Hastie, Van Dusen and Aldisert, Circuit Judges.
VAN DUSEN, Circuit Judge.
Citizens' Acceptance Corporation ("Citizens") brought suit against the United States for a federal income tax refund. After submission of a stipulation of facts to the district court, both Citizens and the United States filed motions for summary judgment. The United States has appealed from the district court order denying its motion for summary judgment and granting that filed by Citizens. See Citizens' Acceptance Corporation v. United States, 320 F. Supp. 798 (D.Del.1971).
The transaction giving rise to Citizens' refund suit was a sale by Citizens of its instalment loan receivables to Wilmington Trust Company ("Wilmington") pursuant to a plan of liquidation conforming to the requirements of Section 337 of the Internal Revenue Code. The specific question raised by this appeal is whether Citizens was required under the tax benefit rule to include in income in the year of sale the entire $164,311. contained in its bad debt reserve maintained for these receivables, or only the $64,777. that Citizens contends was the only amount "recovered" in the sale to Wilmington. The district court agreed with Citizens that only $64,777. of the bad debt reserve was recovered and ordered that the United States issue to Citizens a tax refund of $27,583.81, plus interest. For the reasons to be stated, we reverse the judgment of the district court and remand, with directions to grant the summary judgment motion filed by the United States and deny such motion filed by Citizens.
Prior to November 1, 1963, Citizens conducted a general finance business from its home office in Delaware and from branch offices located in Delaware and Maryland. Its business consisted primarily of purchasing notes receivable and instalment obligations from retailers, of making direct loans, and of financing dealers' inventories. Citizens used an accrual method of accounting for these receivables. When a receivable was acquired. Citizens entered its full face value on its books as an asset, including both the principal amount to be repaid and the total unearned finance charges to be received over the term of the receivable. The amount of the unearned finance charges would then be credited to a liability account and as the unearned finance charges became earned (presumably through the passage of time), the amounts so earned were credited to an income account and debited against this liability account.
Citizens provided for bad debt losses with respect to these receivables by means of a reserve method of accounting. Thus, at the end of each tax year, Citizens adjusted a "reserve for bad debts" contra-asset account so that it would equal the amount of receivables which were anticipated to become worthless in future years. Any addition to the bad debt reserve found necessary would then be debited to a "bad debt expense" account and deducted from gross income for federal income tax purposes.*fn1 When a particular receivable actually became uncollectible as a bad debt, the "reserve for bad debts" account and the "unearned finance charges" account would be debited and the receivable asset account credited in appropriate amounts. Thus, the amount in Citizens' reserve for bad debts at any particular time represented the amount of bad debt losses which Citizens had deducted from gross income in the past for income tax purposes but which had not yet actually occurred.
On November 1, 1963, pursuant to a plan of complete liquidation, Citizens sold substantially all of its assets, including its receivables, to Wilmington. As consideration for these receivables, which at the time of the sale had an aggregate outstanding face value of $5,078,284., including $700,610. in unearned finance charges, Citizens received $4,648,523. from Wilmington. The contract of sale indicates that this sale price was arrived at by subtracting from the $5,078,284. aggregate outstanding face value of the receivables (1) an allowance for bad debts equal to 1.96 per cent. of this aggregate, or $99,534., and (2) an artificially determined amount of "unearned finance charges" amounting to $330,227.*fn2
The liquidation of Citizens' assets was carried out in accordance with the requirements of Section 337 of the Internal Revenue Code, which provides that when a corporation distributes all of its assets within a year, pursuant to a plan of complete liquidation, "no gain or loss shall be recognized to such corporation from the sale or exchange by it of property within such 12-month period." 26 U.S.C. § 337(a).*fn3 Thus, when Citizens filed its federal income tax return for the year ending March 31, 1964, it reported a non-recognizable gain of $270,849., equal to the difference between the amount received for the receivables ($4,648,523.) and the cost basis of the receivables without adjustment for former bad debt deductions ($4,377,674.).*fn4 However, Citizens also restored the entire amount in its reserve for bad debts account at the time of sale ($164,311.) to income and paid an income tax based upon this full amount.*fn5 At issue on this appeal is whether Citizens was required to make this full restoration under the circumstances involved.
On March 3, 1967, Citizens filed a claim for a federal income tax refund, claiming that it was not required to restore to income the $99,534. allowed for bad debts in the contract of sale with Wilmington, because this amount should have been charged against Citizens' bad debt reserve. The Internal Revenue Service disagreed and Citizens then instituted a timely action for a refund in the district court pursuant to 28 U.S.C. § 1346.
In its suit filed in the district court, Citizens abandoned its original theory and argued instead that the $99,534. in its bad debt reserve was "transferred" to Wilmington at the time of sale and was, therefore, not properly included in Citizens' income for the year, relying on the recent decision of the Supreme Court in Nash v. United States, 398 U.S. 1, 90 S. Ct. 1550, 26 L. Ed. 2d 1 (1970). In Nash the Court held that when eight partnerships transferred their assets to eight newly formed corporations in exchange for shares in the corporations -- transfers that produced no gain or loss under § 351 of the Internal Revenue Code -- there was no "recovery" of the bad debt reserves under the tax benefit rule "since the reserve for purposes of this case was deemed to be reasonable and the value of the stock received upon the transfer was equal to the net value of the receivables . . . ." 398 U.S., at 4, 90 S. Ct., at 1552 (emphasis in original). After a review of the policies underlying Sections 337 and 351 of the Code, as well as cases construing them, the district court held (1) that the principle applied in Nash to a § 351 transaction should also apply to the sale of Citizens' receivables to Wilmington pursuant to § 337, and (2) that consistent with this principle, a taxpayer should be deemed to have "recovered" the amount in a debt reserve at the time of sale only to the extent that he receives consideration in excess of the "net value" of the receivables.
The district court found that the "net value" of the receivables was equal to their adjusted face value (i. e., face value less unearned finance charges) of $4,377,674. less the bad debt reserve of $164,311., or $4,213,363. The district court also found that the consideration received by Citizens for the receivables was $4,278,140., which it calculated by subtracting the contractual allowance for possible bad debt losses of $99,534.*fn6 from the adjusted face value of $4,377,674. Applying these figures to the "recovery" formula which it deduced from the Nash opinion, the district court determined that Citizens had "recovered" only $64,777. of the $164,311. bad debt reserve. Since Citizens had paid a tax based upon an income recovery of the full amount of the bad debt reserve, the district ...