July 24, 1974.
Richard Farber (argued), Atty. for Tax Div., U.S. Dept. of Justice, Washington, D.C., for respondent-appellant.
Frederick H. Torp (argued), Davies, Biggs, Strayer, Stoel Boley, Portland, Or., for petitioner-appellee.
Appeal from the Tax Court of United States.
In this appeal from a decision of the Tax Court reported at 58 T.C. 836 the issue is whether certain contractual agreements entered into by the taxpayer with others for the use of equipment, constituted conditional sales contracts or leases.
If the transactions were bona fide leases and the taxpayer remained the owner of the equipment, then it was entitled to a deduction for depreciation, Int.Rev.Code of 1954 § 167, and an investment credit, Int.Rev.Code of 1954 § 38, both of which the taxpayer had taken. It would not have obtained those tax advantages were the agreements in question contracts of sale or conditional sales. The issue is essentially a factual one. As the Tax Court pointed out, "[t]he factual issue presented here is an extremely close one, making the decision difficult." That court resolved the contest in favor of the taxpayer, holding that the agreements were leases. Weighing the same evidence we might well have decided the case differently notwithstanding the decision in Lockhart Leasing Co. v. United States, 446 F.2d 269 (10th Cir. 1971), upon which the Tax Court so heavily relied. But our standard of review requires us to affirm unless the decision is "clearly erroneous." Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Brumley-Donaldson Co. v. Commissioner, 443 F.2d 501, 503 n.3 (9th Cir. 1971); Made Rite Investment Co. v. Commissioner, 357 F.2d 647, 648 (9th Cir. 1966); Kessmar Construction Co. v. Commissioner, 336 F.2d 865, 867 (9th Cir. 1964). We cannot find that the decision of the Tax Court is clearly erroneous.