Hougland Packing Co.
v.
Comm'r of Internal Revenue

Tax Court of the United States.May 28, 1957
28 T.C. 519 (U.S.T.C. 1957)
28 T.C. 519T.C.

Docket No. 42113.

1957-05-28

HOUGLAND PACKING COMPANY, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Sol Goodman, Esq., and M. S. Cassen, Esq., for the petitioner. R. G. de Quevedo, Esq., and Lyman G. Friedman, Esq., for the respondent.


Sol Goodman, Esq., and M. S. Cassen, Esq., for the petitioner. R. G. de Quevedo, Esq., and Lyman G. Friedman, Esq., for the respondent.

Held, petitioner is not entitled to excess profits tax relief under section 722(b)(2), (b)(3), or (b)(5), I.R.C. 1939.

This proceeding involves claims for excess profits tax relief under section 722 of the 1939 Internal Revenue Code for the years ended June 30, 1942, 1943, 1944, 1945, and 1946. Petitioner's claims are based on section 722(b)(1), (b) (2), (b)(3), and (b)(5) of the 1939 Code. Also involved are deficiencies in excess profits tax determined by the respondent for the years ended June 30, 1943 and 1944, in the amounts of $27,296.58 and $5,446.94, respectively, by reason of the deferment of payments of such amounts by the petitioner under section 710(a)(5).

FINDINGS OF FACT.

Some of the facts have been stipulated and they are hereby incorporated by this reference.

Hougland Packing Company, Inc., hereinafter called the petitioner, was organized under the laws of the State of Indiana on December 24, 1932, with its office and place of business at Franklin, Indiana. Petitioner was the successor of Hougland Packing Company, a partnership formed in 1922. In 1953 the petitioner corporation was dissolved and its assets were distributed to the several stockholders. Authorized capital of the petitioner at incorporation was 1,000 shares of common stock, no par value, which was issued at a value of $100 per share to the partners of the predecessor partnership in the same proportion as their partnership interests. The shares of stock were issued as follows:

+-------------------------------------+ ¦ ¦Number of shares ¦ +------------------+------------------¦ ¦Isaac R. Hougland ¦94.2 ¦ +------------------+------------------¦ ¦Daniel M. Hougland¦234.8 ¦ +------------------+------------------¦ ¦Clyde E. Hougland ¦155.1 ¦ +------------------+------------------¦ ¦Leland W. Hougland¦155.1 ¦ +------------------+------------------¦ ¦Robert F. Hougland¦125.7 ¦ +------------------+------------------¦ ¦Frank M. Cravens ¦235.1 ¦ +------------------+------------------¦ ¦ ¦1,000.0 ¦ +-------------------------------------+

Petitioner and its predecessor were engaged in the business of canning and packing food products, principally tomatoes and sweet corn. Petitioner obtained its corn and tomatoes by contracting with farmers in petitioner's vicinity for a certain amount of acreage of corn and tomatoes grown by them. This acreage was generally contracted in the early part of the year preceding the growing season. Petitioner was committed to purchase all of the corn and tomatoes on the contracted acreage. Petitioner determined the amount of acreage to be contracted each year by taking the average of what it considered to be its normal production capacity. The area in which petitioner contracted for corn and tomatoes did not exceed a radius of 15 miles from Franklin, Indiana, where petitioner's canning plant was located. Petitioner distributed its canned goods over a geographical area within a radius of approximately 600 miles from Franklin, Indiana.

The contracted price per ton for corn and for tomatoes was the same on all contracts entered into by the petitioner each growing season. Contracts made by the petitioner each year with farmers specified a price per ton. There was one price only in petitioner's contracts for corn, which price was determined by the price of competing crops. There were two prices in the contracts for tomatoes, one price for United States Government grade No. 1's, and another price for United States Government grade No. 2's.

Separate equipment was required in the processing of corn and tomatoes by the petitioner. Petitioner's processing costs per ton for corn and tomatoes differed, with corn being more expensive to process. Petitioner's profits from its corn- and tomato-canning operations were dependent on the size of the annual crop, the price paid for the crop, cost of cans, labor, and other expenses, managerial and selling ability, the available supply, the selling prices for the product, and other factors. Some of the factors affecting the size of the annual crop of corn and tomatoes are moisture, cultivation, temperature, extent of fertilizer used, and the skill of the individual farmer. practices of petitioner's customers. Prior to this period, the predominant practice was to purchase futures, whereby purchases were made before the start of the canning season and delivery was made to the buyers after the products were packed. During the years 1930 through 1934 petitioner's customers gradually changed to the spot-buying method, under which method both the purchase and delivery of the canned products were made after the products had been packed.

Petitioner's capital stock and surplus accounts were as follows during the years indicated:

+----------------------------------------+ ¦ ¦ ¦Capital stock ¦Surplus ¦ +----+--------+---------------+----------¦ ¦Jan.¦1, 1933 ¦$100,000 ¦$29,090.25¦ +----+--------+---------------+----------¦ ¦Dec.¦31, 1933¦100,000 ¦62,698.56 ¦ +----+--------+---------------+----------¦ ¦Dec.¦31, 1934¦100,000 ¦87,023.13 ¦ +----+--------+---------------+----------¦ ¦Dec.¦31, 1935¦100,000 ¦149,725.51¦ +----+--------+---------------+----------¦ ¦Dec.¦31, 1936¦100,000 ¦101,548.04¦ +----+--------+---------------+----------¦ ¦Dec.¦31, 1937¦100,000 ¦105,013.68¦ +----+--------+---------------+----------¦ ¦Dec.¦31. 1938¦100,000 ¦103,306.32¦ +----+--------+---------------+----------¦ ¦Dec.¦31, 1939¦100,000 ¦104,667.85¦ +----------------------------------------+

Petitioner, since its organization, has kept its books and filed its Federal income and excess profits tax returns on the accrual method of accounting. Up to the end of 1939 its accounting period was the calendar year. It filed Federal income and excess profits tax returns for the 6-month period ended June 30, 1940, and as of that date changed its accounting period to a fiscal year ending June 30. Petitioner filed income and declared value excess-profits tax returns and excess profits tax returns for the period January 1, 1940, to june 30, 1940, and for the years ended June 30, 1941, 1942, 1943, 1944, 1945, and 1946, with the then collector of internal revenue for the district of Indiana at Indianapolis, Indiana.

