Affiliated Foods, Inc., A Corporation - Page 40




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         to:  “deduct from gross income amounts periodically returned to              
         members as a refund of profits on business transacted with them,             
         and proportioned to the amount of such business.”  Id. (emphasis             
         added).  In United Coops., Inc. v. Commissioner, 4 T.C. 93, 107-             
         108 (1944), we held that an agricultural cooperative was entitled            
         to exclude from gross income as a patronage dividend the excess              
         of its net income available for distribution to its patrons (and             
         to which they had a right) over the amount of that income that               
         the cooperative had discretion to pay as dividends on its common             
         stock.  We said:                                                             
              These dividends, if paid, would be paid out of net                      
              income.  If dividends were not paid, then the net                       
              income of petitioner available for distribution to its                  
              patrons would be accordingly greater.  The choice of                    
              whether so much of its net income as equaled 8 percent                  
              of the par value of its common stock should be                          
              distributed to its stockholders as a dividend or to its                 
              patrons as rebates was in the corporation.  * * *  [Id.                 
              at 108; emphasis added.]                                                
         It hardly seems disputable that, whether by administrative or                
         judicial decision, or by act of Congress, the allowance of a                 
         deduction for patronage dividends was intended not to confirm                
         that a trade discount is a proper adjustment to the price                    
         reported on a particular sale of a good or service to a patron               
         (whether a shareholder or not) but was intended to allow a                   
         deduction for a patronage-based return made from the excess                  
         proceeds from many sales, to many patrons (i.e., from net                    
         earnings), over the course of time.                                          







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