Metro Leasing and Development Corporation, East Bay Chevrolet Company, a Corporation - Page 30




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            III.  Validity of Sec. 1.535-2(a)(1), Income Tax Regs.                                      
                  The final sentence of section 1.535-2(a)(1), Income Tax                               
            Regs., reads:  “In computing the amount of taxes accrued, an                                
            unpaid tax which is being contested is not considered accrued                               
            until the contest is resolved.”  That sentence leaves little                                
            doubt that the Secretary of the Treasury intended the test of a                             
            section 535(b)(1) tax accrual to be the all events test.  See                               
            Doug-Long, Inc. v. Commissioner, 73 T.C. at 81 (“The last                                   
            sentence of this regulation is consistent with the definition of                            
            accrued taxes which has been set forth in Dixie Pine Products Co.                           
            v. Commissioner, supra; Great Island Holding Corp. v.                                       
            Commissioner, * * * [5 T.C. 150, 160 (1945)]; and sec. 1.461-                               
            2(b)(2), Income Tax Regs.”).  The only question is whether that                             
            is a valid interpretation of the statutory command of section                               
            535(b)(1) that, in computing accumulated taxable income, taxable                            
            income be adjusted by subtracting certain taxes “accrued” during                            
            the taxable year.  In Doug-Long, Inc. v. Commissioner, supra at                             
            82, we held that the last sentence of section 1.535-2(a)(1),                                
            Income Tax Regs., validly interprets the statute.  In J.H. Rutter                           
            Rex Manufacturing Co. v. Commissioner, supra at 1296, the Court                             
            of Appeals for the Fifth Circuit made a cogent argument that the                            
            accumulated earnings tax, a penalty tax, should not be based on                             
            earnings “that may not exist at all depending on the deficiency                             
            claimed.”  Taken to its logical conclusion, the Court of Appeals’                           







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