Petitioner's balance sheets at the date of incorporation and at the end of each year from 1933 through 1239 were as shown on the following page:

+------------------------------------------------+ ¦¦ ¦December 31 ¦ ++------------+----------------------------------¦ ¦¦Jan. 1, 1933¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ++------------+----+----+----+----+----+----+----¦ ¦¦ ¦1933¦1934¦1935¦1936¦1937¦1938¦1939¦ ++------------+----+----+----+----+----+----+----¦ ¦¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +------------------------------------------------+

Assets Cash $517.81 $2,813.88 $60,258.98 $7,523.26 $18,522.93 $10,780.63 $3,831.78 $7,972.02 Accounts and notes 11,359.31 10,156.86 3,538.25 33,407.99 4,735.94 18,791.04 786.84 19,411.05 receivable Inventories 150,891.43 52,520.09 43,853.47 136,867.00 129,950.61 246,963.72 255,340.68 310,792.50 Land 10,037.50 10,037.50 10,037.50 10,037.50 10,037.50 10,037.50 10,037.50 10,037.50 Buildings 34,219.30 34,219.30 35,610.81 41,258.31 41,744.68 70,703.93 70,703.93 70,703.93 Machinery 42,754.14 42,754.14 58,908.47 64,961.87 65,778.37 75,302.98 75,302.98 75,302.98 Furniture and 879.32 879.32 879.32 879.32 909.69 932.19 932.19 932.19 fixtures Automobiles 274.22 274.22 274.22 605.72 605.72 1,205.72 1,205.72 1,205.72 Field crates 753.71 753.71 753.71 1,469.96 1,793.06 2,446.18 2,446.18 3,420.78 Cash value of life 4,813.15 4,813.15 insurance Unexpired 5,083.10 4,870.83 insurance Investments 14,850.00 Miscellaneous 118.65 Total assets $256,499.89 $174,190.82 $214,114.73 $297,010.93 $274,078.50 $437,163.89 $425,670.90 $504,649.50

Liabilities Notes payable $127,000.00 $20,000.00 $95,000.00 $70,000.00 $117,700.00 Accounts 409.64 $13,403.15 22,637.73 99,119.62 104,305.58 124,002.01 payable Accrued Federal $5,525.00 $14,283.25 13,572.48 2,847.97 654.01 258.81 income tax Reserve for 5,967.26 12,808.35 20,309.79 27,797.66 38,129.48 48,059.00 58,020.83 depreciation

Net worth Capital 100,000.00 100,000.00 100,000.00 100,000.00 100,000.00 100,000.00 100,000.00 100,000.00 stock Surplus 29,090.25 62,698.56 87,023.13 149,725.51 100,795.14 104,260.78 103,306.32 104,667.85 Total liabilities $256,499.89 $174,190.82 $214,114.73 $297,010.93 $274,078.50 $437,163.89 $425,670.90 $504,649.50 and net worth

Corn acreage contracted, tonnage purchased, total cost, cases packed, and number of cans per ton packed by petitioner and its predecessor for the years 1922 to 1939 were as follows:

+-----+ ¦¦¦¦¦¦¦ +-----+

Acreage Tonnage Cases Cans Year contracted purchased Cost packed per ton 1922 1,400 2,871 $22,971.67 79,652 665 1923 1,800 3,981 34,483.04 113,104 682 1924 2,100 3,847 38,523.78 104,254 650 1925 2,529 7,589 103,529.12 160,450 507 1926 2,474 7,423 74,756.69 167,687 542 1927 2,279 3,414 29,543.20 87,131 612 1928 2,500 4,821 48,080.00 129,672 645 1929 2,613 3,608 39,003.54 92,797 603 1930 2,800 2,198 24,333.36 40,739 444 (1 152,000 ) 1931 2,600 6,109 54,574.31 665 (2 20,000 ) 1932 1,705 5,212 36,358.24 140,375 647 1933 1,350 2,137 16,992.95 70,841 803 1934 2,500 5,250 41,399.76 (5 ) (5 ) 1935 3,000 7,185 56,901.46 (5 ) (5 ) 1936 2,800 1,988 3 38,125.47 (5 ) (5 ) 1937 3,000 7,080 69,403.41 (5 ) (5 ) 1938 2,000 2,920 29,298.10 (5 ) (5 ) 1939 2,000 4,354 34,264.71 161,253 889 Averages 1922-1939, incl 2,303 4,555 44,030.16 1923-1939, incl 2,356 4,654 45,268.89 1926-1939, incl 2,401 4,550 42,359.66 1936-1939, incl 2,450 4 4,085 4 43,272.92 FN3 $14,159.29 of field corn purchased in addition.FN4 Does not include field corn purchases.FN5 Not available.

Tomato acreage contracted, tonnage purchased, and total cost of tomatoes purchased by the petitioner and its predecessor for the years 1922 through 1939 were as follows:

+---+ ¦¦¦¦¦ +---+

Tomato Tonnage Year acreage purchased Cost contracted 1922 (1 ) (1 ) (1 ) 1923 (2 ) 1,145 $12,451.65 1924 (2 ) 2,440 29,144.27 1925 (2 ) 4,964 66,254.51 1926 447 1,927 21,778.39 1927 492 3,088 42,467.39 1928 550 3,172 35,657.09 1929 663 3,219 40,757.69 1930 810 5,186 73,828.73 1931 550 2,915 24,857.80 1932 754 2,696 19,291.55 1933 331 2,359 27,797.19 1934 700 3,397 38,383.25 1935 775 4,004 44,461.05 1936 760 3,191 39,669.32 1937 692 5,246 62,397.57 1938 750 3,431 36,657.92 1939 720 3,600 35,581.06 Averages 1923-1939, incl 3,293 38,319.79 1926-1939, incl 642 3,388 38,827.57 1936-1939, incl 730 3,867 43,576.47 None.Not available.

Petitioner was engaged in the business of canning corn and tomatoes during the years here involved. Petitioner seeks relief from excess profits tax for the years ended June 30, 1942, 1943, 1944, 1945, and 1946, under section 722(b)(1), (b)(2), (b)(3), and (b)(5). It is the argument of the petitioner that drought conditions in 1936 and an overproduction of corn and tomatoes in 1937 caused lower earnings during the base period years. To obtain relief petitioner must connect these events with its own net income for the base period years. It must show that its average base period net income is an inadequate standard of normal earnings because of one or more of the factors mentioned in the sections relied upon for relief. A. B. Frank Co., 19 T.C. 174, affd. 211 F.2d 497; Trunz, Inc., 15 T.C. 99. The causal relationship cannot be left entirely to surmise. A. B. Frank Co., supra.
Petitioner in its short brief has largely ignored these problems. Although section 722(b)(1), (b)(2), (b)(3), and (b)(5) are mentioned, there is no serious effort by the petitioner, apart from a recitation of some of the statutory language, to develop arguments under each of these sections. It appears, however, that petitioner's emphasis is on section 722(b)(1) and (b) (2), and consequently we shall first examine its claim for relief in the light of these sections.
Petitioner relies upon the alleged drought in 1936 and the overproduction of corn and tomatoes in 1937 as factors qualifying it for relief. Total precipitation, in inches, at Indianapolis, approximately 20 miles from petitioner's cannery, for the years 1936, 1937, 1938, and 1939 was 33.47, 44.15, 43.29, and 40.11, respectively. Over the longer period 1923 to 1939 the average precipitation in this area was 38.87 inches. We are not convinced that a variation of this degree in the precipitation for 1936 from the average precipitation over the longer period qualifies as an event ‘unusual and peculiar’ in the experience of the petitioner. Nor are we persuaded that the overproduction of corn and tomatoes in 1937 was such a qualifying event within the meaning of section 722(b)(1). We have difficulty determining just what petitioner is arguing, but if it is actually arguing that the overproduction of corn and tomatoes in 1937 brings it within section 722(b)(2), we still do not believe that such overproduction can be regarded as a qualifying factor. In Industrial Yarn Corporation, 16 T.C. 681, 689, where the taxpayer sought relief under section 722(b)(2) with the argument that a record cotton crop caused a temporary and unusual depression of prices, this Court said:
It is not unusual for a cotton crop to vary in size from year to year. The fortuitous circumstances that 1947 may have produced a cotton crop of extraordinary size does not, of itself, create an abnormality in petitioner's business of the character sufficient to bring petitioner within the scope of (section 722(b)(2)) * * *

