For the years in the base period subsequent to such acquiring or coalescing, it uses its own excess-profits net income for the purpose of computing the credit. The second is to permit a domestic corporation which was in existence at the beginning of the base period and which is thereby entitled to elect to compute its excess-profits credit under section 713 if it does elect to compute by virtue of the provisions of section to Atb such credit under section 713, to add 712, excess-profits net income for the years in the base period the excess-profits net incomes of corporations which it absorbs by a statutory merger or by liquidation under section 112 (b) (6), where such merged or liquidated corporation was in existence at the beginning of the base period or bad predecessors in existence on such date.
SECTION 740. DEFINITIONS

The factors defined in this section may be more clearly understood by reference to the following diagram:
Taxable years:
A 1361937 -A B T COT T T T T

P P

\/
A 1938 1939 -A-----A A 1940 1941 -A 1942 ----1943 8

THE 8EWND REVSNU BDIM OF 18 81

Corporations AB, and P were in stence on Januar 1,1936, the beginning of the taxpayer T's, base period-,- Corporations T and M came into existence on January 1, 1937. In the above example: C acquired all the assets of B in return for all the stock of C, and is an "acquiring corporation" as defined in section 740 (a) (1); and B is a "component corporation" as defined in section 740 (b) (1). C was liquidated by T under section 112 (b) (6), and T is an acquiring corporation under section 740 (a) (2). C is a component corporation under section 740 (b) (2) as well as an acquiring corporation as just pointed out. S was the result of the consolidation of M and'P and is an acquiring corporation under section 740 (a) (4). M and P are component corporations under section 740 (b) (4). S was merged into T and, therefore, becomes a component corporation under section 740 (b) (3). T (although already an acquiring corporation as above stated) also is an acquiring corporation (under section 740 (a) (3)) by reason of the merger. A was merged into T and is a component corporation under section 740 (b) (3), and T is once more considered as an acquiring corporation by reason of the merger. Under section 740 (c), a qualified component corporation must be in existence either actually or constructively, on the date of the beginning of the taxpayer's base period as defined in subsection (d). Assuming, in the example given, that T, the taxpayer, is on a calendaryear basis, then all qualified component corporations of T must have been in existence, either actually or constructively, on January 1, 1936. Thus M is not a qualified component but T itself, while not in existence on January 1, 1936, is given a hypothetical existence on that date by subsection (f) because it had one or more component corporations which were themselves actually or constructively in existence on such date.
SECTION 741.

ELECTION OF INCOME CREDIT

Thus under section 741, T is permitted to elect the income credit, provided by section 713, although it wam not in existence actually on January 1, 1940, and although its component A was subject to excessprofits tax for 1941 and on the part of its year 1942 prior to its merger into T. If neither A, B, nor P had been in existence on January 1, 1936, T would have had no right of election.
SECTION 742. AVERAGE BASE PERIOD NET INCOME-

For the purposes of ascertaining T's average base period net income, T is first given a base period, whether actual or hypothetical under section 740 (d), consisting of 4 taxable years of 12 months each, the last of which ends with te beginning of its first taxable year beginning in 1940. Into these taxable years are placed the excess-profits net incomes (or in the case where the deductions and credit for dividends received exceed the gross income, the amount of such excess) of T's qualified component corporations for their taxable years in the base period ending with or within T's taxable years in such period. If T's actual

32

period experience. Subsection (e) provides that in the computation of the base-period income of both T and its component corporations, there shall be excluded any dividends paid by T or any of its components which would otherwise go into the taxpayer's base period net income. For example, if in the diagram given, C had received a dividend from T in 1937 such dividend is not affected by this subsection as T's income for such year is not taken into account in the computation of the taxpayer's base-period income. However, if T in 1938, atter it had become an acquiring corporation, had received a dividend from S, such dividend would be excluded since both T's and S's income for such year go into the taxpayer's base-period income and if the dividend were not excluded it would be counted twice. The following example illustrates the computation of T's excessprofits credit for 1942. In the example the amount stated as income is the net income adjusted by the adjustments specified in the bill and excluding the dividends on excluded stock. This assumes that all transactions take place at the beginning of each of the taxable years specified, except that it is assumed that A merged with T in the middle of 1942. For 1936, A's income is $4,000; B's income is $6,000; and P has a deficit in income of $10,000. T's base-period income for 1936 is the sum of $2,000 (one-half of A's $4,000) plus $6,000, or $8,000, minus $10 000, giving a base-period income for the year of minus $2,000. FVor 1937, A's income is $4,000; C's income is $8,000; T's income is $10,000' M's income is $4,000; and P's income is $6,000. A's income is included at one-half, or $2,000. C's income is included in full, or $8,000. T's income and M's income are not included, for they were not actually in existence on January 1, 1936, and had no component in existence on that date. P's income of $6,000 is included in full, so that for 1937, T's base-period income is $2,000 plus $8,000, plus $6,000 or $16,000.

