Metro Leasing and Development Corporation, East Bay Chevrolet Company, a Corporation - Page 13




                                                - 13 -                                                  
                  The Court of Appeals for the Fifth Circuit emphasized in its                          
            rationale                                                                                   
                  that the accumulated earnings tax is a penalty tax and                                
                  thus is to be strictly construed.  Ivan Allen Co., 422                                
                  U.S. at 626, 95 S. Ct. at 2506.  Due to the special                                   
                  nature of the accumulated earnings tax and its focused                                
                  examination of earnings accumulated in a given year, it                               
                  would be inequitable and inconsistent not to allow a                                  
                  corporation to deduct taxes assessed and attributable                                 
                  for the year at issue, even though the corporation may                                
                  be contesting the taxes, as long as the corporation has                               
                  paid the taxes prior to the final computation of its                                  
                  accumulated earnings tax liability.  * * * [Rutter Rex,                               
                  supra at 1296.]                                                                       
                  We respectfully disagree with the interpretation of the                               
            Court of Appeals for the Fifth Circuit of section 1.535-2(a)(1),                            
            Income Tax Regs.  That regulation, in its amplification of the                              
            language “tax accrued during the taxable year”, is designed to                              
            permit a reduction from taxable income in arriving at accumulated                           
            taxable income for a tax liability that had accrued during the                              
            taxable year, but had not been paid (is “unpaid”).  That final                              
            caveat of the regulation simply explains that an accrued but                                
            unpaid tax liability may not be used to reduce the base for the                             
            accumulated earnings tax, if the tax is contested.  The focus of                            
            that final caveat is that no deduction is permissible where the                             
            liability is contested.  The Court of Appeals, however,                                     




                  13(...continued)                                                                      
            respondent’s computation reflects that petitioner’s payment, in                             
            the amount of $326,932, had been paid but not assessed.                                     





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