Assuming that the drought condition in 1936 and the overproduction in 1937 were qualifying factors within section 722(b)(1) and (b)(2) we must still find the causal relationship, if any, between these factors and petitioner's low base period earnings. The average excess profit net income of the petitioner and its predecessor partnership over the base period was $7,197.92, while the average over the longer period, 1923 to 1939, inclusive, was $31,515. To make a true comparison of the income of the longer period with that of the base period it is essential to make adjustments to the income of the predecessor partnership in an amount which will approximate the deductions allowed to the petitioner for officers' compensation. If the income of the predecessor partnership for each of the years 1923 to 1932 is adjusted downward by $24.400, which amount represents the officers' compensation allowed to the petitioner in 1933, the average income over the 17-year period becomes $21,975.56.
We have indicated that the petitioner's average excess profits net income for the base period was slightly over $7,000. Petitioner seizes upon this low income figure for the base period, points to an alleged drought in 1936 and to the overproduction of corn and tomatoes in 1937, and without more, reaches the conclusion that it qualifies for relief. We cannot agree. Under section 722(b)(1) it is necessary to show that average base period net income is an inadequate standard of normal earnings because the alleged ‘unusual and peculiar’ events interrupted or diminished the normal operations of the petitioner during one or more of the base years, and under section 722(b)(2) it is necessary to show that the inadequacy of base period earnings as a standard was because the business of the petitioner was depressed in the base period because of temporary economic circumstances unusual in the case of the petitioner or in the case of an industry to which petitioner belonged. As this Court pointed out in Harlan Bourbon &Wine Co., 14 T.C. 97, 104, ‘A mere failure to maintain a given level of earnings does not establish a depression of earnings within the meaning of section 722.’ We have examined the record and are unable to discover any evidence to support petitioner's arguments that the alleged drought in 1936 and the overproduction in 1937 caused the low earnings during the base period.
In the first place, petitioner does not segregate anywhere, by products, the figures for sales or gross profits. There was testimony that the processing cost differed for corn and tomatoes, with corn being more expensive to process, but we are not told the nature and extent of this difference. In 1936, when the alleged drought occurred, the tomato crop purchased by petitioner from the contracted acreage was normal, while the corn purchases were substantially lower. However, without the necessary segregation of profits from each operation, it is impossible to begin to trace the effect of the low corn yield in 1936 on petitioner's profit for the base period. Also, we have examined the evidence and cannot discern any relationship between petitioner's level of production and its annual earnings. In petitioner's and its predecessor's 4 highest years, 1925, 1926, 1935, and 1937, it purchased an annual average of 11,354 tons of corn and tomatoes and showed an annual average of excess profits net income (before deduction for partners' and officers' salaries) in the amount of $58,054, while in the 4 years of lowest production, 1923, 1924, 1933, and 1936, it made average annual purchases of corn and tomatoes amounting to 5,272 tons and showed an average annual excess profits net income of $60,874. In the 4 years of its lowest excess profits net income, 1931, 1932, 1938, and 1939, petitioner showed average annual profits of $3,540, while the average purchases of corn and tomatoes were 7,809 tons, which amounted to 92 per cent of the average purchases, or production, in the 4 highest years. Also, it appears that the average sales of $333,785 during the base period are not materially different from the average sales made by petitioner and its predecessor during the 17-year period 1923 through 1939, amounting to $349,453. Indeed, the average sales during the base period were slightly higher than the average sales, amounting to $332,845, during the 6 years immediately preceding the base period years.
In connection with the overproduction of corn and tomatoes in 1937 which petitioner argues had an adverse effect on its base period earnings, there is no evidence enabling us to measure the effect of such overproduction on petitioner's operations. We recognize that a distortion in inventory carryover from year to year would have its effect on annual earnings, but here again we cannot make the necessary analysis because petitioner's inventories are a conglomeration of labels, cans, boxes, and supplies, as well as canned corn and tomato products.
It is not necessary at this time to determine why the earnings of the petitioner were lower in the base years than over the longer period. Trunz, Inc., supra. However, there are indications in the record of some of the reasons for the lower earnings of the petitioner during the base years. Although gross profits from sales in the base period remained fairly normal, operating expenses showed a marked increase over the long-term period from 1923 to 1939, and petitioner makes no claim that the increased operating expenses were due to the alleged drought conditions in 1936 or to the overproduction of corn and tomatoes in 1938. Average gross profit on sales for the base period was $122,579, and the average gross profit on sales over the long period from 1923 to 1939 was $131,463. During the 6 years preceding the base period the average gross profit from sales was $121,606. The average of of the operating expenses of the petitioner over the long period from 1923 to 1939 was $100,372, while the average of the operating expenses over the base period was $116,574. During the 6-year period preceding the base period the average operating expenses were $93,848. Some of the averages of individual items of expenses which showed marked increases in the base period years over the longer period from 1923 to 1939 were salaries and wages, from $37,061 to $47,397, taxes, from $2,159 to $4,338, insurance, from $3,470 to $4,668, and officers' and partners' compensation, from $14,583 to $20,069. Another cause which could conceivably contribute to the lower earnings during the base period is the indication of a declining profit margin in petitioner's operations. The farm prices of tomatoes and corn in Indiana during the base period were 95 per cent and 99 per cent, respectively, of the average farm prices of these same products during the period 1922 through 1939. While these farm prices were fairly constant, the average wholesale price of canned corn f.o.b. midwestern canneries during the base period was 86.24 per cent of the average wholesale price from 1922 through 1939, and the average wholesale price of canned tomatoes f.o.b. Indiana during the base period was 79.37 per cent of the average wholesale price during the long period of 1922 through 1939. It also appears that between the years 1930 and 1934 a change took place in the purchasing practices of petitioner's customers from the method of purchasing futures, in which all purchases were made prior to the canning season, to the spot-buying method whereby purchase and delivery of the canned products were made after the products had been packed. We are not given any information to gauge the effect of these changes on petitioner's operations, yet it is significant that petitioner's sales, which were $534,825 in 1934, fell to $418,836 in 1935, while the total corn and tomatoes purchased by petitioner rose from 8,647 tons in 1934 to 11,189 in 1935.
We hold that petitioner has not established its right to excess profits tax relief under section 722(b)(1) and (b)(2).
Petitioner also claims excess profits tax relief under section 722(b)(3)(a) and (b)(3)(B), under which it must be shown that ‘the business of the taxpayer was depressed in the base period by reason of conditions generally prevailing in an industry of which the taxpayer was member, subjecting such taxpayer to (A) a profits cycle differing materially in length and amplitude from the general business cycle, or (b) sporadic and intermittent periods of high production and profits, and such periods are inadequately represented in the base period.’ Petitioner has completely failed to carry its burden of proof on this portion of its claim. We are not given any industry statistics or other evidence which would enable us to determine whether or not there were conditions prevailing in such industry that caused a depression in petitioner's business. No information is supplied to us concerning profits cycles or sporadic periods of high production and profits. We hold that petitioner is not entitled to excess profits tax relief under section 722(b)(3) (A) or (b)(3)(B).
Petitioner's claim for relief under section 722(b)(5) must also be denied since it is not based on ‘any other factor’ than those which are specifically mentioned in section 722(b)(1), (b)(2), (b)(3)(A), and (b)(3)(B). Crane Co. of Minnesota, 25 T.C. 727; Gulf Coast Broadcasting Co., 24 T.C. 1094.
We conclude that petitioner has failed to establish that its average base period net income is an inadequate standard of normal earnings because of the reasons explicitly set forth in section 722(b)(1), (b)(2), (b)(3)(A), (b)(3) (B), and (b)(5), and consequently must deny petitioner's claim for excess profits tax relief under these sections.
Reviewed by the Special Division.
Decision will be entered for the respondent. 1.SEC. 722. GENERAL RELIEF— CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME.(b) TAXPAYERS USING AVERAGE EARNINGS METHOD.— The tax computed under this subchapter (without the benefit of this section) shall be considered to be excessive and discriminatory in the case of a taxpayer entitled to use the excess profits credit based on income pursuant to section 713, if its average base period net income is an inadequate standard of normal earnings because—(1) in one or more taxable years in the base period normal production, output, or operation was interrupted or diminished because of the occurrence, either immediately prior to, or during the base period, of events unusual and peculiar in the experience of such taxpayer,(2) the business of the taxpayer was depressed in the base period because of temporary economic circumstances unusual in the case of such taxpayer or because of the fact that an industry of which such taxpayer was a member was depressed by reason of temporary economic events unusual in the case of such industry,(3) the business of the taxpayer was depressed in the base period by reason of conditions generally prevailing in an industry of which the taxpayer was a member, subjecting such taxpayer to(A) a profits cycle differing materially in length and amplitude from the general business cycle, or(B) sporadic and intermittent periods of high production and profits, and such periods are inadequately represented in the base period,(5) of any other factor affecting the taxpayer's business which may reasonablybeconsidered as resulting in an inadequate standard of normal earnings during the base period and the application of this section to the taxpayer would not be inconsistent with the principles underlying the provisions of this subsection, and with the conditions and limitations enumerated therein. 2.In determining its net income for the years 1923 to 1932 the predecessor partnership deducted partners' salaries ranging from a low of $5,050 in 1923 to a high of $10,400 in 1928. These salary deductions have been eliminated prior to the adjustment of $24,400. It must also be pointed out that, in addition to partners' salaries, there were drawings by the partners which, over the period 1923 to 1932, averaged $41,918. -------- Notes:
1
No. 2's.
2
No. 303's.