deductions and credit for dividends received exceed the gross income, such excess) goes into its hypothetical taxable year in, or with, which such actual taxable year ends. Under subsection (f) T is denied the right to include in its aggregate excess-profits net income for the base period, its own income for the years before it became an acquiring corporation, if it was not actually in existence at the beginning of its base period. Thus, under the example given, T cannot count its income for 1937. A similar rule applies to the income of a component corporation, under which the income of M for 1937 cannot be used by Y. The excess-profits net incomes of T's component corporations attributable to periods prior to the beginning of T's base period are excluded pro rata from T's aggregate base-period net income. The same rule is applicable to T itself where its actual and constructive taxable years do not coincide at the beginning of its base period. Assuming that the merger of A into T took place in the middle of T's taxable year 1942, under subsection (f) (4) only one-half of A's base-period income can be used by.T for the purposes of computing its income credit for 1942. Thereafter, T is entitled to A's full base

THE SECOND REVENUE BIL OF 190 taxable years do not coincide with its constructive taxable years during the base period, its excess-profits net income (or, in the case where the

Table: [No Caption]

ToE SECOND REVENUE BILL 0 1MO

33

For 1938, A's income is $4,000, T has a deficit in income of $6,000, and S has a deficit in income of $10,000. A's income is included at one-half, or $2,000. T's deficit is subtracted in full, or $6,000. S's deficit is subtracted in full, or $10,000. For the year, T's base-period net income is the sum of the plus amounts, or $2,000, minus the sum of the minus amounts, or $16,000, which equals a minus $14,000. For 1939 A's income is $4,000; T's income is $20,000; and S's income is $8,000. For the year T's base-period net income is $2,000, plus $20,000, plus $8,000, or $30,000. Thus T has a base-period net income for each year in the base period as follows:
1936 -$2,000 1937---7---------------------------+16, 000 1938-14, 000 + 30,o0 1939 -

Under the rule of counting the year of greatest deficit at zero, 1938 is not included, so the aggregate base-period income of T is $30,000, plus $16,000, or $46,000, minus $2,000, or $44,000, which, divided by 4, gives a base period net income of $11,000.
SECTION 748. NET CAPITAL CHANGES

By the provisions of this section, the taxpayer is allowed to add the net additions to capital of, its component corporations accumulated' after the beginning of the first taxable year under the bill and prior to the acquiring transaction. Conversely it must take the net capital reductions of such component corporations for the same period. For example, if the merger of A into T took place in the middle of T's taxable year, assuming that A had net capital additions as of the day of the merger of $100,000, such net capital addition will be used in computing the net capital additions of T for that and subsequent days in the same manner as T's own net capital additions. The same is applicable with respect to net capital reductions.
SECTION 784. FOREIGN CORPORATIONS

Foreign corporations are not permitted the use of this supplement and are not included as acquiring, component, or qualifiedcomponent corporations.
SUPPLEMENT B. EXCHANGES

Supplement B contains provisions relative to the effect of certain tax-free exchanges upon the computation of the excess-profits credit based on income and invested capital. Such provisions are designed (1) to permit the base period experience of all corporations which coalesced during the base period to be used in computing the baseperiod experience of the successor corporation, (2) to prevent lare corporations from obtaining undue advantage from reorganizing, by means of tax-free transactions, into groups of small corporations (3) to prevent invested capital acquired in certain tax-free exchanges from being treated as new capital to any greater extent than it was so treated in the hands of the corporation from which it was acquired, (4) to prevent step-ups of base period percentages, and (5) to prevent

