The opinion of the court was delivered by: GOURLEY
In this non-jury proceeding in which the taxpayer seeks the recovery of certain of his 1954 income taxes allegedly erroneously assessed and collected by the District Director, the United States has filed a counterclaim which poses the focal legal questions for this court's determination.
1. May the Commissioner of Internal Revenue disallow on audit a deduction for bond premium amortization as to bonds purchased in 1954 where express statutory authority exists for such deduction under 26 U.S.C.A. § 171 based upon the thesis that the taxpayer has received a deduction on said bonds under the charitable contribution provisions of the Internal Revenue Act.
2. In the event that it is concluded that the Commissioner's disallowance of the bond premium amortization deduction was improper, should the allowable bond premium be computed based on the general or special call prices?
For purposes of simplification I shall allude throughout this opinion, in the singular, to the taxpayer, T. M. Evans, in view of the fact that all transactions were admittedly conducted by him, although the complaint is brought by T. M. Evans and his wife, Josephine S. Evans, since the income tax return upon which suit is predicated was filed as a joint husband-wife return.
In view of the uncontested testimony as to the values of the securities deductible as a charitable contribution and stipulated agreement rendered during trial between the taxpayer and the government, as to the casualty loss experienced, the court entered final orders on these issues and accordingly they require no further consideration.
I shall, therefore, direct myself entirely to the issues raised by the governments' counterclaim as to the correctness of the bond premium amortization deduction.
On October 15, 1954, taxpayer bought $ 1,300,000 face amount of public utility bonds at a premium. On October 18, 1954, he bought an additional $ 700,000 face amount of similar bonds, all bonds were issued prior to January 22, 1951. The total cost to the taxpayer of the bonds so purchased, including commissions and other charges was $ 2,227,930.96. Being public utility bonds they were so called callable bonds, being subject to redemption at any time upon thirty days' notice at a lower price than the purchase price known as the call price. The premium paid on acquiring the bonds, i.e., the amount paid for the bonds in excess of their call prices, was $ 182,420.
All of these public utility bonds were purchased through the First Boston Corporation, a national brokerage house having an office in Pittsburgh, Pennsylvania. The taxpayer had previously dealt with them to a substantial extent in connection with his extensive market operations. In order to pay for the public utility bonds the taxpayer advanced $ 118,000 of his own money and borrowed $ 2,109,930.96 from Mellon National Bank and Trust Company.
The taxpayer on November 19, 1954, donated $ 1,250,000 face amount of these bonds, $ 700,000 to Yale University and $ 550,000 to the T. M. Evans Foundation. (Substantial gifts to both of these charities were made by taxpayer both prior to and subsequent to the above transactions.) In March and May of 1955, taxpayer donated the remaining $ 750,000 of these bonds to the T. M. Evans Foundation.
Under the terms of his deeds of gift of the bonds, Yale University and the T. M. Evans Foundation, respectively, at the time of the gifts accepted the bonds and agreed to assume and pay the outstanding indebtedness relating to the bonds which the taxpayer had incurred in purchasing them.
Taxpayer, in his federal income tax return for the year 1954 took a deduction under 26 U.S.C.A. § 171 of the Internal Revenue Code of 1954, in the amount of.$ 170,500 by way of amortization of the premium paid on the acquisition of the bonds. The amount was calculated as being the difference between the prices paid and the call prices at the earliest call dates. In addition taxpayer claimed a deduction for the charitable contribution of his equity in the face amount of the bonds.
In short, taxpayer was able to secure what amounted to a double deduction under the Revenue Law, first by invoking the amortization provision of the Act, and second by taking a deduction under the charitable contribution provisions of the Act.
The government contends that the taxpayer should not be entitled to bond premium amortization under 26 U.S.C.A. § 171 where he secures the equivalent of the benefit as a charitable contribution. The government categorically admits that the taxpayer had he not made a charitable contribution of the bonds, would have been entitled to obtain the bond premium amortization. Thus, had the taxpayer contributed to the charitable ...