A comparison of total corn and tomato tonnage purchases by the petitioner with net profit from operations, before deductions for partners' and officers' salaries, is as follows:

+--+ ¦¦¦¦ +--+

Net income (or Corn and loss) before tomato deduction for tonnage salaries of purchased partners and officers Averages 1923-1939 7,947 $47,868 1936-1939 7,952 27,291 Four highest production years: 1925, 1926, 1935, 1937 11,354 58,054 Four highest profit years: 1924, 1928, 1934, 1935 8,529 95,078 Four lowest production years: 1923, 1924, 1933, 1936 5,272 60,874 Four lowest profit years: 1931, 1932, 1938, 1939 7,809 3,540

A table showing the trend of wholesale prices for canned corn and canned tomatoes, the cost to the petitioner of purchasing corn and tomatoes at the farms, and the prices received by growers for these products, is as follows:

+---+ ¦¦¦¦¦ +---+

Per cent 1922-39 1936-39 1936-1939 average average of 1922-39 average Corn Wholesale price of canned corn per dozen No. 2's, f.o.b. midwestern canneries $0.843 $0.727 86.24 Farm value per ton—Indiana 10.85 10.32 95.12 Farm value per ton—United States 11.18 10.04 89.80 Petitioner's cost per ton 9.66 10.59 109.62 Tomatoes Wholesale price of canned tomatoes per dozen No. 2's, 0.853 0.677 79.37 f.o.b. Indiana Farm value per ton—Indiana 11.36 11.32 99.65 Farm value per ton—United States 13.19 12.56 95.23 Petitioner's cost per ton (1923-1939) 11.64 11.27 96.82

Petitioner and its predecessor partnership had sales, gross profit on sales, and net income as follows (cents omitted):

+-----+ ¦¦¦¦¦¦¦ +-----+

Excess profits net income (or loss) as defined in Excess profits sec. 711 (b), Year Sales Gross profit Net income 1 net income before on sales (or loss) as defined in deduction for sec. 711 (b) partners' and officers' salaries 1922 $135,762 $56,568 $13,256 $13,256 $17,706 1923 270,519 118,901 36,174 36,174 41,224 1924 382,823 173,044 78,579 78,579 84,179 1925 475,389 162,647 36,816 36,816 43,916 1926 361,619 143,388 42,070 42,070 49,870 1927 312,678 114,395 27,213 27,213 35,013 1928 444,991 167,964 74,781 74,781 85,181 1929 360,464 134,571 43,788 43,788 53,670 1930 220,018 84,766 3,470 3,470 12,670 1931 190,893 59,315 (16,379) (16,379) (6,879) 1932 227,358 58,959 2 (8,098) 2 (8,098) 1,402 PETITIONER CORPORATION 1933 $405,139 $121,484 $39,133 $38,989 $63,389 1934 534,825 208,872 83,598 76,640 107,340 1935 418,836 196,243 74,529 72,913 103,613 1936 399,463 147,996 24,006 24,006 54,706 1937 362,754 146,319 4,119 4,119 34,819 1938 259,726 85,980 (954) (954) 8,546 1939 313,197 110,020 1,620 1,620 10,995 1Net income figures for the predecessor partnership are after deductions for partner's salaries.2After deductions depreciation of $8,992 which was omitted by the petitioner on its return for that year

