Thomas P. and Ermina A. Krukowski - Page 49




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          affiliated group) was required to compute “accumulated taxable                
          income” (for purposes of the accumulated earnings tax, section                
          531) on a consolidated basis as the Commissioner contended, or on             
          a separate-company basis as the taxpayer contended.  Under one                
          set of proposed regulations, certain taxpayers (including the                 
          taxpayer in Gottesman & Co.) would have computed accumulated                  
          taxable income on a separate company basis.  Those proposed                   
          regulations were withdrawn prior to the years in issue in                     
          Gottesman & Co.; proposed regulations reaching the opposite                   
          result were promulgated after those years.  In holding for the                
          taxpayer, we concluded, against this background, that the                     
          Commissioner’s silence during the years in issue had failed to                
          provide sufficient guidance to the taxpayer:                                  
               Though the 1968 proposed regulations were withdrawn in                   
               1971, before the years involved in this case, we can                     
               readily understand petitioner’s confusion as to                          
               respondent’s true position * * *. * * *                                  
                    We cannot fault petitioner for not knowing what                     
               the law was in this area when the Commissioner, charged                  
               by Congress to announce the law (sec. 1502), never                       
               decided what it was himself. * * *                                       
                    Thus, we find that the Commissioner’s regulations                   
               regarding the manner in which the accumulated earnings                   
               tax was to be imposed on corporations making                             
               consolidated returns were ambiguous during the years at                  
               issue.  This ambiguity was of the Commissioner’s                         
               making, and, as such, must be held against him.  * * *                   
               We think that under these circumstances the failure of                   
               petitioner to comply with respondent’s post hoc view of                  
               the regulations is an insufficient ground on which to                    
               impose the accumulated earnings tax, and we hold for                     
               petitioner on the issues herein presented.4                              
                                                                                       





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