SECOND R eVdMUM BILL 01 10 a corporation, the proportion of whose borrowed capital which may be included in invested capital at 100 percent or 66% percent or the proportion of whose invested capital which is given favorable base-period percentage or Dew-capital treatment has been adjusted because of previous reorganizations, from undoing the effects of such adjustments through transferring its asets, tax-free, to another corporation which is little more than a dummy. The nontaxable exchanges covered by Sujpplement B fall into two general classes: (a) Whereby one corporation becomes several corporations, and (b) whereby several corporations become one corporation. The treatment accorded to such exchanges by Supplement B is in general as follows: EIxhanges occurng after base eriod.-In cases of corporate splitups the equity invested capital' the lowest invested capital, the amounts representing the point at which borrowed capital may be included in invested capital at 100 percent, 66% percent, or 33% percent, the amount-of lowest invested capital to which a minimum babe period percentage of 7 percent is applicable if the base period percentage is lower, antl the amount representing the point at which new capital is subject to the 8 percent instead of the 10 percent rate, of the original corporation are divided between it and the new corporations and each subsidiary is given the same base period percentage as that possessed by the parent corporation. Stock of the subsidiaries acquired by the parent is eliminated from consideration by being treated as neither an admissible nor an inadmissible asset. In addition, securities other than stock issued by the subsidiaries upon the exchange are excluded from the borrowed capital of the subsidiaries unless issued in connection with an assumption of the liabilities of the parent. The result is that the sum of the excess-profits credits of all such corporations is exactly the same as the excess-profits credit of the parent corporation would have been if the split-up had not taken place. Where the A corporation merely reorganizes itself into the B corporation transferring all its assets to the B corporation for all the B corporation's stock, the B corporation acquires the status of the A corporation. In cases where several corporations become one corporation the equity invested capital, the borrowed capital, and the lowest invested capital of the resulting corporation are the sum of the equity invested capitals, the borrowed capitals, and the lowest invested capitals respectively, of the constituent companies. The amounts representing the point at which borrowed capital may be included in invested capital by the resulting corporation at 100 percent, 66% percent or 33X percent, the amount of lowest invested capital of the resulting corporation to which a minimum base period percentage of 7 percent is applicable if the baso-period percentage is lower, and the amount representing the point at which new capital is subject to the 8-percent instead of the 10-percent rate are the sum of such amounts in the case of the constituent corporations, except that they may not exceed the amounts otherwise allowed by subchapter E. The base-period percentage of the resulting corporation is the weighted average of the base-priod percentages of the constituent corporations. The result is that the status of constituent corporations is attributed to the resulting corporation except for the consequences which flow from increased size.

34

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THE

aNId RUVENUR BILL OW 1O0

35

Since corporate split-ups may sometimes be disguised as transactions whereby one corporation acquires assets of another, as, for example, where the A corporation transfers a portion of its assets to an already existing B corporation which it or its shareholders, or both, afterward control, it is necessary that such transactions be treated in the same manner as corporate split-ups. The status of the acquiring corporation before the exchange is therefore ignored except to the extent that its equity invested capital, its borrowed capital, its lowest invested capital, and its base period percentage are taken into account in the computation. For this purpose "control" is defined as ownership of stock possessing at least 90 percent of the total combined voting power of all classes of stock entitled to vote and at least 90 percent of the total value of shares of all class of stock of a corporation. Similarly and to the same extent, where the shareholders of an acquiring corporation immediately before the acquisition by such corporation of the assets of another corporation are also in control after such acquisition the status of the corporation whose assets are acquired is ignored in determining the future status of the acquiring corporation. An exception to the latter rule is where corporations which resulted from a previous split-up subject to the adjustments provided by Supplement B later reunite. Exchanges involving several transferors are treated as a series of separate exchanges except where the exchange is one described in section 112 (b) (6) or so much of section 112 (c) and (e) as rofere to section 112 (b) (5). In the latter case the acquiring corporation is given a status reflecting the status of each of the transferor corporations, except where one transferor by itself is in control of the acquiring corporation after the transfer, in which case the transaction is treated as a split-up of such corporation alone. In section 112 (b) (5) cases where the acquiring corporation is controlled after the exchange by noncorporate transferors, it is treated as a new corporation except as regards lowest invested capital and the base period percentages applicable thereto. The rules provided by Supplement B relative to the computation of equity invested capital and admissible and inadmissible asets uopon tax-free exchanges apply regardless of control and regardless of whether the exchange took place before, after, or during the bas
I

period. Exchanges in base period.-Exchanges occurring in the base period are treated in the same manner as exchanges occurring after the base period insofar as the computation of equity invested capital and admissible and inadmissible assets and the exclusion of certain securiti from borrowed capital are concerned. It has been thought unnecessary to require adjustment with respect to the amounts of borrowed capital which may be included in invested capital at 100 percent, 66% percent. Other adjustments which would be made percent, and if the exchange took place after the base period have no application to the base period. In the case of corporations which have acquired substantially all the assets of one or more other corporations dung the base period, the base-period experience of such other corporations, both as respects invested capital and as respects base-period income, is included in the base-period experience of the acquiring corporation. Only actual amounts of invested capital and income are included for any part of the acquiring corporation's base period during which the acquiring

337

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3.6

THE

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REVENUE BLL 0F 1940

corporation or any one of such other corporations was in existence. For any portion of such base period during which neither the acquiring corporation nor any one of such other corporations was in existence, invested capital and income are constructed on the basis of the acquiring corporation's invested capital for the first day of its first taxable year under subchapter E. In computing the base period net income of the acquiring corporation the income for each taxable year of each corporation is taken into account, and from the sum of such amounts is deducted the sum of the deficits for each taxable year of each corporation. If, however, for one or more of the four 12-month periods preceding the beginning of the first taxable year of the acquiring corporation, the fombrned deficit of the acquiring corporation and the other corporations is greater than the combined income, the incomes and deficits allocated to the 12-month period in which falls the largest excess of deficits over incomes are to be omitted from the computation.
ZXAMPLE OF SPLIT-UP

The A Corporation which is on a calendar-year basis has for each day of 1941 equity invested capital of $1,000,000 and borrowed capital of $1,500,000. It has a base period percentage of 5 percent and lowest invested capital of $300,000. Not having been through a prior tax-free exchange, it has a second borrowed capital base (X. e., the point at which any future borrowed capital may be included in invested capital at only 33% percent instead of 66% percent) of $1,000,000 a first borrowed capital base (i. e., the point at which borrowed capital is includible at 66% percent instead of 100 percent) of $100,000, and preferential rate amount (the point at which the rate applicable to new capital becomes 8 percent instead of 10 percent and the point at which the rate applicable to lowest invested capital is the base-period percentage even though loweq than 7 percent) of $500,000. On December 31, 1941, the adjusted basis of all its assets is $2,500,000. On such date it organizes the B Corporation, transferring to it assets with ahi adjusted basis of $1,250,000 for all the stock of the B Corporation and the assumption by the B Corporation of $750,000 of the A Corporation's indebtedness represented by borrowed capital. Assuming that the B Corporation also files its returns on the calendar-year basis and that no further changes occurred during the year 1942, the excess-profits credit of the A and the B Corporations for such year will each be $60,500, computed as follows:
ration

Acorpo-

orpo ratin

.. .................0.......... Equity inveigh capital .--$50.................. 000 . $W, 000 Borrowed cpitai 750,000 750,000 Second borrowed capital base ..5............0.....0.... 000 5,, 50,000 First borrowed capital be ........... .... ............s...8........... 80,000
.

............

...................................................

.............................

Invested -pita-750,000 Lowest iniste ----pitl-I180,00 Preferential rate amount2....................8..................0000 Bae period percentage ................-.....-.. 5 (percent) ......-..-... Fxcss profits credit--$80. 500
.

780,000 150,000 280,000


5

$00, 500

Table: [No Caption]

Table: [No Caption]

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THE SECOND REVENUE BILL OF 1940

37

The excess-profits credit of the A corporation for 1941 was $121,000, computed as follows:
-- Equity invested capital $1 000,000 Borrowed capital ----------------$1, 650,000 - - -$1,000,000 Second borrowed capital base First borrowed capital base - ---$100,000 ..-Invested capital - $1,00,000 5---Lowest invested capital $300,000 Preferential rate amount -.$500, 000 Base period percentage ---I6 Excess-profits credit- - - $121, 000

On the basis of this example it will be seen that the sum of the credits of the A corporation after the split-up and the B corporation is exactly equal to the credit of the A corporation before the split-up.
LXAMPLE OF ACQUISITION

The X corporation and the Y corporation, both of which file their returns on a calendar-year basis, for each day of the calendar year 1941 and on December 31, 1941, find themselves in the following situation:
x oorpo-

ration
---

Y corpo

ration

Equity Invested capital -....... . . .-.-.-.-- $500,000 VW;, 000 ----$60 000 Borowed capital ---------0,-----..-.-.----50, 000 Second borrowed ca-ta-. bus -, 000 . ..0--$-- $o0o 000 . it borrowed cpi base--$80,00.........................0 .$6.................. ,000 000 --$600, 000 $1, 0oo, 00 Invested capital ........... .-.-.-..-..-------. . . 00, 000 Lowest invested capital 00000 .. Prefetential rate amount -8-----------------..----, Base period percentage (percent)--8 7 Ezous-profits credit .....................$84,000.-----.----................. $ 000 $47,000
-

-00,000
...

On December 31, 1941, the X corporation and the Y corporation organized the Z corporation to which they transfer all their assets in exchange for all the Z corporation's stock plus the assumption of all their liabilities. Assuming that the adjusted basis of the assets transferred is $2,750,000, that the Z corporation also files its return on the calendar-year basis, and that no changes occurred during the year 1942, the excess profits credit of the Z corporation will be $140,000, computed as follows: 7corpwtion Equity invested capital -$1 400, 00
Borrowed capital -$1, 350,000 Second borrowed capital base -$1, 000, 000 First borrowed capital base -$100,000 Invested capital -$1, 850, 000 Lowest invested capital -$1,000,000 Preferential rate amount $500, 000 Base period percentage (percent) -7.2 Excess-profits credit :- $140,000

If instead of consolidating into the Z corporation either the X corporation or the Y corporation had acquired all the assets of the other inf exchange for stock and an assumption of liabilities, the status of the acquiring corporation after the exchange would be the same as that of the Z corporation in the above example.

taxable year. The bill provides that an election to take the amortization deduction and to begin the 60-month period for such amortization with the month following the month in which the facility was completed or acquired shall be made only by a statement to that effect in the return for the taxable year in which the facility was so completed or acquired. An election to take the amortization deduction and to begin such period with the taxable year succeeding such year shall be made only by a statement to that effect in its return for such succeeding taxable year. If, after having elected the amortization deduction, the taxpayer desires to terminate such deduction and use the deduction provided by section 23 (1) of the Internal Revenue Code with respect to the remainder of the adjusted basis of the facility, it may be permitted to do so upon notice to the Commissioner at any time prior to the termination of the 60-month period and the taxpayer shall not be entitled to any further amortization deduction with respect to such emergency facility except in the case of a new election authorized by reason of the termination of the emergency period by a proclamation of the President, or by reason of a certificate of the Secretary of War, or the

THE SECOND REVENUE BILL OF 1940 TITLE II. AMORTIZATION DEDUCTIONS Title II of the bill adds to the Internal Revenue Code a new section to be designated as section 124 and a new subsection designated section 23 (t) to authorize the allowance of a deduction for the cost of certain facilities necessary in the interest of national defense during the present emergency. Section 124 provides that a corporation shall be allowed a deduction for income and excess-profits tax purposes for the amortization of certain facilities which the Advisory Commission to the Council of National Defense and either the Secretary of War or the Secretary of the Navy certify as necessary in the interest of national defense during the present emergency. Such facilities are land, buildings, machinery and equipment or parts thereof acquired after July 10, 1940, or the construction, reconstruction, erection, or installation of which was completed after July 10, 1940. In order to be effective for the purpose of the amortization allowance, such certification must have been made before (1) the beginning of such construction, reconstruction, erection, or installation, or the date of such acquisition, or (2) the sixtieth day dfter the date of the enactment of the bill, whichever of such dates is the later. Although a facility may be an emergency facility even though its construction was begun on or before July 10, 1940, only so much of its adjusted basis as is attributable to certified construction taking place after Jul 10 1940 is subject to amortization. The remainder of the adjusted basis is subject to depreciation. Capital additions, whether or not the cost thereof is covered by a certificate, may not be added to the adjusted basis for amortization as determined under a prior certificate. If certified, a new amortization period begins relative to the cost of such capital additions. The amortization of the adjusted basis of such facilities is to be spread over a period of 60 months, the deduction to be in lieu of the present deduction for exhaustion, wear, and tear, and obsolescence provided for in section 23 (1) of the Internal Revenue Code. The 60-month period shall begin as to any emergency facility at the election of the taxpayer, with the month following the month m which the facility was completed or acquired, or with the succeeding

38

THE ECOND REVENUE BIL OF 1940

on

Secretary of the Navy that the emergency facility is no longer necessary in the interest of national defense. If the President has proclaimed the ending of the emergency, or the Secretary of War or the Secretary of the Navy has certified to the Commissioner of Internal Revenue that, on a date specified in the certificate, the facility ceased to be necessary in the interest of national defense during the emergency and the date of such proclamation or the date specified in such certificate, falls before the end of the 60-month period, the taxpayer may elect to terminate the amortization period as of the end of the month in which falls the date of the proclamation or the date specified in the certificate, whichever is the earlier, and to recompute the amortization deduction on the basis of such period in lieu of the 60-month period. The benefits of this election are accorded regardless of whether the taxpayer has in the past elected the amortization deduction with respect to the facilities involved and regardless of the fact that the taxpayer had previously elected to terminate the amortization deduction and use the depreciation deduction provided by section 23 (1), but in the latter case only if the date of the proclamation or the date specified in the certification occurs after the beginning of the month which the taxpayer had previously fixed for the taking of the deduction allowed by section 23 (1) in lieu of the amortization deduction. Subsection (h) of section 124 provides that, at the election of the taxpayer, the rnortization deduction for any month in which certain payments received from the United States with respect to such facility are uired to be included in gross income shall be the amount of such ts in lieu of the amortization deduction otherwise provided for a - _nth. The payments referred to consist only of amounts .by either the Secretary of War or the Secretary of the Nag as N nation to the taxpayer for the unamortized cost of the facilit because a contract with the United States involving the use o t ility has been terminated or because the taxpayer ha reasonds to anticipate further contracts with the United States able invol. the use of the facility and such contracts were not made. The reduction for amortization in the amount of the payment described in subsection (h) is allowable only for the month im which such payment is includible in income and shall be taken it lieu of the amortization deduction otherwise allowable in respect of such month. The deduction may not in any case exceed the adjusted basis of the emergency facility as of the end of such month, computed without regard to any amortization deduction for such month. If the taxpayer is taking depreciation rather than amortization in the month anOr such payment is includible in gross income, the depreciation deduction for such month is increased by the amount of such payment, buO the total deduction for such month shall.not exceed the adjusted basis of the emergency facility. Paragraph;.(4) of section 124 (d) provides that if, by reason of the President's proclamation, or the certificate of the Secretary of War, or the Se-ktary of the Navy, the taxpayer elects to have his amortization perodo terminated and the amortization deductions computed upon the basis of such commuted period, in lieu of the 60-month period otherwise provided, all taxes for all taxable years, beginning with the taxable year in which the amortization period bega, shall be recomputed to give effect to the revised allowance for amortization.
EL Repts. 76-3, vol. 5-70

thereto. Subsection (d) (5) provides that if an adjustment of the tax liability for any taxable year to give effect to the revised amortization deduction is prevented (1) on the date of the certificate of the Secretary of War or the Secretary of the Navy or the date of the President's proclamation, whichever is the basis of the taxpayer's election under the subsection, or (2) within 1 year from such date, by any provision of law (other than sec. 3761 of the Internal Revenue Code and other than this section) or by an rule of law including the doctrine of ret; judicata, an adjustment shall nevertheless be made if a claim for refund or credit is filed, or a notice of deficiency is mailed, as the case may be, within 1 year from such date. If, at the time of filing such claim for refund or credit or the mailing of such notice of deficiency, as the case may be, an adjustment of the tax liability would be so prevented, the amount of the adjustment in this situation is limited to the increase or decrease in the tax previously determined for such taxable year which results solely from the revision of the amortization deduction and the collateral effects of such revision. For the purpose of such recomputation, the tax previously determined for any taxable year is to be ascertained in accordance with the method prescribed in section 3801 (d) of the Internal Revenue Code. The amount of such adjustment is to be treated in the same manner as if it were a deficiency or an overpayment, as the case may be, for the taxable year. Subject to certain limitations hereinafter described, such amount may thus be assessed and collected under the law and regulations applicable to the assessment and collection of deficiencies, or may be refunded or credited under the law and regulations applicable to overpayments as the case may be. Such adjustment will bear interest and be subject to additions to the tax to the extent provided by the internal-revenue laws applicable to deficiencies and overpayments for the taxable year with respect to which the adjustment was made. The amount of such adjustment may not be diminished by any credit or set-off based upon any item, inclusion, deduction, credit exemption, or gain or loss with respect to the year as to which the adjustment was made, other than one resulting from the revision of the amortization allowance. If the Commissioner has refunded the amount of such adjustment, the amount so refunded may not subsequently be recovered in a suit for erroneous refund based upon any item, inclusion, deduction, credit, exemption, gain, or loss with respect to the year for which the adjustment is made other than one resulting from the revision of the amortization allowance. If the Commissioner has assessed and collected the amount of the adjustment, no part thereof may be recovered by the taxpayer in any suit for refund based upon any item, inclusion, deduction, credit, exemption, gain or loss with respect to the year for which the adjustment is made, other than one resulting from the revision of the amortization allowance. The amount of any such adjustment which is to be treated as an overpayment may le credited, under the applicable law and rerulations thereunder, against any income, or excess-profits, tax, or installment thereof, due froln the taxpayer. Likewise, if the

SECOND REVENUE BILL OF 1940 In any such case any deficiency or overpayment of income or excessprofits taxes for any taxable year resulting directly or indirectly from such revision shall be assessed and collected or refunded or credited, as the case may be, within the period of limitations properly applicable

40

THE

THE SECOND REVENUE BILL OF 1940

41

amount of the adjustment is to be treated as a deficiency, any overpayment by the taxpayer of income or excess-profits tax may be credited against the amount of such adjustment in accordance with the applicable law and regulations thereunder. Subsection (i) provides that an emergency facility may not be destroyed, demolished, impaired, or substantially altered without the consent in writing of the Secretary of War or the Secretary of the Navy. If such consent is not given within 90 days after consent has been requested, the Secretary of War or the Secretary of the Navy is directed to purchase such facility at a price not to exceed the adjusted basis but not to be less than $1. In the event that the facility is so purchased and if it consists of buildings or fixtures not removable without substantially affecting the structure to which they are affixed, the taxpayer is given an option, before the facility is resold, to repurchase the facility at the price which he was paid therefor. Subsection (j) provides that the special deduction for amortization of emergency facilities shall not be allowed in any case unless the taxpayer files with the Commissioner a sworn statement accepting the restrictions imposed under subsection (i). Subsection (k) imposes a penalty for the willful destruction, demolition, impairment, or substantial alteration of any emergency facility without having first obtained the written consent of the Secretary of War or the Secretary of the Navy. Such penalty is imposed in an amount equal to the unadjusted basis of the facility in the hands of the taxpayer and is to be assessed collected, and paid in the same manner as the tax imposed by the bilf

TITLE IV
SECTION 401. EARNINGS AND- PROFITS OF CORPORATIONS

The purpose of this amendment is to clarify the law with respect to what constitutes earnings and profits of a corporation. This is important not only for the purpose of determining whether distributions are taxable dividends but also in determining equity invested capital for excess-profits-tax purposes. Section 401 of the bill inserts subsection (1) in section 115 of the Internal Revenue Code and correspondingly amends prior revenue acts. The rule, applied by the Treasury under existing law, is that while gains or losses which are not recognized by reason of the provisions of section 112 neither increase nor diminish the earnings or profits, the earnings or profits are increased or diminished by tihe entire amount of the recognized gain or loss, computed in accordance with the provisions of sections 111, 112, and 113. Together with the provisions of section 115 (h) of the Internal Revenue Code, and the principles established in Commissioner v. Sanmome, 60 F. (2d) 931, and following decisions, the rule effectuates the provisions of section 112. While taxpayers generally have concurred in the rule applied by the Treasury, the Board of Tax Appeals and some of the courts have not agreed but have followed the theory that gain or loss, even though not recognize(l in computing net income, neverthles affects earnings and profits. For example, on Jan uiry 1, 1930, the X corporation owned stock in the Y corporation which it had acquired in 1929 in a transaction wherein no gain or loss was recognized. The

Certain tax-free distributions when received have uniformly been treated by the Treasury as not increasing the earnings or profits of the distributed for the period after February 28, 1913, of the distributee. Thus, distributions out of earnings or profits accumulated prior to March 1, 1913, or out of increase in value of property accrued prior to March 1, 1913, or otherwise than out of earnings or profits accumulated since 1913 or the earnings or profits of the taxable-year, have, to the extent to which they do not exceed the adjusted basis of the stock in respect of which the distribution was made, been applied in reduction of the basis of such stock, with the result that earnings or profits are increased, upon the sale of such stock, by the entire amount of the recognized gain computed upon the basis so reduced. Tax-free distributions in stock or iii rights, whether not constituting income within the meaning of the sixteenth amendment or exempt to the distributes under section 115 (f) of the Revenue Act of 1934 or a corresponding provision of a prior revenue act, and tax-free distributions of stock or securities in a corporation a party to a reorganization, have consistently been treated by the Treasury as not resulting upon receipt in an increase in earnings or profits, but as causing the basis of the stock in respect of which the distribution was made to be allocated between such stock and the stock securities received, with the result that earnings or profits are increased, upon the sale of such stock or property, by the entire amount of the recognized

THE SECOND REVENUE BILL OF 1940 adjusted basis to the X corporation of the property exchan gd by it for the stock in the Y corporation was $100. The fair market value of the stock in the Y corporation received by the X corporation was $1,000. On April 9, 1930, the X corporation declared a cash dividend of $900 and, except for the possible effect of the transaction in 1929, had no accumulated earnings or profits as of. that date. Under the interpretation of the Board and some of the courts, the excess of the fair market value of the stock of the Y corporation over the basis $900, would represent earnings or profits, and the cash distribution would be a taxable dividend (Commissioner v. F. J. Young Corporation, 103 F (2d) 137). Under the proposed legislation and Treasury practice, the $900 would not represent earnings or profits, and the cash distribution would not be a taxable dividend. The need for certainty, not only with respect to the determination of when dividends are taxable but also in the computation of the excess profits tax credit, makes it desirable to clarify existing law. Provision is made for cases in which the adjustment to the basis prescribed by section 113 is different from the adjustment to such basis proper for the purpose of determining earnings or profits. Thus, section 113 (b) (1) (B) requires adjustment for depletion, to the extent allowed (but not less than the amount allowable). Since the only depletion deductions to be considered in the computation of earnings or profits are those based on (1) the cost or other basis prescribed by section 113, if the depletable asset was acquired subsequent to February 28, 1913, or (2) the basis prescribed by section 113, or March 1, 1913, value whichever is higher, if the depletable asset was acquired prior to March 1, 1913, the adjustment to the basis in such a case is of such depletion deductions, and not "depletion, to the extent allowed (but not less than the amount allowable.)"

42

THE SECOND REVENUE BILL OF 1940

43

gain computed upon the basis so determined by allocation. In order that the confusion which occasioned the enactment of section 214 (a) of the Revenue Act of 1939,'may not reappear in the computation of earnings or profits, section 401 explicitly states the rules heretofore applied by the Treasury. It should be noted that the provisions of section 401 are applicable only in determining the earnings or profits for periods beginning after February 28, 1913. In the case of a corporation organized before March 1, 1913, its entire accumulated eating or profits as of any date after February 28, 1913, consists of its earnings or profits accumulated after February 28, 1913, its earnings or profits accumulated prior to March 1, 1913, and its increase in value of property accrued prior to March 1, 1913, which has been after February 28, 1913, realized by a sale, or has otherwise been brought into account in computing its earnings or profits accumulated after February 28, 1913. With respect to earnings or profits accumulated after February 28, 1913, section 401 does not purport to prescribe rules for anything other than certain exceptional cases, namely the nonrecognition provisions of section 112, use of value as of March 1, 1913, as the basis for determining gain or loss, and depreciation and depletion, and tax-free distributions which either are applied in reduction of the basis or cause the basis to be allocated. While prescribing rules for certain cases (which apply not only in determining earnings or profits for periods beginning alter February 28, 1913, but also, to the extent to which such earnings are a factor, in determining the entire accumulated earnings or profits of a corporation), section 401 contemplates that consistently with' these rules the computation shall be made conformably to the best accounting practice.
SUPPLEMENT B

Tax of 8hareholdder8 of personal 8ernve corporation8.-section 402 of the bill amends the Internal Revenue Code by inserting after section 373 a new supplement, designated supplement S and made up of sections 391 to 396, inclusive. Supplement S is applicable to the shareholders of a personal service corporation which has elected to be exempt from the excess-profits tax imposed under subchapter E and prescribes rules for the determination and taxation of the undistributed income of such corporations to shareholders. The undistributed net income of a personal-service corporation for a taxable year in which such corporation is exempt from the excessprofits tax is ineludible in the gross income of such of its shareholders as were shareholders on the last day of the taxable year of the corporation. The amount to be included in the gross income of the shareholders is termed the "undistributed supplement S net income" which is defined in section 392 to mean the "supplement S net income" minus the dividends paid during the taxable year. For the purpose of determining the amount of dividends paid during the taxable year, the provisions of subsections (d), (e), (f), (g), (h), and (i) of section 27 are made applicable.

44

THE SECOND REVENUE BILL OF 1940

poration. Section 396 requires a personal service corporation which is exempt from excess-profits tax to pay to the collector an amount equal to

The "supplement S net income" is the net income of the personal service corporation, as defined in section 21 of the Internal Revenue Code, *ith the following adjustments: (1) An additional deduction is allowed in the amount of the income tax under chapter 1 payable for such year; and (2) The limitation on the deduction allowed for gifts or contributions to charitable, etc., organizations is raised from 5 percent to 15 percent of the net income computed without the benefit of such deduction. Section 394 provides that each shareholder of the corporation who was a shareholder on the last day of the taxable year of the corporation shall include in his return, for the taxable year in which or with which the taxable year of the corporation ends his pro rata share of the undistributed supplement S net income of die corporation. The amount to be included is the amount the shareholder would have received as a dividend if on such last day there had been distributed by the corporation, and received by the shareholders, an amount equal to the undistributed supplement S net income of the corporation for its taxable year. For the purposes of the tax imposed by sections 11, 13, 14, 201, 204 207, or 362, each shareholder required to include in gross income his proportionate share of the income of a personal-service corporation is allowed to credit against net income his proportionate share of the interest specified in section 25 (a) (1) or (2) which is included in the gross income of the corporation. Section 25 (a) (1) and (2) relates to interest on obligations of the United States and instrumentalities of the United States. Section 394 (d) provides that the amount of the undistributed supplement S net income of a personal-service corporation which is required to be included as a dividend in the gross income of the shareholders shall for income- and excess-profits tax purposes be considered as paid-in surplus or as a contribution to the capital of the corporation. The accumulated earnings and profits of the corporation as of the close of such taxable year shall be reduced by a corresponding amount. Under section 394 (e), the amount of the undistributed supplement S net income of a personal-service corporation which is required to be included in the gross income of the shareholder shall for the purpose of adjusting the basis 6f the stock owned by him on the last day of the corporation's taxable year, be treated as havihig been reinvested by the shareholder as a contribution to the capital of the corporation. This provision is applicable only to the extent of the amount of the supplement S net income of the corration included in the shareholder's gross income subject to any adjustment to such amount which may be made in the determination of the shareholder's tax liability at any time before the expiration of 7 years after the date prescribed by law for filing a return. Section 395 includes in the taxable income of non-resident alien individuals and foreign corporations their distributive shares of the undistributed supplement S net income of a personal service cor-

45 an amount which it would have been required to withhold under section 143 (b) or 144 if the constructive dividend had been an actual dividend. Section 275 (d) of the Internal Revenue Code, as amended by section 403 of the bill, provides that in the case of failure to include in gross income the amount of supplement S net income properly includible therein the tax may be assessed or a proceeding in court for the collecting of such tax may be begun without assessment at any time within 7 years after the return was filed.
THE SECOND REVENUE BILL OF 1940