Petitioner and its predecessor partnership showed the following costs of sales (cents omitted) in their operations over the years 1922 through 1939:

+--------------------------+ ¦PREDECESSOR PARTNERSHIP ¦ +--------------------------¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +--------------------------+

Purchases

Labels, Less Year Beginning Corn Tomatoes Pumpkins Cans boxes, ending Cost of inventory supplies, inventory sales etc. 1922 $22,971 $21,670 $36,523 $1,971 $79,193 1923 $1,971 34,483 $12,451 $9,352 50,665 48,028 5,335 151,617 1924 5,335 38,523 29,144 14,374 103,623 41,524 22,746 209,779 1925 22,746 103,529 66,254 2,472 120,524 33,225 36,011 312,741 1926 36,011 74,756 21,778 3,229 109,195 22,453 49,195 218,230 1927 49,195 29,543 42,467 13,376 88,565 23,173 48,037 198,283 1928 48,037 48,080 35,657 20,273 120,542 60,635 23,227 309,999 1929 23,227 39,003 40,757 16,158 99,597 26,390 19,241 225,892 1930 19,241 24,333 73,828 2,964 75,680 19,073 79,869 135,252 1931 79,869 54,574 24,857 25 112,723 21,979 162,452 131,578 1932 162,452 36,358 19,291 88,705 12,482 150,891 168,398

PETITIONER CORPORATION 1933 $150,891 $16,992 $27,797 $4,206 $66,489 $69,797 $52,520 $283,655 1934 52,520 41,399 38,383 12,889 157,156 67,456 43,853 325,952 1935 43,853 56,901 44,461 8,608 171,966 33,669 136,867 222,592 1936 136,867 52,284 39,669 11,738 120,444 20,414 129,950 251,467 1937 129,950 69,403 62,397 67 166,897 34,682 246,963 216,435 1938 246,963 29,298 36,657 4,961 96,725 14,480 255,340 173,746 1939 255,340 34,264 35,581 15,921 147,091 25,770 310,792 203,176

The deductions shown on the following page were allowed petitioner and its predecessor by respondent for Federal income tax purposes for the years 1922 through 1939 (cents omitted):

+-----------------------+ ¦PREDECESSOR PARTNERSHIP¦ +-----------------------¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------+

1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 Deductions Labor $12,048 $33,827 $43,418 $37,179 $31,961 $34,651 $32,122 $26,586 $27,440 $18,655 Salaries and $30,137 wages Interest 330 2,797 925 1,568 1,511 1,565 1,315 915 1,734 2,804 3,766 Taxes 33 641 1,010 1,352 1,162 1,802 1,747 1,600 1,628 1,904 Repairs 3 2,117 2,238 5,543 3,333 1,886 3,560 5,683 2,392 808 Bad debts 150 714 636 Brokerage 3,899 7,193 12,051 14,903 10,928 8,012 10,938 9,041 4,680 2,678 5,059 Coal 1,563 1,703 1,539 1,597 1,159 1,649 1,605 1,521 1,606 767 551 Freight 3,310 6,405 9,293 12,533 7,438 7,030 4,362 6,326 5,942 5,929 7,595 Insurance 2,041 2,890 2,642 4,752 4,302 2,224 2,881 3,593 2,856 5,964 3,894 Light and 491 1,238 1,447 1,693 1,110 988 1,019 704 793 975 713 power Office 627 422 4,808 6,866 4,051 2,713 2,434 2,010 5,471 2,377 3,124 Seeds 592 840 2,391 Miscellaneous 1,560 3,606 2 (9) expense Discount 1,632 3,553 6,764 6,662 5,160 4,218 6,243 5,133 3,102 2,488 1,943 Auto expense 461 182 325 158 238 303 368 379 242 218 154 Fertilizer 519 Swells 24 434 321 3,069 408 203 106 348 59 65 3 Travel 338 690 581 941 977 707 335 272 368 240 398 Depreciation 9,935 14,920 12,510 13,278 12,005 13,307 12,117 11,828 10,861 10,068 1 8,992 Partners' 4,450 5,050 5,600 7,100 7,800 7,800 10,400 9,882 9,200 9,500 9,500 salaries Tomato plants 626 1,644 760 506 155 Total $43,312 $82,727 $95,920 $125,830 $101,317 $87,181 $93,182 $90,783 $81,295 $75,695 $67,057 1Depreciation not deducted on return filed by petitioner.

+-----------------------+ ¦HOUGLAND PACKING CO. ¦ +-----------------------¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------+

PETITIONER CORPORATION

1933 1934 1935 1936 1937 1938 1939 Deductions Compensation of officers $24,400 $30,700 $30,700 $30,700 $30, 700 $9,500 $9,375 Repairs 928 2,415 4,587 5,390 3,855 2,120 3,240 Interest 5,009 735 1,152 1,105 5,968 Taxes 1,587 3,383 1,503 2,754 5,155 3,382 6,063 Bad debts 95 37 1,211 114 400 169 Depreciation 5,967 6,841 7,501 7,487 10,331 9,929 9,961 Salaries and wages 19,828 48,439 56,197 45,447 58,131 39,117 46,893 Office and general expense 2,357 3,186 4,284 3,279 5,393 4,062 2,738 Auto expense and repair 127 124 123 270 430 367 607 Brokerage 7,768 11,319 10,664 8,877 8,942 6,724 6,220 Coal 663 2,260 1,682 1,504 2,010 1,201 1,580 Discount 4,839 6,886 3,489 6,065 5,004 4,023 4,314 Freight, drayage, and express 5,837 8,701 416 5,604 4,750 4,731 6,674 Insurance 1,538 2,705 67 5,945 4,267 3,954 4,507 Light and power 630 1,350 1,363 1,224 1,334 967 1,261 Allowance for swells 67 1,564 145 129 923 109 158 Tomato plants 24 106 902 1,007 Traveling expense 1,117 417 174 137 256 204 173 Adjustments (10) Seed corn 973 84 Insurance unexpired (5,083) Total $82,787 $131,058 $125,193 $125,836 $143,041 $87,679 $109,739

Salaries and drawings of the predecessor partnership for the years 1922 through 1932, and compensation paid to petitioner's officers for the years 1933 through 1939 were as follows:

+-----------------------------------------------------+ ¦ ¦Partners'¦Partners'¦Total partners'¦Compensation¦ +----+---------+---------+---------------+------------¦ ¦Year¦salaries ¦drawings ¦salaries and ¦of corporate¦ +----+---------+---------+---------------+------------¦ ¦ ¦ ¦ ¦drawings ¦officers ¦ +----+---------+---------+---------------+------------¦ ¦ ¦ ¦ ¦ ¦ ¦ +----+---------+---------+---------------+------------¦ ¦ ¦ ¦ ¦ ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1922¦$4,450.00¦$8,000.00¦$12,450.00 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1923¦5,050.00 ¦33,669.25¦38,719.25 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1924¦5,600.00 ¦72,306.14¦77,906.14 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1925¦7,100.00 ¦1,177.35 ¦8,277.35 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1926¦7,800.00 ¦34,544.72¦42,344.72 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1927¦7,800.00 ¦50,682.69¦58,482.69 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1928¦10,400.00¦65,438.25¦75,838.25 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1929¦9,882.50 ¦65,300.53¦75,183.03 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1930¦9,200.00 ¦14,236.22¦23,436.22 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1931¦9,500.00 ¦(1) ¦9,500.00 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1932¦9,500.00 ¦(1) ¦9,500.00 ¦ ¦ +----+---------+---------+---------------+------------¦ ¦1933¦ ¦ ¦ ¦$24,400 ¦ +----+---------+---------+---------------+------------¦ ¦1934¦ ¦ ¦ ¦30,700 ¦ +----+---------+---------+---------------+------------¦ ¦1935¦ ¦ ¦ ¦30,700 ¦ +----+---------+---------+---------------+------------¦ ¦1936¦ ¦ ¦ ¦30,700 ¦ +----+---------+---------+---------------+------------¦ ¦1937¦ ¦ ¦ ¦30,700 ¦ +----+---------+---------+---------------+------------¦ ¦1938¦ ¦ ¦ ¦9,500 ¦ +----+---------+---------+---------------+------------¦ ¦1939¦ ¦ ¦ ¦9,375 ¦ +----+---------+---------+---------------+------------¦ ¦ ¦ ¦ ¦ ¦ ¦ +----+---------+---------+---------------+------------¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------------------------------------+ 1None.

For the years 1934, 1935, 1936, and 1939, petitioner's board of directors authorized the following annual salaries to be paid to the officers and directors:

+-----------------------------------------------------------------------------+ ¦ ¦1934 ¦ ¦ ¦ ¦ +------------------------------------+-----------------+-------+-------+------¦ ¦Name and title ¦ ¦1935 ¦1936 ¦1939 ¦ +------------------------------------+-----------------+-------+-------+------¦ ¦ ¦Original¦Increase¦ ¦ ¦ ¦ +------------------------------------+--------+--------+-------+-------+------¦ ¦D. M. Hougland, president ¦$6,000 ¦$1,500 ¦$7,500 ¦$7,500 ¦$2,500¦ +------------------------------------+--------+--------+-------+-------+------¦ ¦I. R. Hougland, director ¦1,500 ¦500 ¦2,000 ¦2,000 ¦ ¦ +------------------------------------+--------+--------+-------+-------+------¦ ¦L. W. Hougland, director and packing¦4,100 ¦1,000 ¦5,100 ¦5,100 ¦2,500 ¦ ¦superintendent ¦ ¦ ¦ ¦ ¦ ¦ +------------------------------------+--------+--------+-------+-------+------¦ ¦F. M. Cravens, vice president ¦5,000 ¦1,500 ¦6,500 ¦6,500 ¦2,500 ¦ +------------------------------------+--------+--------+-------+-------+------¦ ¦C. E. Hougland, secretary-treasurer ¦4,800 ¦1,000 ¦5,800 ¦5,800 ¦1 ¦ ¦ ¦ ¦ ¦ ¦ ¦1,875 ¦ +------------------------------------+--------+--------+-------+-------+------¦ ¦R. F. Hougland, director and ¦ ¦3,800 ¦3,800 ¦3,800 ¦ ¦ ¦warehouse superintendent ¦ ¦ ¦ ¦ ¦ ¦ +------------------------------------+--------+--------+-------+-------+------¦ ¦ ¦$21,400 ¦$9,300 ¦$30,700¦$30,700¦$9,375¦ +-----------------------------------------------------------------------------+ 1For 9 months.

On December 6, 1938, the petitioner's board of directors decided that ‘owing to present market conditions, and business prospects the officers salaries be reduced * * * as follows':

+------------------------------------------+ ¦D. M. Hougland, president ¦$2,500¦ +-----------------------------------+------¦ ¦C. E. Hougland, secretary-treasurer¦2,500 ¦ +-----------------------------------+------¦ ¦L. W. Hougland, director ¦1,800 ¦ +-----------------------------------+------¦ ¦F. M. Cravens, vice president ¦1,500 ¦ +-----------------------------------+------¦ ¦R. F. Hougland, director ¦1,200 ¦ +-----------------------------------+------¦ ¦ ¦$9,500¦ +------------------------------------------+

The following table gives statistics on sweet corn for the State of Indiana published by the United States Department of Agriculture, showing acreage harvested, production, yield per acre, average farm price per season, and number of cases of canned corn packed for the seasons 1922 through 1939.

+-----------------------------------------------------------------------------+ ¦Year ¦Acreage ¦Production ¦Yield per ¦Farm ¦Corn packed ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦ ¦harvested ¦(tons) 1 ¦acre ¦price per ¦(in ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦ ¦ ¦ ¦(tons) ¦ton ¦thousands ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦ ¦ ¦ ¦ ¦ ¦of cases) 2 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1922 ¦13,730 ¦34,300 ¦2.50 ¦$10.00 ¦665 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1923 ¦19,670 ¦47,200 ¦2.40 ¦11.00 ¦1,208 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1924 ¦21,000 ¦35,700 ¦1.70 ¦14.74 ¦846 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1925 ¦36,990 ¦88,800 ¦2.40 ¦14.83 ¦2,223 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1926 ¦30,380 ¦88,100 ¦2.90 ¦10.18 ¦2,044 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1927 ¦17,010 ¦23,800 ¦1.40 ¦10.41 ¦703 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1928 ¦27,390 ¦38,300 ¦1.40 ¦13.00 ¦1,131 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1929 ¦38,500 ¦50,000 ¦1.30 ¦13.00 ¦1,250 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1930 ¦43,500 ¦56,600 ¦1.30 ¦13.20 ¦1,272 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1931 ¦42,000 ¦92,400 ¦2.20 ¦11.00 ¦2,362 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1932 ¦22,000 ¦50,600 ¦2.30 ¦7.20 ¦1,139 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1933 ¦26,600 ¦34,600 ¦1.30 ¦7.80 ¦838 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1934 ¦38,500 ¦50,000 ¦1.30 ¦8.30 ¦1,037 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1935 ¦49,700 ¦84,500 ¦1.70 ¦9.30 ¦2,310 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1936 ¦44,000 ¦39,600 ¦0.90 ¦9.50 ¦831 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1937 ¦51,400 ¦107,900 ¦2.10 ¦12.80 ¦2,231 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1938 ¦42,400 ¦72,100 ¦1.70 ¦10.60 ¦1,681 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1939 ¦35,000 ¦73,500 ¦2.10 ¦8.40 ¦1,852 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦Averages ¦ ¦ ¦ ¦ ¦ ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1922-1939 ¦33,321 ¦59,333 ¦1.83 ¦10.85 ¦1,423 ¦ +------------+-----------+------------+-----------+-----------+---------------¦ ¦1936-1939 ¦43,200 ¦73,275 ¦1.70 ¦10.32 ¦1,649 ¦ +-----------------------------------------------------------------------------¦ ¦Sources: United States Department of Agriculture, “Yearbooks” and ¦ ¦“Agricultural Statistics.” ¦ +-----------------------------------------------------------------------------+ 1Tonnage in husk.2Stated in cases of 24 No. 2 cans.

The following table gives statistics on tomatoes for the State of Indiana, published by the United States Department of Agriculture, showing acreage harvested for processing, production, yield per acre, average farm price for season, and number of cases of canned tomatoes and tomato juice packed in the years 1922 through 1939:

+-----------------------------------------------------------------------------+ ¦ ¦ ¦ ¦ ¦ ¦Tomatoes ¦Tomato ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦ ¦ ¦Production¦Yield¦Price ¦canned ¦juice 4 ¦ ¦ ¦ ¦ ¦per ¦per ¦1 ¦(in ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦Season ¦Acreage¦(tons) ¦acre ¦ton ¦(in ¦thousands¦ ¦ ¦ ¦ ¦ ¦ ¦thousands¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦ ¦ ¦ ¦ ¦ ¦of ¦of cases)¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦ ¦ ¦ ¦ ¦ ¦cases) ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦ ¦(1) ¦(2) ¦(3) ¦(4) ¦(5) ¦(6) ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1922 ¦53,240 ¦308,800 ¦5.8 ¦$10.48¦2 1,939¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1923 ¦54,000 ¦156,600 ¦2.9 ¦10.31 ¦2 1,224¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1924 ¦59,000 ¦200,600 ¦3.4 ¦12.41 ¦1,792 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1925 ¦72,000 ¦324,000 ¦4.5 ¦12.79 ¦3,337 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1926 ¦49,990 ¦175,000 ¦3.5 ¦12.60 ¦1,536 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1927 ¦42,990 ¦163.400 ¦3.8 ¦13.06 ¦1,931 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1928 ¦49,870 ¦149,600 ¦3.0 ¦12.90 ¦1,046 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1929 ¦59,840 ¦251,300 ¦4.2 ¦13.20 ¦1,936 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1930 ¦79,000 ¦395,000 ¦5.0 ¦13.30 ¦3,463 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1931 ¦64,000 ¦192,000 ¦3.0 ¦10.00 ¦2,034 ¦(5) ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1932 ¦62,000 ¦248,000 ¦4.0 ¦8.10 ¦3 2,750¦(5) ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1933 ¦53,000 ¦212,000 ¦4.0 ¦9.60 ¦2,876 ¦1,138 ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1934 ¦83,000 ¦315,400 ¦3.8 ¦9.80 ¦3,487 ¦1,664 ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1935 ¦97,300 ¦321,100 ¦3.3 ¦10.60 ¦3,587 ¦2,281 ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1936 ¦92,000 ¦358,800 ¦3.9 ¦11.60 ¦3,010 ¦2,867 ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1937 ¦80,700 ¦427,700 ¦5.3 ¦12.60 ¦3,642 ¦2,947 ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1938 ¦71,200 ¦299,900 ¦4.2 ¦11.20 ¦3,037 ¦(5) ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1939 ¦72,300 ¦361,500 ¦5.0 ¦9.90 ¦3,376 ¦(5) ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦Averages ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1922-1939 ¦66,413 ¦270,038 ¦4.1 ¦11.36 ¦2,556 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦1936-1939 ¦79,050 ¦361,975 ¦4.7 ¦11.32 ¦3,266 ¦ ¦ +-------------------------+-------+----------+-----+------+---------+---------¦ ¦Source : United States ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Department of ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Agriculture, “Yearbooks” ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦and “Agricultural ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Statistics.” ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------------------------------------------------------------+ 1Stated in cases of 24 No. 2 cans; calendar year.2Estimated from data in terms of cases of 24 No. 3 cans as follows: 1922, 1,312,000 cases; and 1923, 717,000 cases.FN3 Data for 1932 not available. Department of Agriculture estimates 1932 Indiana pack as between 2,500,000 and 3,000,000 cases of 24 No. 2 cans. Figure used is the average of these figures.FN4 Actual cases.FN5 Data not available by States.

Franklin, Indiana, the site of petitioner's cannery, is located approximately 20 miles south of Indianapolis, indiana. Total precipitation at Indianapolis for the years 1922 through 1929, was as follows:

+------------------------------------------------------------------------+ ¦Year¦Jan.¦Feb.¦Mar.¦Apr.¦May ¦June¦July¦Aug.¦Sept.¦Oct.¦Nov.¦Dec.¦Annual¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1922¦1.26¦1.46¦7.16¦8.55¦2.58¦0.99¦2.67¦2.45¦1.52 ¦1.78¦2.32¦4.45¦37.19 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1923¦2.73¦1.70¦4.41¦1.94¦5.86¦2.30¦2.43¦4.83¦3.91 ¦3.29¦2.04¦5.60¦41.04 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1924¦3.13¦1.44¦4.72¦3.28¦4.47¦4.04¦1.75¦4.77¦2.80 ¦0.79¦1.75¦5.53¦38.47 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1925¦0.49¦1.64¦2.87¦1.98¦0.94¦4.70¦4.67¦3.82¦5.96 ¦4.16¦5.13¦1.09¦37.45 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1926¦2.72¦2.75¦3.12¦3.91¦3.59¦1.28¦3.78¦4.97¦9.33 ¦2.68¦1.67¦1.95¦41.75 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1927¦3.15¦2.36¦6.32¦5.16¦5.62¦1.24¦3.48¦2.64¦2.70 ¦2.01¦4.69¦2.99¦42.36 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1928¦1.74¦3.44¦2.44¦2.76¦3.04¦8.77¦3.07¦3.81¦0.92 ¦2.93¦3.66¦2.19¦38.77 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1929¦4.74¦1.47¦3.24¦4.28¦8.46¦5.36¦5.44¦2.49¦2.03 ¦3.66¦2.15¦4.14¦47.46 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1930¦7.34¦2.76¦1.80¦4.05¦1.69¦1.55¦0.90¦2.08¦2.86 ¦1.77¦2.06¦0.80¦29.66 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1931¦0.54¦1.76¦2.32¦3.58¦2.51¦2.20¦2.95¦4.70¦3.66 ¦3.75¦3.38¦4.41¦35.76 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1932¦6.10¦1.47¦1.96¦2.77¦0.60¦5.94¦2.86¦3.17¦7.18 ¦3.25¦2.69¦4.70¦42.69 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1933¦2.02¦1.90¦6.20¦4.16¦7.10¦2.50¦5.85¦1.97¦5.27 ¦1.28¦1.16¦2.17¦41.58 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1934¦1.25¦0.86¦3.32¦2.23¦0.60¦2.98¦2.50¦2.49¦4.54 ¦0.19¦2.14¦1.87¦24.97 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1935¦2.33¦0.20¦3.49¦1.54¦6.97¦4.66¦3.16¦4.99¦3.98 ¦1.01¦3.56¦1.84¦37.73 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1936¦1.32¦3.21¦2.13¦3.89¦1.48¦2.91¦0.67¦2.49¦4.30 ¦3.29¦4.58¦3.20¦33.47 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1937¦8.05¦1.68¦1.47¦4.27¦1.58¦3.69¦5.37¦3.46¦3.28 ¦5.59¦1.94¦3.77¦44.15 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1938¦1.00¦2.52¦7.93¦3.24¦5.14¦6.49¦7.15¦2.53¦1.74 ¦1.06¦3.03¦1.46¦43.29 ¦ +----+----+----+----+----+----+----+----+----+-----+----+----+----+------¦ ¦1939¦5.33¦2.97¦3.03¦5.74¦0.88¦5.67¦7.20¦2.91¦1.17 ¦2.93¦1.15¦1.13¦40.11 ¦ +------------------------------------------------------------------------+

Petitioner is entitled to compute its excess profits credit in accordance with the provisions of either section 713 or section 714 of the 1939 Internal Revenue Code and to use whichever amount results in the lesser excess profits tax, as provided by section 712(a). The method which results in the lesser excess profits tax for each of the taxable years ended June 30, 1941 through 1946, is the invested capital method described in section 714. Petitioner's excess profits credit computed under the invested capital method is as follows:

+--------------------------------------------------+ ¦ ¦Excess profits credit under ¦ +--------------------+-----------------------------¦ ¦Year ended June 30 ¦the invested capital method ¦ +--------------------+-----------------------------¦ ¦1940 1 ¦$20,948.10 ¦ +--------------------+-----------------------------¦ ¦1941 ¦17,602.91 ¦ +--------------------+-----------------------------¦ ¦1942 ¦18,371.61 ¦ +--------------------+-----------------------------¦ ¦1943 ¦19,257.88 ¦ +--------------------+-----------------------------¦ ¦1944 ¦24,436.97 ¦ +--------------------+-----------------------------¦ ¦1945 ¦27,565.29 ¦ +--------------------+-----------------------------¦ ¦1946 ¦28,415.84 ¦ +--------------------+-----------------------------¦ ¦ ¦ ¦ +--------------------------------------------------+ 1Six months.

Petitioner's excess profits net income for each of the taxable years ended June 30, 1940 through 1946, is as follows:

+-------------------------------------------------------+ ¦ ¦Excess profits net income ¦ +--------------------+----------------------------------¦ ¦ ¦Income credit ¦Invested capital ¦ +--------------------+---------------+------------------¦ ¦Year ended June 30 ¦method ¦method ¦ +--------------------+---------------+------------------¦ ¦1940 1 ¦2 $286.84 ¦2 $1,035.62 ¦ +--------------------+---------------+------------------¦ ¦1941 ¦19,231.40 ¦19,975.30 ¦ +--------------------+---------------+------------------¦ ¦1942 ¦65,159.62 ¦65,566.84 ¦ +--------------------+---------------+------------------¦ ¦1943 ¦124,772.75 ¦125,017.39 ¦ +--------------------+---------------+------------------¦ ¦1944 ¦65,055.35 ¦65,917.35 ¦ +--------------------+---------------+------------------¦ ¦1945 ¦36,989.58 ¦38,704.73 ¦ +--------------------+---------------+------------------¦ ¦1946 ¦50,569.30 ¦51,945.49 ¦ +--------------------+---------------+------------------¦ ¦ ¦ ¦ ¦ +-------------------------------------------------------+ 1Six months.2Under laws applicable to fiscal years ended June 30, 1941 and 1942,for purposes of unused excess profits credit carryover.

Petitioner's excess profits tax liability as finally determined by respondent without benefit of section 722, the amount deferred by reason of section 710(a) (5) of the 1939 Internal Revenue Code, the amount of credit allowed under section 784, and the excess profits tax previously assessed for each of the taxable years ended June 30, 1940 to 1946, inclusive, are as follows:

+----------------------------------------------------------------------+ ¦ ¦Excess profits¦ ¦ ¦ ¦ +----------+--------------+----------------+------------+--------------¦ ¦ ¦tax finally ¦ ¦ ¦ ¦ +----------+--------------+----------------+------------+--------------¦ ¦Year ended¦determined ¦Amount ¦ ¦ ¦ +----------+--------------+----------------+------------+--------------¦ ¦June 30 ¦without ¦deferred ¦10 per cent ¦Excess profits¦ +----------+--------------+----------------+------------+--------------¦ ¦ ¦benefit of ¦under ¦credit under¦tax previously¦ +----------+--------------+----------------+------------+--------------¦ ¦ ¦sec. 722 ¦sec. 710 (a) (5)¦sec. 784 ¦assessed ¦ +----------+--------------+----------------+------------+--------------¦ ¦1940 1 ¦2 None ¦None ¦None ¦None ¦ +----------+--------------+----------------+------------+--------------¦ ¦1941 ¦2 None ¦None ¦None ¦None ¦ +----------+--------------+----------------+------------+--------------¦ ¦1942 ¦$13,074.57 ¦None ¦None ¦$13,074.57 ¦ +----------+--------------+----------------+------------+--------------¦ ¦1943 ¦90,683.56 ¦$27,296.58 ¦None ¦63,386.98 ¦ +----------+--------------+----------------+------------+--------------¦ ¦1944 ¦31,377.35 ¦5,446.94 ¦None ¦25,930.41 ¦ +----------+--------------+----------------+------------+--------------¦ ¦1945 ¦1,082.47 ¦ ¦$108.25 ¦974.22 ¦ +----------+--------------+----------------+------------+--------------¦ ¦1946 ¦6,479.40 ¦ ¦647.94 ¦5,831.46 ¦ +----------------------------------------------------------------------+ 1Six months.2After benefit of unused excess profits credit carryover from the period ended June 30, 1940, in the amount of $9,381.19, applied $2,372.39 to the year ended June 30, 1941, and $7,008.80 to the year ended June 30, 1942

Petitioner filed timely claims for relief under section 722 of the 1939 Internal Revenue Code for the taxable years ended June 30, 1942, 1943, 1944, 1945, 1946. Respondent, by statutory notice dated April 11, 1952, notified petitioner that the claims were disallowed in full and that there were deficiencies in excess profits tax resulting from petitioner's deferment of a part of its excess profits tax under section 710 (z)(5) of the 1939 Internal Revenue Code for the taxable years ended June 30, 1943 and 1944.

OPINION.

MULRONEY, Judge: