
    359 F. 2d 437
    JOHN WANAMAKER PHILADLEPHIA, INC. v. THE UNITED STATES JOHN WANAMAKER PHILADELPHIA, INC. (SUCCESSOR BY MERGER TO JOHN WANAMAKER NEW YORK, INC.) v. THE UNITED STATES
    No. 305-61
    No. 70-63
    [Decided April 15, 1966.
    Defendant’s motion for rehearing and reconsideration denied July 15, 1966]
    
      
      N. Barr Miller for plaintiffs; J. Marvin Haynes, attorney of record. Haynes c& Miller, and Arthur H. Adams, of counsel.
    
      Sheldon P. Migdal, with whom was Acting Assistant Attorney General Richard M. Roberts, for defendant. 0. Moxley Featherston, Lyle M. Turner, and Philip B. Miller, of counsel.
    Before Cowen, Ohief Judge, Peed, Justice (Pet.), sitting by designation, Laramoee, Davis, and Collins, Judges.
    
   Laramore, Judge,

delivered the opinion of the court:

John Wanamaker Philadelphia, Inc., is a Pennsylvania corporation which operates retail department stores. At the time of the events in issue, it operated a store in Philadelphia, Pennsylvania, and a wholly-owned subsidiary, John Wanamaker New York, Inc., operated a store in New York City. In 1956, the New York subsidiary was merged into the parent company. Two petitions stating substantially identical facts and raising common questions of law have been filed and consolidated. In the interest of simplicity, we shall refer to one plaintiff only and limit discussion to the facts of the Philadelphia store.

As a department store, plaintiff used an accrual method of accounting and a fiscal year ending January 31 for Federal income tax purposes. For the fiscal year ending January 31, 1951, plaintiff elected to value its inventory by the Last In— First Out (lieo) method. Int. Rev. Code of 1939, § 22(d) ; 26 U.S.C. § 22(d) (1952 Ed.). As a condition of a lieo election, the statute required that the opening inventory of the election year and the closing inventory of the preceding year be valued at cost. §§ 22(d) (1) (A), 22(d) (4). Thisre-quired an adjustment to the fiscal 1950 closing inventory because plaintiff had for many years valued its inventories by the retail method, lower of cost or market, less a reserve for future markdowns. To get the closing inventory of fiscal 1950 up to cost, plaintiff had to increase inventory value by the amount that cost exceeded lower of cost or market, and in addition, plaintiff had to eliminate the reserve for future markdowns. This had the effect of reducing cost of goods sold and thereby increasing taxable income because the Commissioner of Internal Revenue would not allow plaintiff to similarly adjust the opening inventory.

Plaintiff claims a refund of the tax paid for the fiscal year 1950 on the amount of taxable income occasioned by the elimination of the reserve for future markdowns. Both of its arguments are predicated on section 22(d) (3) which provides that a change to lieo shall accord “with such regulations as the Commissioner * * * may prescribe as necessary in order that the use of such method may clearly reflect income.” (Emphasis added.) Plaintiff asserts that “clear reflection of income” is the governing standard we must apply in reviewing the determination of the Commissioner of Internal Bevenue. The first argument is that the reserve for future markdowns is illegal under sections 29.22 (c)-2 and (c)-8 of Treasury Begulations 111, and therefore must be eliminated from the opening inventory of fiscal 1950, as well as the closing inventory, to clearly reflect income. If the reserve is eliminated from fiscal 1950 altogether, plaintiff is entitled to a refund. The second argument is that the reserve was included in taxable income and exposed to tax in the fiscal years 1916 through 1920 as a result of a decision by the Board of Tax Appeals. Plaintiff says it violates the clear reflection of income standard to expose an item to double taxation.

In opposition, defendant contends that the plaintiff had no right to change to lieo without first obtaining the Commissioner’s consent, and that the ’Commissioner properly made no adjustment to the opening inventory. Begarding plaintiff’s double taxation argument, defendant contends that there is no double tax effect because the reserve in dispute before the Board of Tax Appeals was not the same as the one that is deducted from fiscal 1950 opening inventory.

I. Plaintiff's LIFO Election

Plaintiff must establish that it had an absolute right to elect lieo to circumvent defendant’s argument that the Commissioner can exact a quid pro quo for a change to ufo. As a general rule, taxpayers cannot unilaterally change from one accounting method to another. Int. Bev. Code of 1939, § 41. The Code gives the Commissioner broad discretion to initiate changes, and, by implication, to police taxpayer-initiated changes. In his regulations, the Commissioner has amplified the statutory rule by providing that a taxpayer cannot change to a new method without permission, and that “[permission * * * will not be granted unless the taxpayer and the Commissioner agree to the terms and conditions under which the change will be effected.” Treas. Reg. 111, § 29.41-2. The standard by which the Commissioner’s discretion is guided is “clear reflection of income.” Defendant refers us to a number of cases which uphold this regulation and allow the Commissioner to exact a quid fro quo. American Can Co. v. Commissioner, 317 F. 2d 604 (2d Cir. 1963), cert. denied, 375 U.S. 993 (1964); Wright Contracting Co. v. Commissioner, 316 F. 2d 249 (5th Cir. 1963); Broida, Stone & Thomas, Inc. v. United States, 309 F. 2d 486 (4th Cir. 1962); Commissioner v. O. Liquidating Corp., 292 F. 2d 225 (3d Cir.), cert. denied, 368 U.S. 898 (1961). To this list we can add our recently decided case, Hackensack Water Co. v. United States, 173 Ct. Cl. 606, 352 F. 2d 807 (1965).

The courts have enforced the Commissioner’s permission requirement to enable him to protect the fisc most effectively. Any change of accounting method will almost certainly distort net income in the year of change. Although distortion can work either for or against the government, it is a fair assumption that most taxpayer-initiated changes will distort income in the taxpayer’s favor, absent some mechanism of control. As a matter of policy, the courts have decided that this area of the revenue laws can be best administered by the Commissioner. The mechanism the Commissioner has adopted is the consent requirement. Thus, he can prevent distortion by withholding his consent until the taxpayer agrees to adjustments that will “prevent the duplication of items of expense or the omission of income with respect to the year of transition * * Hackensack Water Co., 173 Ct. Cl., at 613, 352 F. 2d, at 810. This rule is now codified in section 446(e) of the Internal Revenue Code of 1954.

We are of the opinion that plaintiff was not subject to the requirement of first obtaining the Commissioner’s consent with whatever conditions he might impose. We find in Code section 22 (d) (1) an absolute right to elect the llfo method of accounting. The provision states that “[a] taxpayer may use [llfo].” (Emphasis added.) Throughout the applicable regulations, mo is referred to as an “elective method.” Section 29.22(d)-! provides: “This elective inventory meth-ocl * * * may be adopted by the taxpayer as of the close of any taxable year.” Section 29.22(d)-2 requires that the taxpayer must satisfy certain objective conditions precedent. Section 29.22 (d) -3 specifies the proper form number for election which is different from the form number used for requesting consent. In addition, this provision empowers the Commissioner to condition approval upon the taxpayer’s agreement to use lieo with respect to goods “other than those specified in the taxpayer’s statement of election.” That is, of course, a comparatively narrow discretion and far short of the broad power to enforce a condition found in section 29.41-2.

The difficulty arises in the last paragraph of section 29.22 (d)-3 and under section 29.22(d)-4, which give the Commissioner power to determine whether to approve an election. The latter provides that a taxpayer may not elect “unless, at the time he files his application for the adoption of such method, he agrees to such adjustments incident to the change to * * * such method * * * in the inventories of prior taxable years or otherwise, as the Commissioner * * * may deem necessary in order that the true income of the taxpayer will be clearly reflected for the years involved.” This may look like a broad discretion. It is quite different from the discretion under section 29.41-2, however, because it is expressly limited to one aspect of the election and is governed by a standard, the application of which we can review. It is true that section 29.41-2 is also governed by the clear reflection of income standard, but we feel that the conditions the Commissioner can exact under the notion of “consent” or “permission” there show a much broader discretion and a correspondingly narrower scope of review.

In its brief and oral argument defendant relied entirely on Regulations section 29.41-2. Section 29.41-2 seems to include everything but a llfo election. The last sentence of the third paragraph instructs us to refer to “ [Code] section 22 (d) and regulations thereunder with respect to changing to [the] optional method of inventorying goods.” There is other evidence that lito elections are outside section 29.41-2. Thus, in defining a change in an accounting method, the third paragraph refers to “a change involving the basis of valuation employed in the computation of inventories,” and in a parenthetical immediately after, cites all of the inventory regulations except those relating to lifo. It is interesting to note that this scheme has been preserved in the 1954 Code. In codifying section 29.41-2 of the Regulations under the 1939 Code into section 446 (e) of the 1954 Code, Congress inserted the phrase “[e]xcept as otherwise expressly provided in this chapter” to qualify the general rule that taxpayers must secure consent before changing an accounting method. Section 472 of the 1954 Code is the lifo provision, and as the codification of the old section 22(d) of the 1939 Code, it is elective, subject to regulations “as the Secretary or his delegate may prescribe as necessary in order that the use of such method may clearly reflect income.” The regulations under section 472 are almost identical to those in Treasury Regulations 111.

II. The Olear Reflection of Income Standard

The consequence of our concluding that plaintiff was free to elect lifo in its fiscal year 1951 is that we must review the determination by the Commissioner of Internal Revenue preventing plaintiff from adjusting the opening inventory of 1950. In this task, we are directed generally by section 22(d) (3) of the 1939 Code and specifically by section 29.22 (d)-4 of the Regulations to test “adjustments * * * in the inventories of prior taxable years * * * [by a standard that will assure] that the true income of the taxpayer will be clearly reflected for the years involved.”

The clear reflection of income test has a long history, dating back to the Revenue Act of 1918, section 212(b), 40 Stat. 1057,1064-1065. Neither the 1939 Code and its predecessors, nor the regulations, ever defined “clearly reflect income,” however. This job has been left to the courts. In determining whether a method of accounting meets the test, courts have looked to “generally accepted accounting principles” in the taxpayer’s industry. Where the taxpayer has consistently applied “sound accounting practice,” as measured by industry standards, his method has usually met the test. Treas. Reg. 111, § 29.41-2; Sen. Rep. No. 1622, 83d Cong., 2d Sess. 300 (1954); H. Rep. No. 1337, 83d Cong., 2d Sess 158 (1954). See Note, Clearly Reflecting Income Under Section 446 of the Internal Revenue Code, 54 Col. L. Rev. 1267 (1954) and cases cited therein. Compare American Automobile Association v. United States, 367 U.S. 687 (1961). Cases in which an accounting method is under attack are very difficult, but it seems that the most difficult cases are those in which the change itself distorts income and requires adjustments to clearly reflect income. The latter are most troublesome because “generally accepted accounting principles” are less likely to provide guidelines for the proper tax accounting of items that have already been deducted and will be deducted again under the changed-to method or of items that have never been deducted and will never be deducted under the new method. These are just representative of the kinds of possible distortions occurring as the result of a change. Unfortunately there is no ready-made test that can be uniformly applied to all “change in accounting method” distortions.

In the present case, we are confronted with a distortion resulting from a change in the method of inventory valuation. This is a problem brought about by the time dimension of accounting. Inventories, of course, continue through time. The closing inventory of one year is the opening inventory of the next. Additions to inventory caused by wholesale purchases and reductions caused by retail sales during the year will determine what is on hand at the close of the year. Any break in the consistent treatment of the value of inventory will distort the cost-of-goods-sold deduction used to compute taxable income. Such a break occurs if for one year the opening inventory is valued by one method and the closing inventory by another. On the facts here, taxable income for plaintiff’s fiscal year 1950 has been overstated and distorted because the opening inventory was computed on a different basis from the closing inventory. Plaintiff argues that to meet the “clear reflection of income” test this distortion must be prevented. Because section 22(d) (4) of the 1939 Code unequivocally requires the closing inventory of fiscal 1950 to be valued at cost, plaintiff says we can prevent distortion only by valuing opening inventory on a similar basis. Part of the argument is that the opening, but not the closing, inventory was reduced by a reserve for future markdowns which was an illegal reduction under sections 29.22 (c)-2 and (c)-8 of Treasury Begulations 111. The theory is that income cannot be clearly reflected if the accounting method violates the law. The weight of authority is strongly against this argument. There are many cases in which taxpayers have attempted to right a previous accounting error by changing the method. Where the advantage runs solely to the taxpayer via a double deduction or an exclusion of an income item, the courts have said that the prior method, though illegal, was consistent and the changes must be accompanied by an adjustment — presumably to clearly reflect income. Hackensack Water Co. v. United States, supra; Wright Contracting Co. v. Commissioner, supra; Broida, Stone & Thomas, Inc. v. United States, supra; Commissioner v. O. Liquidating Corp., supra.

(A.) Plaintiffs Double Taxation Argument.

The other part of plaintiff’s “clear reflection of income” argument is that we must value opening inventory on a similar basis to closing inventory to prevent double taxation. Again, plaintiff points to its accounting practice of reducing inventory by an arbitrary percentage reserve for future markdowns. It asserts that it has reduced inventories by such a reserve for tax accounting purposes since the introduction of the corporate income tax in 1913. Then plaintiff focuses on the fiscal years 1916-1920 which were before the Board of Tax Appeals in John Wanamaker Philadelphia, Inc. v. Commissioner, 22 B.T.A. 487 (1981), aff'd, 62 F. 2d 401 (3d Cir. 1932), cert. denied, 289 U.S. 738 (1933). We are told that the Board of Tax Appeals upheld the government’s contention that plaintiffs should not be allowed to reduce opening and closing inventories by arbitrary percentage reserves. The argument goes that this decision had the effect of including in taxable income for the years 1916 through 1920 the reserve reductions to inventories, thereby transforming the arbitrary percentage reserve into a “tax-paid reserve.” Although effectively eliminated for years prior to 1921, the old arbitrary percentage reserve, as transformed, was carried forward with additions and subtractions until the year now in issue. Because it is a “tax-paid reserve,” it will be taxed again if it is allowed to run through the profit and loss account in fiscal 1950.

To understand plaintiff’s argument, it is helpful to review tax accounting practice. Normally, a reserve is created or “funded” by deducting amounts from gross income; these, in turn, are either shown on the assets side of the balance sheet, as reductions to the value of specific assets, or, on the liabilities side, as liabilities reducing assets in general. Those reserves allowable as deductions from income for tax purposes — e.g., bad debt reserves and depreciation reserves, Int. B.ev. Code of 1954, §§ 166(c), 167(a) — will result in tax benefits or tax savings for profitable corporations. If for some reason such a reserve is no longer necessary and is therefore eliminated, sound accounting practice requires that the amount of the reserve be run through the profit and loss account. For tax accounting purposes, this has the effect of creating taxable income, the tax on which offsets the prior tax saving. Thus, symmetry is assured by taxing that which escaped taxation previously. An example clarifies: If a taxpayer has been consistently adding to a bad debt reserve by taking year-end deductions, he will have enjoyed tax savings in the amount of the tax he did not have to pay because the income was reduced by the deductions. When he finds that the reserve was not necessary, e.y., if all debtors pay their obligations in full and the taxpayer makes no further loans, he must remove the reserve from his balance sheet and restore it to income. This will be taxable income, and assuming identical tax rates, the applicable tax will exactly offset the prior tax saving.

By referring to a “tax-paid reserve,” plaintiff distinguishes its accounting situation from the normal. It argues that its case is unique, because unlike the example above, in which the elimination of the reserve occasions taxable income equal to the prior deduction, it had no prior deduction. Plaintiff concedes that it had deductions prior to 1921, but argues that the effect of the Board of Tax Appeals litigation was to offset those deductions by putting the reserves into taxable income. For fiscal 1921, and subsequent years, however, plaintiff continued to reduce inventories by the reserve “taxed” in the prior litigation. The heart of plaintiff’s argument is that to the extent that the reserve, viewed over its entire history, did not result in deductions with consequent tax benefits, it is “tax-paid” — as opposed to “tax-bene-fitt-ed” — and should not be included in income.

It is easier to understand plaintiff’s theory by looking at the figures. Set out below are the amounts deducted from opening and closing inventories of the Philadelphia store for the fiscal years 1916-1920,1921, and 1950:

PHILADELPHIA STOIÍE
Fiscal year Reserve deducted from inventory
ended J/Sl Opening Glosing Change
1916 - $360, 407. 36 $366, 005. 00 + $5, 597. 64
1917 - 366, 005. 00 471, 710. 60 +105, 705. 60
1918 - 471, 710. 60 479, 379. 62 + 7, 669. 02
1919 - 479, 379. 62 770, 583. 95 +291, 204. 33
1920 - 770, 583. 95 823, 666. 35 + 53, 082. 40
1921 - 823, 666. 35 994, 048. 05 +170, 381. 70
1950 - 675, 077. 72 733, 772. 27 + 58, 695. 05

Prior to 1916, plaintiff had built up the reserve to be deducted from 1916 opening inventory to $360,407.36. For the years 1916-1920, the Commissioner of Internal Revenue increased taxable income by adding back the deductions from each year’s income. Treating the five years as a unit, this had the effect of increasing plaintiff’s income by $823,666.35, which is equal to the 1920 closing inventory. This is the amount of plaintiff’s alleged “tax-paid reserve.”

The closing inventory of 1920 is, of course, equal to the opening inventory of 1921. Similarly, any reserve carries over. It is axiomatic that this $823,666.35 deduction from 1921 opening inventory yielded no tax benefit. The only tax benefit in 1921 came from the $170,381.70 increase in the reserve. The Internal Revenue Service allowed plaintiff to reduce inventories by this reserve method for all years subsequent to 1920. Tracing the history of these adjustments, we observe that in some years, notably the 20’s, reserves rose and with them, tax benefits, but in others, notably the 30’s, reserves declined, resulting in taxable income. For the entire period, from opening inventory 1921 to opening inventory 1950, the reserve declined to $675,077.72. The net effect was a $148,588.63 increase in taxable income occurring over the entire period. To be logically consistent, pla,intiff points out that it has paid tax twice on this $148,588.63, but it does not ask for relief from that double taxation here. It insists, however, that we should not allow defendant to increase taxable income in the amount of the 1950 opening inventory, which represents the balance of the “tax-paid reserve” or the “already-taxed” reserve.

Central to plaintiff’s double taxation theory is the premise that the reserve deducted from opening inventory in 1950 is the same as that in issue in the Board of Tax Appeals litigation. If it is not, it cannot be considered a “tax-paid reserve” because the increased tax resulting from the decision of the Board of Tax Appeals would have been paid on something else and there would be no double taxation. For the purpose of analyzing the applicability of the clear reflection of income standard, we shall assume that plaintiff’s premise is correct. In Part III we discuss the infirmities of plaintiff’s premise and resolve the controversy over the facts.

(B) Olear Reflection of Income a/nd Double Taxation

Section 29.22(d)-A of the Regulations provides that adjustments should be made “m the inventories of prior taxable years or otherwise” as are necessary “in order that the true income of the taxpayer will be clearly reflected for the yea/rs inmol/oed.” (Emphasis added.) In this we find a directive to judge whether income is clearly reflected at the time of a change to lipo not only by reference to the facts in the year of change and the immediately preceding year, but also by reference to facts in all preceding years. If plaintiff did pay tax on the reserve deducted from the opening inventory of its 1921 fiscal year by virtue of the Board of Tax Appeals judgment, and if that same reserve carried over to the opening inventory of 1950, we think that the only way to clearly reflect income “for the years involved” is to exclude from taxable income in the fiscal year 1950 the amount of the reserve to the extent it is “tax-paid.” On the assumed facts, the entire reserve should be excluded. This is the only approach that will give effect to the time dimension of inventory accounting discussed above. To determine what the opening inventory of 1950 represents, we must look back over its lifetime; and in looking back, we find that to properly reflect income in fiscal 1950, plaintiff should be able to make the necessary adjustment to take account of the “tax-paid” nature of the reserve.

Our approach is not completely novel. In Singer Sewing Machine Co. v. Commissioner, 5 T.C. 851 (1945), aff’d per curiam, 158 F. 2d 982 (3d Cir.), cert. denied, 331 U.S. 837 (1947), the Tax Court applied the clear reflection of income standard to facts very similar to those here in issue, and held that the Commissioner could not reduce the opening 1934 inventory of the Singer Sewing Machine Company to the extent that it would cause the double taxation of a “tax-paid” reserve created in 1918 and carried forward in the inventory account. Looking to the facts, the Singer Sewing Machine Company (Singer) bought parts and components from its parent, the Singer Manufacturing Company (Manufacturing) to manufacture products for sale to the public. Manufacturing realized substantial profits on these inter-corporate sales. Singer used the actual price paid to Manufacturing as the inventory value. In 1917, Singer’s closing inventory was valued at $12,138,304, which included the $6,-106,560.24 profit which Manufacturing had realized on sales to Singer. In all years prior to 1918, Manufacturing and Singer had filed separate Federal income tax returns, so Manufacturing had included the full $6,106,560.24 profit in its taxable income.

In 1918, and in each year through 1933, Manufacturing and Singer filed consolidated tax returns. Revenue Act of 1918, § 240, 40 Stat. 1057, 1081-1082. During the period of consolidation, Singer continued to value its inventories as before. Thus, it bought goods from its parent at prices which included a substantial profit for Manufacturing, and valued its inventory at the actual price paid which included these profits. In reporting income on the consolidated returns, however, Singer treated the inter-corporate profits as a reserve which it deducted from the full price inventory value. For the first consolidated return year 1918, Singer deducted a reserve of $6,106,560.24 from its opening inventory. This was the amount of profit already taxed in 1917 and prior years. Without more, this reserve deduction would have increased income in 1918. In fact it did not, because Singer reduced 1918 closing inventory by a reserve for inter-corporate profits of $8,245,474.67 (the $6,106,560.24 phis Manufacturing’s profit during 1918) which decreased income more than the increase caused by the adjustment to opening inventory. Through 1933, the inter-corporate profits were deducted as reserves from both opening and closing inventories.

After 1983, Manufacturing and Singer were not allowed to file consolidated returns. Revenue Act of 1934, § 141, 48 Stat. 680, 720-722. Accordingly, in 1934 tbey filed separate returns. The value of Singer’s 1933 closing inventory was $18,422,333.36. The reserve for inter-corporate profits was $8,431,575.92. The Commissioner of Internal Revenue had issued regulations which required Singer to reduce its opening 1934 inventory (but not closing 1934 inventory) by the entire $8,431,575.92 reserve. Treas. Reg. 86, art. 113(a) (11) -1. This had the effect of increasing 1934 income by the full amount of the reserve. The supposed purpose of this adjustment was to prevent the inter-corporate profits from forever escaping taxation. The Tax Court, applying the clear reflection of income standard in section 141(b) of the Revenue Act of 1932,47 Stat. 169, 213, reviewed all the years from 1918 through 1933 to determine the net effect of Singer’s treatment of inter-corporate profits. It found that during the entire period in which consolidated returns had been filed, only $2,325,015.68 of the $8,431,575.92 reserve had escaped tax. The other $6,106,560.24 had already been included in income by Manufacturing in 1917 and prior years. The court held that this amount — this “tax-paid” portion of the reserve — should not be taxed a second time. To clearly reflect income, it reduced Singer’s opening 1934 inventory only by the $2,325,015.68 that had not been previously taxed.

We have labored the facts in Singer because they are so close to the present case. The reserve which the Wanamaker Philadelphia store deducted from its opening fiscal 1921 inventory became a “tax-paid” reserve by virtue of the litigation in the Board of Tax Appeals. The reserve which the Singer Sewing Machine Company deducted from its opening 1918 inventory was a “tax-paid” reserve or “already-taxed” reserve by virtue of the prior taxation of its parent’s profits. When the Commissioner of Internal Revenue required Singer to reduce its opening 1934 inventory by the reserve, the Tax Court held that to the extent this would tax again the amount already taxed it could not clearly reflect income. The Commissioner has required plaintiff in this case to reduce its opening 1950 inventory by the reserve, and we can say now that this does not clearly reflect income because it exposes to tax the balance of the amount already taxed.

Defendant would have us distinguish Singer on its facts. The theory is that the Tax Court was really trying to prevent the Government from taxing Singer on a profit properly realized by Manufacturing. That was decidedly not the basis of the Tax Court’s holding. There is no question the holding is grounded on the application of the clear reflection of income standard. Singer Sewing Machine Co., supra, at 855. Defendant also argues that plaintiff seeks to circumvent the statute of limitations and to ignore the rule that tax liabilities are determined on an annual basis. See Burnet v. Sanford & Brooks Co., 282 U.S. 359 (1931). And in oral argument, defendant stressed that plaintiff is really asking for mitigation for which it does not qualify. See Int. Rev. Code of 1939, § 3801; Int. Rev. Code of 1954, §§1311-1315; H. T. Hackney Co. v. United States, 111 Ct. Cl. 664, 78 F. Supp. 101 (1948); Gooch Milling & Elevator Co. v. United States, 111 Ct. Cl. 576, 78 F. Supp. 94 (1948). See also Int. Rev. Code of 1954, §481. These appear to be red herrings, out of the context of the proper meaning and application of “clearly reflect income.”' In making an historical survey of the Wanamaker inventories to determine whether income is clearly reflected in the fiscal year 1950, we do not think we are doing any violence to the tax accounting concepts defendant relies upon. We are not “opening up” prior years or spreading income or deduction items about. We merely refer to the prior years for certain objective facts, a practice which is quite common in tax law and particularly appropriate here because inventories are a part of a chain, the origins of which can only be learned by inquiry into the past.

III. The Fact Issue

Until now, we have assumed, as contended by plaintiff, that since 1913 the deductions from inventories were “illegal arbitrary percentage reserves.” Treas. Peg. Ill, § 09.22 (c)-2 and (c)-8. The defendant sharply contests this contention, arguing that the reductions to inventory considered by the Board of Tax Appeals were not entirely the same and that plaintiff is collaterally estopped from asserting the contrary now. The Trial Commissioner set the stage for this argument because he made findings of fact that the reserves deducted in 1916-1920 were not composed exclusively of “illegal arbitrary percentage” markdowns. Apparently, during the pre-trial and trial proceedings, and indeed through the proposed findings of fact stage, the parties were in substantial agreement that the reserve had always been composed exclusively of “illegal arbitrary percentages.” Plaintiff, understandably, would like us to bind defendant by its earlier concession inasmuch as there is no double taxation unless the item in 1950 is the same as that in 1916-1920. We are of the opinion, however, that it is neither desirable nor necessary to limit defendant to its original theory of the case. We substantially agree with our commissioner’s, and defendant’s, present view of the facts, but conclude that what the plaintiff was doing to reduce inventories in the years 1916 through 1920 was functionally the same as what it did through 1950. This is established by the preponderance of plaintiff’s evidence — even though plaintiff did not choose to argue its case this way.

The Board of Tax Appeals sustained the decision of the Commissioner of Internal Eevenue disallowing the 1916-1920 deductions from inventory on the ground that the Wanamaker companies had failed to prove that the deductions were other than “illegal arbitrary percentages.” 22 B.T.A., at 500. The Board said, however, that the method as explained by plaintiff’s witnesses was proper (at least in part) if provable — i.e., the reserves were not entirely “illegal arbitrary percentages.” 22 B.T.A., at 501. Because the companies had lost the necessary accounting worksheets, allegedly due to the Government’s negligence, the only proof they could offer was through the testimony of their executives. There is no doubt that these witnesses testified that the reserves were other than arbitrary percentages, non-deductible then as now.

We have reviewed all the testimony before the Board of Tax Appeals to ascertain the basis of its findings of fact and holding, and get the following picture: On the last day of each fiscal year, Wanamaker sales clerks counted all items in their departments and entered on tally sheets both the number of items on hand and their retail prices. Store buyers reviewed the sheets to enter the cost. In a few instances, the buyers would enter a figure lower than cost, reflecting personal knowledge of a decline in value. For most items, however, only the merchandise managers made the necessary adjustments to get the inventory to a “true” lower of cost or market value. This process took place over a 2-week period, the manager responsible for each store (in Philadelphia and New York City) spending about 100 hours. Because the inventory consisted of hundreds of thousands of items, the review was necessarily selective. Typical considerations for reducing the stated cost of the item to arrive at market value were the age and condition of the merchandise, its vulnerability to fashion changes, and the sizes and colors available, to name a few. Then there were deductions to “cost” as such, as contrasted with deductions from cost to get to market. The one most talked about was the adjustment to the cost of foreign source merchandise to reflect changes in foreign currency values. Also, invoices were occasionally lost or inaccurate, necessitating cost adjustments. The total of these adjustments and an additional adjustment to reflect a future markdown for the forthcoming February sale was equal to a reserve. In addition, the Wanamaker companies set up a reserve of a flat 10 percent of the inventory as reduced by all the adjustments. That 10 percent reserve further reduced inventories, but brought no tax deduction and was accordingly not in issue. To sum up: The uncontested testimony of the Wanamaker witnesses in the earlier litigation shows that the item today called the “illegal arbitrary percentage reserve” was for 1916 through 1920 apparently a composite of reductions used to get inventory to the “true” lower of cost or market. Considering the tremendous number of items adjusted, probably most of the reductions were arbitrary percentages. However, only the future markdown for February sales adjustment was clearly “illegal” under the predecessor to Treasury Kegulations 111, §§ 29.22 (c)-2 and (c)-8. Because the records were not available, the witnesses were not able to identify what portion of the “reserve” was composed of this “illegal” adjustment.

In the trial in the present case, the parties agreed that an assistant treasurer of Wanamaker would be the only witness to develop the facts relating to Wanamaker’s inventory accounting practice. This witness had been employed by the plaintiff since 1938, and consequently had no personal knowledge of the accounting practice in the years before the Board of Tax Appeals. His testimony covered the earlier years, however, and he could not be shaken from his position that for 1916 through 1920, and indeed for all subsequent years, the inventory accounting method was essentially unchanged. With respect to the testimony in the earlier case, he said on direct examination that the so-called “illegal arbitrary percentage reserve” was computed by total-ling the arbitrary percentage deductions for all departments. He explained the non-deductible flat 10 percent reserve (which was not before the Board) as a general reserve computed as a percentage of the entire inventory. The witness obviously appreciated that his interpretation of the facts was inconsistent with the testimony of the witnesses before the Board of Tax Appeals. Thus, on cross-examination, he conceded Wanamaker contended the reserve was not an “illegal arbitrary percentage reserve” in 1916-1920, but he explained that Wanamaker understood the judgment in that case as meaning that the reserve was an “illegal arbitrary percentage reserve.” The witness testified further that the reason Wanamaker continued to use the “arbitrary percentage reserve” method after it “knew” it was illegal (certiorari was denied in 1933) was that it considered the reserve to be “tax-paid.”

We have summarized the testimony in the Board of Tax Appeals trial and in the trial in this court to show that there is an irreconcilable conflict. In the earlier case, Wanamaker wanted a tax deduction which it could have only if it could prove that the reserve was not the composite of arbitrary percentage writedowns, prohibited by the regulations. In the present case, there is no question that the reserve deducted from opening 1950 inventory was an “illegal arbitrary percentage reserve,” so the plaintiff has tried very hard to convince us that the reserve in 1916-1920 was the same thing. Both parties argue that the decision of the Board of Tax Appeals has a collateral estoppel effect. Plaintiff says that we should look to the judgment only, which had the effect of disallowing deductions in the amount of the reserve ; defendant says we should look to that part of the decision which suggests that the method of accounting as described by plaintiff’s witnesses was proper and by implication not an “illegal arbitrary percentage reserve” method. 22 B.T.A., at 500.

In our view, it is not necessary to rule on the question of who is estopped. We think the testimony in the trial in this court, coupled with the testimony before the Board of Tax Appeals and its findings of fact and opinion, establish that the Wanamaker accounting practice during the fiscal years 1916 through 1920 was different from that in 1950. No one will ever know whether the reserve in the earlier years was entirely an “illegal arbitrary percentage reserve” as the Internal Revenue Service then found it convenient to contend, and as plaintiff asks us to decide now. We assume that it was not, or that only part of it was. We focus on the purpose of the reserve method used in 1916 through 1920, and conclude that plaintiff was using a modified “cost method, lower of cost or market,” inventory valuation system, which was designed to produce a “true” lower of cost or market inventory value. This was a conservative bookkeeping practice which “squeezed the water” out of inventories and produced a more realistic balance sheet.

At some time between 1921 and 1950, the reserve definitely became entirely an arbitrary percentage reserve, clearly illegal under the regulations. We do not know the circumstances of this transformation. It appears that it occurred in the fiscal year 1935 when plaintiff discontinued using the “cost method, lower of cost or market” and began using the “retail method, lower of cost or market.” The retail method was selected because its use eliminated the tremendous job of adjusting the cost of each item of merchandise. In computing a retail method inventory value, an accountant need only know the retail price which he simply reduces by the average percentage mark-on. In shifting to this method, plaintiff continued to reduce the inventory value by the “tax-paid” reserve carried over from earlier years. In 1935 and thereafter, the reserve was computed by taking a percentage of the retail method inventory value, the percentage varying with the age of the merchandise. For tax accounting purposes, this was clearly illegal under the regulations. Again, we focus on the purpose of the reserve method, but this time on the method used after 1934, and we conclude that, just as we said about the method used by plaintiff in 1916 through 1920, plaintiff was using the reserve as a modification to the “retail method, lower of cost or market” inventory valuation system, to produce a “true” lower of cost or market inventory value.

IV. Conclusion

Because we conclude that the function of the reserve before 1934 was identical to the function after, and that the “old” reserve was merged into the “new,” we are of the opinion that plaintiff can recover even though we cannot say the reserve has always been solely the composite of “illegal arbitrary percentage” deductions. In so holding, we do not intend to cloak the “illegal arbitrary percentage reserve” method with legality. There is no question that sections 29.22 (c)-2 and (c)-8 of Treasury Regulations 111 forbid this method. Illegal as it may have been, however, plaintiff consistently followed this practice until 1950 without any objection by the Internal Revenue Service, and in so doing, carried forward the old “tax-paid” reserve. We agree with the reasoning in Singer Sewing Machine Co., supra, as it relates to this case, and hold that to clearly reflect income at the time of the change to lipo, the Commissioner of Internal Revenue cannot reduce the plaintiff’s opening 1950 inventory by the amount of the “illegal arbitrary percentage reserve.” This will give plaintiff a substantial recovery, but one to which it is entitled because it has already paid its tax.

Judgment shall be entered for plaintiff John Wanamaker Philadelphia, Inc. in No. 305-61, and for John Wanamaker Philadelphia, Inc. (Successor by merger to John Wanamaker New York, Inc.) in No. 70-63, with the amount of the refund, including interest, to be determined pursuant to Rule 47(c) (2).

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. By order of the Trial Commissioner, these cases were consolidated for trial. The petition in No. 70-63 was consolidated with the petition in No. 305-61 and the former petition was also made Count II of the latter petition. The two cases present the same material facts and issues.

2. Plaintiff John Wanamaker Philadelphia, Inc., is, and during the period here involved was, a corporation organized (in 1907) and existing under the laws of the Commonwealth of Pennsylvania. Its principal business is the operation of a retail department store. Its principal office is located at 13th and Market Streets, Philadelphia, Pennsylvania.

3. Plaintiff John Wanamaker New York, Inc., was a corporation organized (in 1907) and existing under the laws of the State of New York during the period here involved. All issued and outstanding capital stock was owned by that plaintiff until December 31, 1956, when it was merged into plaintiff John Wanamaker Philadelphia, Inc., pursuant to the laws of the Commonwealth of Pennsylvania. John Wanamaker New York was at all times here involved engaged in the operation of a retail department store. Its principal office was at 784 Broadway in New York City.

4. John Wanamaker Philadelphia and John Wanamaker New York (hereinafter referred to individually as Philadelphia and New York and collectively referred to as plaintiffs) kept their books of account and filed their Federal income tax returns on an accrual basis of accounting for fiscal years ended January 31. Philadelphia and New York filed separate returns for fiscal 1916. From fiscal 1917 through fiscal 1934 plaintiffs filed consolidated returns. From fiscal 1935 through fiscal 1951 Philadelphia and New York filed separate returns.

5. In each of the fiscal years 1913 through 1934, Philadelphia and New York valued their inventories of merchandise on their books of account and for Federal income tax purposes at the lower of cost or market on the cost system. From fiscal year 1935 through 1950 they valued their inventories at the lower of cost or market on the retail system. The differences between the cost and retail systems are not here in issue. From the inventory values thus computed, Philadelphia and New York deducted an arbitrarily selected, single percentage allowance or reserve in each department, to allow for future markdowns which might be made by the store buyers. Those reserves were not related, at any time, to actual markdowns made in the future by the buyers. Markdowns previously accomplished by the buyers were included in the lower of cost or market computations.

The reserves for each year are separately computed annually, department by department, and are neither cumulative nor dependent upon the amounts of the arbitrary reserves for future markdowns for any other fiscal year, except for the fact that the closing inventory of a fiscal year, including the reserve computation, becomes the opening inventory of the succeeding fiscal year.

6. Following finding 7 is an example of the inventory valuation procedure taken from defendant’s exhibit 1. It shows the valuation of the inventory of Philadelphia’s Department L as of January 31,1921.

7. The Department L example of Philadelphia’s method of inventory valuation in 1921, set forth in finding 6, represents part of Philadelphia’s method of inventory valuation from 1913 through 1934. That method was in issue before the Board of Tax Appeals in a case decided in 1931 relating to fiscal years 1916 through 1920 (22 B.T.A. 487) .

$52, 436. 00
(15, 730. 80)
36, 705. 20
Reductions_ (959. 00)
35, 746. 20
Difference in
exchange_ (70. 00) Represents a calculation based upon changes in the foreign ex-
35, 676. 20 change rate through the year.
OS_ (430. 35)
35, 245. 85
Discount_ (3, 172. 12)
32, 073. 73 Inventory value, lower of cost or market on the cost method.
10% Allowance- (3, 574. 62) A 10-percent allowance for future markdowns.
28, 499. 11 Inventory value of Department L, January 31, 1921, lower of cost or market, less the reserve or allowance for future markdowns.

8. Plaintiffs continued their inventory valuation system of determining the lower of cost or market on the cost system from fiscal 1921 through fiscal 1934. Thus, for fiscal years subsequent to those in issue before the Board of Tax Appeals, deduction of arbitrary reserves, in valuing inventories, was allowed by the Commissioner of Internal Revenue. In fiscal 1935 Philadelphia and New York changed to the retail system of determining the lower of cost or market. The cost and retail methods included computing arbitrarily selected single percentages for the reserves for future markdowns. The use of single percentages continued through fiscal 1936. In fiscal year 1937 plaintiffs switched from single percentages, by department, to multiple percentages, by department. The multiple percentages were assigned to the inventories according to the age of the goods. The lowest percentage allowance was assigned to goods less than 6 months old, a larger percentage to goods that were from 6 months to 1 year old, and a still larger percentage allowance was assigned to goods more than 1 year old.

The Commissioner of Internal Revenue continued to allow Philadelphia and New York to use such arbitrary reserves in computing inventory values through fiscal 1949. Following is an example of this inventory valuation procedure showing the closing inventory valuation in fiscal 1949 of Philadelphia’s Department L:

Domestic Percent N Percent Prior Percent Total Percent
Inventory at retail- - - 89,991.35 36.8 225.00 :6.8 90,216.35 36.8
Inventory at cost— 56,874.63 142.20 57,016.73
Season reserve_ (6,687.45) 10.0 (35.55) 25.0 40.0 (5,723.00)
Special reserve_ (484.00)
Discount_ (4,013.97) 7.9
Cost stock-. 46,795.76
Foreign
Inventory at retail-2,315.70 44.2 2,315.70 44.2
inventory at cost_ 1,292.17 1,292.17
Season reserve-. (129.22) 10.0 25.0 40.0 (129.22)
Special reserve_
Discount.. (209.33) 18.0
Cost stock_ 953.62
Total
Inventory at retail-92,307.05 37.0 225.00 6.8 92,532.05 37.0
inventory at cost-58,166.70 142.20 58,308.90
Season reserve_ (5,816.67) (35.55) (6,852.22)
Special reserve_ (484.00)
Discount__ (4,223.30) 8.1
Cost stock — final closing. 47,749.38

Column “R” designates merchandise on hand less than 6 months old. Column “N” designates merchandise more than 6 months but less than 1 year old. Column “Prior” designates merchandise more than 1 year old. The figures 10.0, 25.0 and 40.0, appearing twice in each column entitled “Percent,” represent the multiple, arbitrarily selected percentages applied to inventory cost to ascertain the reserve for future markdowns, according to the increasing age of the goods, respectively. The amount of $47,749.38 represents the closing inventory value of Department L in 1949. That value, for purposes of this case, represents the inventory value of that department at the lower of cost or market, on the retail system, inclusive of computations for unearned trade discounts and reserves for future markdowns.

9. Similarly computed inventory values of all the departments m the stores were added together and the totals thereof entered, in a summary page of a general ledger, as the total inventory figures as of the end of the fiscal year. Those totals, set forth on the summary page, included the total of all arbitrary reserves for future markdowns.

The table set out on page 199 is the summary inventory sheet, from Philadelphia’s inventory ledgers, showing the valuation of the entire inventory of Philadelphia and reflecting the totals of the individual items appearing on the separate departmental inventory sheets at the end of fiscal 1949.

The amount of $4,618,403.21 represents the inventory value of goods on hand in Philadelphia at the close of fiscal 1949 on the lower of cost or market on the retail system less an arbitrary reserve for future markdowns in the amount of $675,077.72. That $4,618,403.21 value also includes an addition of $204,512.70, which was the value of inventories of workrooms and a subtraction of another value representing discounts. Thus, the actual lower of cost or market value of the closing inventory of 1949 was $5,088,968.23. That value does not include a deduction for any “arbitrary reserve for future markdowns.” The amount of $530,898.51 represents the total of each department’s multipercentage allowance for future markdowns. The amount of $144,179.21 represents the total of the departmental Special reserves in those departments still in existence having frozen allowances. They are explained more fully in footnote 7 to finding 8. The latter two totals, when added together, equal $675,077.72, and those figures are also to be seen in the statement of reserves deducted from opening and closing inventories set forth in finding 10.

10. Set forth on pages 202 and 203, infra, are the plaintiffs’ alleged “illegal arbitrary percentage reserves” for future markdowns deducted from opening and closing inventories for fiscal years 1913 through 1949. It is to be noted that some of the figures set forth, relating to fiscal 1913 through 1925, are identical to some of the figures set forth in the Board of Tax Appeals case in 1931, a prior opinion dealing partially with plaintiffs’ system of valuing inventories.

11. The values of the inventories, as determined under the previously described methods, were used by plaintiffs in determining the cost of goods sold for each year.

The cost of goods computation, of course, affects annual profit and loss. Thus, the use of arbitrary reserves for future markdowns, in valuing inventories, has the following effects on profit or loss in any given year:

(a) If the amount of the reserve deducted from opening inventory exceeds the reserve deducted from closing inventory, then the amount of such excess increases profit (or decreases loss).

(b) If the amount of the reserve deducted from closing inventory exceeds the amount of the reserve deducted from opening inventory, then the amount of such excess decreases profit (or increases loss).

(c) If the amount of the reserve deducted from the opening inventory equals the reserve deducted from closing inventory, then there is no effect on profit or loss.

12. For fiscal year 1948, Philadelphia and New York elected to use the Last In-First Out (lifo) method of inventory valuation in some of their departments for Federal income tax purposes. That 1948 election was conditioned upon acceptance, by the Commissioner of Internal Revenue, of amended income tax returns submitted by them for fiscal years 1942 through 1947. The amended returns reflected inventory valuations, for fiscal 1942 through 1947, based on the lifo method of valuation instead of the lower of cost or market method used when the original returns were filed. They valued their inventories and filed their tax returns for fiscal 1949 and 1950 upon the lifo method as well. Plowever, the Commissioner refused to accept the 1948 lifo election and thus rejected the amended returns for fiscal 1942 through 1947.

13. In fiscal 1951 plaintiffs made a new election to use the lifo method for some of their departments. Pursuant to the election, plaintiffs’ Federal income tax returns for the fiscal year ended January 31, 1951, contained opening and closing inventories valued at actual (lifo) cost. The 1951 elections were accepted by the Commissioner.

14. Since Philadelphia’s and New York’s fiscal 1948 lifo elections were not accepted by the Commissioner, the inventory valuations on their tax returns, from 1948 through 1950, were, accordingly, upon audit, readjusted to reflect the lower of cost or market on the retail method less the reserves for future markdowns. The adjustments from the unaccepted lifo method to the lower of cost or market method of inventory valuation resulted in tax refunds to plaintiffs for fiscal 1948 and fiscal 1949.

In adjusting the inventory values to be used in the cost of goods sold computation for fiscal 1950, the Commissioner valued the opening inventories of plaintiffs at the lower of cost or market on the retail system less the arbitrary reserves for future markdowns. However, the Commissioner valued the closing inventories of plaintiffs for fiscal 1950 at actual (lifo) cost, to agree with the opening 1951 inventories, but did not deduct from such actual (lifo) value any reserve for future markdowns.

The effect of the Commissioner’s action in reducing the value of opening inventories for fiscal 1950 by deducting the reserves but not making a deduction from closing (lifo) inventories was to increase income for 1950 by the amount of the reserves, as follows:

Philadelphia_$675, 077. 72
New York- 440, 357.48

15. As noted, Philadelphia and New York valued their fiscal 1951 inventories (both opening and closing) on the lifo method. In addition, it was necessary that plaintiffs’ 1950 closing inventory be the same as the 1951 opening inventory (Internal Eevenue Code of 1989, § 22(d) (4)). A two-step adjustment was necessary and was made upon audit by the Commissioner’s representative. This was caused in part by the fact that plaintiffs’ separate Federal tax returns for fiscal 1950 contained inventories still valued according to the unaccepted lifo election of 1948. The erroneous inventories, of Philadelphia, were first adjusted, as follows, to return to the system of inventory valuation previously used:

ADJUSTMENTS TO PUT INVENTORIES ON BASIS OF LOWER OF COST OR MARKET, INSTEAD OF LIFO AS REPORTED ON TAX RETURN FOR FISCAL YEAR 1950
Opening inventory at lower of cost or market, per books_ $4,413,890.51
Less: Opening inventory at lifo per return- 3,262,620. 70
Net increase in opening inventory necessary to place it on basis of lower of cost or market_ 1,151,269. 81
Closing inventory at lower of cost or market, per books_ 4. 628.441. 04
Less: Closing inventory at lifo per return_ 3, 766, 832.40
Net increase in closing inventory necessary to place it on basis of lower of cost or market_ 861,608. 64

16. The second adjustment was made to the 1950 closing inventory to put the inventory valuation on the basis of cost (lifo) rather than the lower of cost or market. As so adjusted, the closing inventories agreed in amount with the opening inventories on the fiscal 1951 tax returns. The adjustment is set forth below:

ADJUSTMENTS TO PUT CLOSING INVENTORY FOR FISCAL YEAR I960 ON RASIS OF COST INSTEAD OF LOWER OF COST OR MARKET (PURSUANT TO LIFO ELECTION FOE FISCAL YEAR ENDED JANUARY 31, 1951)
Closing inventory at cost (per opening inventory, fiscal year ended January 31, 1961, tax return)_$6, 569, 816. 84
Less: Closing inventory at lower of cost or market - 4, 628, 441. 04
Net increase in closing inventory necessary to place
it on basis of cost_ 941, 374. 80

17. The ultimate effect of the two types of adjustments made by the Internal Revenue Service to the value of the inventories shown on Philadelphia’s tax return for the ñscal year ended January 31, 1950, is illustrated by the following table. The same two types of adjustments were made to the inventories shown on New York’s fiscal 1950 tax return.

EFFECT OF ADJUSTMENTS
Commissioner’s procedure Philadelphia’s procedure under claim for refund
Computation of Opening Inventory
Opening inventory at lifo per unaccepted return_ $3,262,620.70 $3,262,620.70
Add: Increase in opening inventory to place it on basis of lower of cost or market consistent with prior years— 1,151,269.81 1,151,269.81
Opening inventory at lower of cost or market, per books_ 4,413,890. 51 4,413,891). 51
Add: Opening Season and Special reserves. None 675, 077. 72
4,413,890.61 5,088,968.23 Opening inventory, as adjusted.
Commissioner’s procedure Philadelphia’s procedure under claim for refund
Computation of Closing Inventory
Closing inventory at lifo per unaccepted return. $3,766,832.40 [,766,832.40
Add: Increase in closing inventory to place it on basis of lower of cost or market consistent with prior years— 861,608.64 861,608.64
Closing inventory at lower of cost or market, per books— 4,628,441.04 4,628,441.04
Add: Increase in closing inventory to place it on basis of cost_____ 941,374.80 941,374.80
Closing inventory at cost (per opening inventory, fiscal year ended 1/31/51 tax return)...*_ 5,569,815.84 5,569,815.84
Add: Season and Special inventory reserves applicable to non-LIFO departments_ None 64,486.60
Closing inventory, as adjusted___ 5,569,815.84 5,624,302.44
Computation of Cost oj Goods Sold
Opening inventory, as adjusted. 4,413,890.51 5,088,968.23
Add: Material or merchandise bought for manufacture or sale, including transportation and discounts, per return_ — ___-_ 35,429,991.42 39,843,881.93 35,429,991.42 40,518,959.65
Less: Closing inventory, as adjusted.. 5,569,815.84 5,624,302.44
Cost of goods sold.-. 34,274,066.09 34,894,657.21
Plaintiff’s cost of goods sold.. 34,894,657.21
Less: Commissioner’s cost of goods sold-34,274,066.09
Understatement of cost of goods sold, per plaintiff’s claim for refund... 620,591.12

18. The lower of cost or market values and the arbitrary percentage reserves used by the Commissioner of Internal Revenue in the adjustments to opening and closing inventory values noted in findings 15 through 17, supra, were taken from the books of Philadelphia and New York.

19. The lifo election in 1951, made by Philadelphia and New York, required that their prior method of valuing inventory, on the lower of cost or market less arbitrary reserves for future markdowns, be eliminated. Similarly, elimination of that system was required in their closing 1950 inventories. In this action, Philadelphia and New York complain that the Commissioner of Internal Revenue refused to make a similar adjustment to fiscal 1950 opening inventories. More particularly, they complain their 1950 incomes were distorted because the arbitrary reserves for future markdowns were eliminated from their closing 1950 inventory values but were used to reduce the value of their 1950 opening inventories.

20. The parties agree that plaintiffs’ use of the arbitrary reserves for future markdowns in their inventory valuations has been improper since Treasury Regulations 111 were promulgated in 1943. Substantially similar regulations have been in force since 1922. However, this system had been used by plaintiffs as fax back as 1913, in valuing both opening and closing inventories. As shown in findings 11 and 14, swpra, if such reserves are used only for an opening or closing inventory without a concomitant use in the other, the inventory values, cost of goods, profit and loss, and income tax liability are drastically affected.

Defendant offered no information as to why the Commissioner of Internal Revenue allowed plaintiffs to use reserves for future markdowns or obsolescence for at least 28 years. The use of such reserves from 1921 through 1949 resulted in an increase of only $148,588.63 in Philadelphia’s taxable income on gross profits in excess of $368,000,000.

21. As more fully set forth in finding 24, infra, the Commissioner of Internal Revenue disallowed the deduction of the predecessor to the “illegal arbitrary percentage reserve” from the closing inventories of 1916 and from the opening and closing inventories 1917-1920, inclusive. The Commissioner’s disallowance was sustained by the Board of Tax Appeals. 22 B.T.A. 487 (1931). The foregoing disallowance of the deduction of the reserves resulted in adding to the income of Philadelphia and New York and taxing the respective amounts of $823,666.35 and $1,148,526.76. Such amounts were the amounts of the closing 1920 reserves which had been disallowed as deductions from the inventories and were also the amounts of the opening 1921 reserves which the Commissioner did not disallow as deductions from the 1921 inventories.

During the years 1921-1949, inclusive, when the Commissioner did not disallow the deduction of the reserves in the amounts set forth in finding 10, supra, the net income of Philadelphia was increased by the amount of $148,588.68 and the net income of New York was increased by the amount of $708,169.28 through the allowance of such reserves.

In 1950 when the Commissioner did not disallow the deduction of the reserves from the opening inventories but did disallow the deduction of such reserves from the closing inventories, he again increased the income of Philadelphia and New York, and taxed the respective amounts of $675,077.72 and $440,357.48.

The Commissioner’s disallowance of the deduction of the reserves in 1916-1920, his allowance of their deduction from the opening inventory of 1921 through the opening inventory of 1950, and his disallowance of their deduction from closing 1950 inventories, has resulted in Philadelphia and New York twice including in taxable income the respective amounts of $823,666.35 and $1,148,526.76 — once in the period 1916-1920 and again during the period 1921-1950, as shown in the following table:

Philadelphia Hew York
Net amount included in taxable income 1916-20- $823, 666. 35 $1,148, 526. 76
Net amount included in taxable income 1921 — 49- 148, 588. 63 708,169. 28
Net amount included in taxable income in 1950- 675, 077. 72 440, 357. 48
$823, 666. 35 $1,148, 526. 76

22. The issues in the 1931 Board of Tax Appeals case arose when the Commissioner of Internal Revenue issued deficiency notices to plaintiffs relating to fiscal years 1916 through 1920. In those deficiency notices the Commissioner disallowed certain inventory deductions on the ground they were not accounted for or substantiated. Upon receipt of the deficiency notices, Philadelphia and New York filed petitions with the United Statas Board of Tax Appeals (now the Tax Court of the United States) in which they protested the disallowances. Thus, plaintiffs’ method of inventory valuation was in issue in that case decided by the Board of Tax Appeals in 1931. Based on the testimony of petitioners’ treasurer (Mr. Barker) and of the merchandise manager of New York (Mr. Appel), the Board made findings of fact that there were several factors necessitating adjustments to inventory cost value in order to reflect the lower of cost or market. They included adjustments for billings lost or not received, the erroneous application by store buyers of flat rates of foreign exchange (instead of the actual rates which fluctuated through the fiscal year), errors in the extension of figures, and—

5. * * * Corrections * * * made in order to take into account the reduced selling prices of goods, which go into effect during the month of February each year. '* * *

The Board went on to find that—

5. * * * If any necessity for an adjustment is discovered, a memorandum is made but no change is made in the extended figures on the detail or summary sheets. From the memorandum a final adjusting figure is arrived at which is then deducted from or added to the final figures on the summary sheets. * * *

At this point it must be noted that the important aspect of that case, so far as inventory valuation methods were concerned, was the fact that certain detailed inventory sheets, summary sheets and accompanying memoranda had been destroyed according to plaintiffs’ normal practice, and the Government had allegedly lost certain records that would have helped in explaining the nature of the adjustments. The Board had before it, however, a memorandum made from the inventory summary sheets, referred to in finding 7, footnote 10 to finding 10, and findings 23 and 25, reflecting figures identical to the figures set forth for fiscal 1913 through 1925 in finding 10. 22 B.T.A., at 492. This memorandum Showed the total of the adjustments used to get the inventory to a “true” lower of cost or market value and was the predecessor to the “illegal arbitrary percentage reserve” system.

23. Petitioners, plaintiffs here, contended before the Board of Tax Appeals that the inventory figures, as finally approved by Barker and Appel, i.e., the figures on the memorandum, should be used in computing Philadelphia’s and New York’s net incomes for each of the years in question (22 B.T.A. 487, 498). The Board of Tax Appeals, in 1931, found as a fact that—

* * * For many years, including those in question, the inventories in each store were taken on the basis of cost or market, whichever was lower. The method employed in taking inventories was substantially the same in each store. It had been used for many years prior to 1916, was in use during all of the years in question, and is still followed. * * * (Id. at 489.)

Succinctly stated, plaintiffs’ argument before the Board of Tax Appeals was that preliminary inventory sheets should not be used in computing inventory value because they overstated inventory value, and that the Board should use the inventory value as reduced by the figures contained in the memorandum which had been taken from the lost summary sheets.

24. The Board of Tax Appeals sustained the Commissioner’s disallowance of plaintiffs’ deductions. It held, inter alia, that plaintiffs had failed to prove that the deductions claimed were not arbitrary and failed to establish the reductions made were correct although the method under which such reductions were made was a proper one. The Board’s opinion was affirmed by the Third Circuit Court of Appeals (62 F. 2d 401 (1932), cert. denied, 289 U.S. 738 (1933)). There was a dissent, arguing, in essence, that plaintiffs had met their burden of proof to the extent possible and that the Commissioner’s duty was to deny affirmatively that he had the lost sheets in his possession.

The effect of the Board of Tax Appeals litigation was to disallow any deduction for reserves in valuing the inventories used in determining Philadelphia’s and New York’s Federal tax liabilities in the fiscal years 1916 through 1920. Philadelphia and New York paid deficiencies in the total amount of $113,342.08 for the fiscal years 1916-1920.

The relevant additional amounts of net income on which the Commissioner of Internal Eevenue assessed the deficiencies for fiscal years 1916 through 1920, as shown by the 1931 Board of Tax Appeals decision, supra, at 492-493, are as follows:

Philadelphia Year New York
$366,005.00 1916 $289,600.00
471,710.60 1917 « 300,300.00
7,669.02 1918 187,891.99
291,204.33 1919 580,248.79
53,082.40 1920 .

25. Philadelphia and New York have submitted,, as a proposed finding of fact, that the figures set forth in finding 10, relating to fiscal years 1913 through 1950, are the “illegal arbitrary percentage reserves” for future markdowns used by them during those years. However, the clear import of the testimony before, and the findings of fact and opinion of, the Board of Tax Appeals is that the figures shown for fiscal years 1913 through 1925 hi finding 10 (which also appear at page 492 of the Board of Tax Appeals decision and in the memorandum) represent the composite of several adjustments made by the Wanamaker companies, in the particular years enumerated, to the inventories, including therein an adjustment to reflect a future markdown for the forthcoming February sale, and that those figures do not represent merely reserves for future markdowns (22 B.T.A. 487, 492).

The function of the adjustments was to produce a “true” lower of cost or market inventory value. Until the fiscal year 1935, plaintiffs used the “cost method, lower of cost or market,” inventory valuation system. The adjustment method used in fiscal 1916-1920 (and for fiscal 1913-1925, and apparently until 1935) was simply a conservative bookkeeping method used as part of the “cost method” system. When the shift was made to the “retail method, lower of cost or market,” inventory valuation system in fiscal 1935, the “old” reserve (on which income tax had been paid by virtue of the Board of Tax Appeals judgment) continued to be deducted from opening and closing inventories. About this time, the reserve was computed by taking a percentage of the total inventory value, the percentage varying only with the age of the merchandise. This was entirely a reserve for future markdowns. This “new” reserve was functionally the same as the “old”; it was a method of conservative bookkeeping used to prevent overstatement of the value of inventory. The confusion stems from the fact that the cost method required item by item adjustments, whereas the new retail method required only that the retail prices of items in the inventory be reduced by the appropriate percentage mark-ons. Because the retail prices of some items were unrealistically high on the day the closing inventory was compiled, plaintiffs decided to continue the practice of making an additional adjustment to avoid any overstatement, and accordingly carried forward the “old” reserve.

Thus, although Philadelphia and New York have failed to prove that the figures in finding 10 represent an unbroken chain of “illegal arbitrary percentage reserves” for future markdowns, they have been able to prove that a reserve was deducted from inventories through 1950, and that however it was computed, it served the same purpose throughout. They have also been able to prove that the reserve became “tax-paid” in the entire amount of the reserves deducted from closing inventories in fiscal 1920.

26. In the Federal income tax returns timely filed by Philadelphia and New York for fiscal 1950, the following amounts of tax were reported and paid:

Philadelphia _$1,321,219.45
New York_ 255,124.47

The Commissioner of Internal Eevenue, on July 20, 1959, gave notice of the following claimed deficiencies in the in come tax liability, for fiscal 1950, of Philadelphia and New York:

Philadelphia_$259,408. 35
New York_ 96,402.17

Philadelphia’s deficiency was paid by it, together with interest thereon in the amount of $148,800.89, on or before November 13, 1959. The deficiency for New York, together with interest thereon in the amount of $55,291.87, was paid on or before December 17,1959, by Philadelphia as successor by merger to New York. The deficiencies set forth above were based upon the adjustments to the opening and closing inventories described in findings 14 through 16, supra, and other adjustments not in issue.

27. On December 22, 1960, Philadelphia filed claims for refund with the District Director of Internal Eevenue at Philadelphia, Pennsylvania, for itself and for New York, as the latter’s successor by merger, in the respective amounts of $384,625.52 and $199,056.92 for the fiscal year 1950. The District Director rejected Philadelphia’s claim on March 13, 1961. The Director rejected Philadelphia’s claim, as successor by merger of New York, on August 18, 1961. Aside from such rejection of said claims there has been no action thereon before either House of Congress or in any executive department. Philadelphia is the sole owner of the claim filed for itself and, by virtue of the merger with New York on December 31, 1956, is also the sole owner of that claim. There has been no assignment or transfer of such claims or of any part thereof or interest thereon.

28. In fiscal year 1951, the year in which plaintiffs’ lhto elections were first accepted, plaintiffs did not elect to value their inventories in all departments on the lhto system. Philadelphia and New York retained the lower of cost or market inventory valuation system, in use prior to fiscal 1948, for some departments, and from the closing 1950 inventory values thus set deducted reserves for future markdowns in the amounts of $54,486.60 and $62,044.20, respectively. Thus, reserves for future markdowns were deducted from the values of the closing inventories of these non-uro departments in determining plaintiffs’ fiscal 1950 Federal income tax liabilities. Plaintiffs admit that the Government is thus entitled to a setoff, and the amounts claimed by them in their claims for refund and in their petitions contemplate a disallowance of these deductions of reserves for future markdowns from the closing inventories for non-uro departments for fiscal 1950.

conclusion or law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are entitled to recover, with interest, and judgment is entered to that effect, with the amount of recovery to be determined pursuant to Pule 47(c) (2).

In accordance with the opinion of the court and a memorandum report of the commissioner as to the amount due thereunder, it was ordered on September 2, 1966, that judgment for the plaintiff be entered for $570,154.41. 
      
       To compute the cost of goods sold deduction from gross income, department stores must use an inventory. Tax law requires that “in any case in which it is necessary to use an inventory, no method of accounting in regard to purchases and sales will correctly reflect income except an accrual method.” Int. Rev. Code of 1939, §41; Treas. Reg. Ill, §29.41 — 2. (Since this case arises under the Internal Revenue Code of 1939, all section references are to that Code and Treasury Regulations 111 issued thereunder unless otherwise indicated.)
      Department stores frequently use an accounting period ending on January 31 as part of sound accounting practice. For businesses with seasonal fluctuations, “the natural business year * * * is the period of twelve consecutive months which ends when the business activities of the enterprise have reached the lowest point in the annual cycle.” Patón, Accountants’ Handbook 5-6 (3d Ed. Ronald Press Co. 1947). The fiscal year is well entrenched in tax law. Int. Rev. Code of 1939, §§41, 48(a) ; Treas. Reg. Ill, § 29.41-4. Throughout this opinion, the prefix “fiscal” or the use of the year without a prefix means the fiscal year ended January 31.
     
      
       The lifo method of inventory valuation uses the cost of goods, rather than the lower of cost or market, and assumes that the last merchandise purchased is the first merchandise sold.
     
      
       Plaintiff actually elected to use the lifo method in some of its departments for the fiscal year 1948 on the condition that the election would be retroactively effective to 1942. It then proceeded to use the lifo method in 1949 and 1950. The Commissioner of Internal Revenue refused to accept the condition of the 1948 election, however, so plaintiff revalued the inventories of the years involved using its prior method. Accordingly, the facts in 1950 may he viewed as though there were no prior “abortive” lifo election.
     
      
       The cost of goods sold is computed by adding the opening inventory to purchases during the year and subtracting the closing inventory. Thus, if opening inventory is $5,000,000 less a $1,000,000 reserve, purchases during the year total $10,000,000, and closing inventory is $6,000,000 less a $1,000,000 reserve, cost of goods sold will be $9,000,000:
      Opening Inventory_$5, 000, 000
      Less: Reserve- 1, 000, 000 $4, 000, 000
      Purchases during year_ 10, 000, 000
      Closing Inventory_ 6, 000, 000
      Less : Reserve_ 1, 000, 000 5, 000, 000
      Cost of Goods Sold_ $9, 000, 000
      In the present case, plaintiff has eliminated the reserve from closing inventory only. The effect is to increase closing inventory in the hypothetical to $6,000,000 and decrease cost of goods sold to $8,000,000. Taxable income will be $1,000,000 more — the full amount of the reserve.
     
      
       See n. 4, supra.
      
     
      
       For a discussion of the difficulties courts have had analyzing “change” problems and of the distinctions that have developed between Commissioner-initiated and taxpayer-initiated “changes,” see Surrey and Warren, Federal Income Taxation 541-542 (1060 Ed. Foundation Press 1962). See also, Austin, Surrey, Warren, and Winokur, The Internal Revenue Code of 1954: Tax Accounting, 68 Harv. L. Rev. 257, 282—286 (1954); Note, 73 Harv. L. Rev. 1564 (1960) (discussing Int. Rev. Code of 1954, § 481, “Adjustments Required by Changes in Method of Accounting”).
     
      
       See n. 4, supra.
      
     
      
       Plaintiff’s opening 1950 inventory tvas valued on the retail method, lower or cost or market, less a reserve. The closing 1950 inventory was valued at cost. Plaintiff asks us only to revalue the opening inventory by the amount of the reserve. It does not ask that the opening inventory be increased to its cost value.
     
      
       As In the present ease, the claims of John Wanamaker Philadelphia, Inc. and John Wanamaker New York, Inc. were consolidated. However, for purposes of appeal, the claims were split, the Philadelphia store claim going to the Third Circuit and the New York store claim going to the Second Circuit. The appeal in the Second Circuit was dismissed in 1933 after the Supreme Court denied certiorari in the Third Circuit appeal.
     
      
       This argument is closely analogous to the tax benefit doctrine first enunciated by the Supreme Court in Dobson v. Commissioner, 320 U.S. 489 (1943), and codified in Int. Rev. Code of 1939, § 22(b) (12), Treas. Reg. Ill, § 29.22(b) (12)-1. under the tax benefit doctrine, gross income of a taxable year does not include amounts recovered that have been deducted in prior years unless the deduction resulted in a tax benefit.
     
      
       For 1916, the Commissioner increased Philadelphia store income by $366,005, the amount of the closing inventory. He made no adjustment to opening inventory. The Board of Tax Appeals decision appears to suggest the contrary, 22 B.T.A., at 502, and defendant urges that plaintiff is accordingly collaterally estopped from asserting otherwise. We think the findings of fact of the Board resolve the ambiguity in plaintiff’s favor. For 1917, the Commissioner, in effect, increased income by $105,705,.60, which is the entire amount of the increase in the reserve. He followed this practice, using a slightly different technique, for the years 1918, 1S19, and 1920. To sum up, by adding to 1916 income the entire reserve as accumulated up to 1916, and by increasing the income of each other year by the amount of the increase in the reserve, he exposed to tax a total of $823,666.35.
     
      
       The record does not show why the Internal Revenue Service allowed plaintiff to use the reserve system which for all years after 1931 (see the discussion of the retail method inventory valuation system, infra) was clearly contrary to the policy in the regulations.
     
      
       Our discussion of “clearly reflect income” is, of course, limited to the treatment of inventories in the year preceding the year of election to lifo. Our statutory reference point is section 22(d) (3) of the 1939 Code and section 29.22_(d) — 4 of Treasury Regulations 111 thereunder. We are aware of cases holding that the Commissioner cannot eliminate a taxpayer’s opening inventory deduction for the year of a change from a cash to an accrual basis simply because there will be a double deduction as to that part of inventory deducted in prior, barred years. Commissioner v. Dwyer, 203 F. 2d 522 (2d Cir. 1953); Commissioner v. Schuyler, 196 F. 2d 85 (2d Cir. 1952). Those cases arose under the general accounting rule which enunciates the “clearly reflect income” standard. Int. Rev. Code of 1939, § 41. The holdings were based, at least in part, on the theory that income for the year of change could not be “clearly reflected” if opening and closing inventories were computed differently. Regarding the double deduction aspect, the Second Circuit said the prior years were barred, and inquiry should be limited to the facts; in the year before the court. It is significant that both cases involved Commissioner-initiated changes. The courts have been very reluctant to allow the Commissioner to pick a year for the change and then condition the change by reference to events in prior years. See the authorities cited in n. 6, supra, for a discussion of the stalemate that resulted from the judicial attitude towards Commissioner-initiated as contrasted with taxpayer-initiated changes.
      The present case is neither a Commissioner-initiated, nor a taxpayer-initiated, change case under section 41i, and may be distinguished from the Second Circuit cases on this ground alone. More appropriate, however, is the fact that in election to lifo cases, the regulations direct us to look to prior years. § 29.22(d)-4. There is no similar mandate under the general accounting provision. Int. Rev. Code of 1939, § 41; Treas. Reg. Ill, § 29.41.
     
      
       Por example, under tlie tax benefit approach, n. 10 supra, reference is made to earlier years to determine ■whether the taxpayer obtained a tax benefit. Treas. Reg. Ill, § 29.22(b) (12) — 1. Similarly, in cases in which a taxpayer “restores [a] substantial amount held under claim of right,” reference back is required to determine whether “an item was included in the gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item.” If it was, the taxpayer is entitled to an adjustment in the year of restoration. Int. Rev. Code of 1954, §§ 1341-1342.. See North American Oil Consolidated v. Burnet, 286 U.S. 417 (1932). Basis computations, of course, are very common and always necessitate a look back. Int. Rev. Code of 1939, § 111.
     
      
       This action was taken, on plaintiff’s motion to consolidate the actions and to amend the petition, because of two rules. The first rule is that a corporation as successor by merger is the proper party to maintain a cause of action on a claim for refund of tax paid by or for a corporation which was merged into it. Seaboard Air Line Railway v. United States, 256 U.S. 655 (1921); Kingan & Co. v. United States, 71 Ct. Cl. 19, 44 F. 2d 447 (1930); and Consolidated Paper Co. v. United States, 75 Ct. Cl. 215, 59 F. 2d 281 (1932), cert. denied, 288 U.S. 615 (1933). The second rule is that a taxpayer, while entitled to file several claims for a given year, may maintain only one suit for the recovery of taxes paid by it for such taxable year and that failure to include all claims relating to the taxable year in the single suit precludes recovery on claims not included. Chicago Junction Railways v. United States, 80 Ct. Cl. 824, 10 F. Supp. 156 (1935); see also Guettel v. United States, 95 F. 2d 229 (C.A. 8th 1938); United States v. C. C. Clark, Inc., 159 F. 2d 489 (C.A. 5th 1947) and Hunt’s Estate v. United States, 309 F. 2d 146 (C.A. 5th 1962).
     
      
       Hereafter, the prefix “fiscal year” or “fiscal” means the fiscal year ended January 31.
     
      
       Plaintiffs, at various times Rave called these “Illegal Arbitrary Percentage Reserves,” “Room Inventory Adjustments and Corrections,” “Allowances,” and, since fiscal 1937, “Season and Special Reserves.” Defendant argues that those reserves should be called “Percentage AUowanees for Estimated Obsolescence.”
     
      
      
         Parentheses around the figures set forth indicate they were written in red. The comments to the right of the figures have been added for clarification.
     
      
       The only other document In evidence here is a certain memorandum, explained with more particularity in footnote 10 to finding 10, footnote 19 to finding 24, and in findings 22, 23, and 25, which was also before the Board of Tax Appeals. .Neither party has introduced any evidence to connect defend1ant’s exhibit 1, set forth in finding 6, with that memorandum, which is defendant’s exhibit 2.
     
      
       Parentheses indicate figures in red.
     
      
       The arbitrary reserves for future markdowns were, at this time, made under the captions of “Season” reserve and “Special” reserve. The amount of $5,852.22 represents the total of the multiple percentage reserves for future markdowns for Department L for 1949. The Special reserve is a figure relating back to fiscal 1937. There appears, for example, in the above inventory sheet relating to Department L for 1949, the amount of $484. The Special reserve came into being in fiscal year 1937, the first year plaintiffs computed the reserves for future markdowns on a multiple percentage instead of a single percentage system. In some departments, as happened in Department L, the new method of computing the reserves for future markdowns resulted in a deduction of a lesser amount than had been deducted in the prior fiscal year (1936) under the old single percentage figure method. The difference between the two methods of computation was frozen in the first year that the new method was used and was thereafter carried forward, as a permanent deduction each year, until the department was closed or ceased to operate. The reason for the creation of the Special reserve was to avoid paying departmental buyers unreal bonuses on profits arising solely from the change in computational methods. Special reserves were only created by Philadelphia and not by New York since the differences between the two methods of computation in 1936 and 1937, in New York, were insignificant.
     
      
       Parentheses indicate figures in red.
     
      
       When examining the pattern of Special reserves from 1937 through 1949, it will, of course, be seen that they have consistently decreased since 1937 with the exception of fiscal 1944 through 1946. The decrease is due to the closing of individual departments having such Special reserves. The exception noted was caused by the creation of an Oriental Art Department during fiscal year 1944. Upon creation of that department, an arbitrary reserve for future marlrdowns was created to the extent of the value of the inventory. The department ceased to exist in fiscal 1946.
     
      
       The figures there relating to fiscal 1913 through 1925 had been taken from a memorandum made from inventory summary sheets and placed on the fly leaf of the Philadelphia corporation ledger. Those figures appeared under the headings “Boom Inventory Adjustments and Corrections” and “Inventory Adjustments and Corrections Mdse Office New York” relating to Philadelphia and New York, respectively. See finding 25 ; see also findings 7, 22, and 23.
     
      
       The lifo method of Inventory valuation uses the cost of goods, rather than the lower of cost or market, and assumes that the last merchandise purchased Is the first merchandise sold.
     
      
       Plaintiffs’ books of account for fiscal years 194S through 1950 continued to show the inventories valued according to the method In use prior to fiscal year 1948, t.e., the inventory value was the lower of cost or market on the retail method. The lifo value used on plaintiffs’ tax returns for fiscal 1948 through 1950 was determined by applying a “lifo reserve,” which was separately computed and maintained on plaintiffs’ books.
     
      
       To readjust the Inventory values it was necessary to reapply the previously established lifo reserves in order to ascertain the actual lower of cost or market figure. See footnote 12 to finding 12.
     
      
       Prior to the entry of this figure on the books, it had been reduced by Special and Season reserves in the amount of $675,077.72.
      $5,088,968.23 per inventory records.
      —675,077.72 per inventory records.
      4,413,890.51 lower of cost or market per books.
     
      
       The plaintiff entered its inventories on the books on the basis of lower of cost or market. To arrive on the books at a valuation of the inventories on the basis of lifo, a reserve system was used. The amounts labeled  are the amounts of the lifo reserve on the boobs used in this particular year to reduce the lower of cost or market valuation to lifo.
     
      
       Prior to the entry of this figure on the books, it had been reduced by Special and Season reserves in the amount of $733,772.27.
      $5,362,213.31 per inventory records.
      —733,772.27 per inventory records.
      4,628,441.04 lower of cost or market per books.
     
      
       Similar adjustments were made to New York’s inventories on its fiscal 1950 tax return.
     
      
       Similar adjustments were made to New York’s closing inventory.
     
      
       This figure consists of the following:
      $733,772.27 Season and Special reserves for all departments, per inventory records (see footnote  to table in finding 15).
      54,486.60 Less: Season and Special reserves for non-LIFO departments, per inventory records.
      679,285.67 Reduction in inventory value of lifo departments to bring them down to market, caused by Season and Special ■reserves.
      262,089.13 Reduction in inventory value of luto departments to bring them down to market, caused by other factors.
      941,374.80
     
      
       See finding 30.
     
      
       Plaintiffs’ 1921 tax liability was finally adjudicated in 1927. 8 B.T.A. 864. In that litigation the reserve method was not challenged.
     
      
       Certain other reserves, set forth in the tables on the lower half of page 492 of 22 B.T.A., were not in controversy. While they related to inventories, they were not relevant to the computations leading to a determination of the lower of cost or market, but rather were general reserves placed upon the books for the purpose of being still more conservative in the valuation of assets.
     
      
       Tlie summary sheets reflected the total of adjustments necessary to reduce preliminary inventory values to the “true” lower of cost or market values-
     
      
       Philadelphia and New York were, however, allowed to deduct $366,005 and $289,600, respectively. The Commissioner explained those allowances, as follows: “The error in your inventory as at the beginning of the taxable year results in an increase of the cost of goods sold. This amount has been deducted from the net income subject to tax.” (22 B.T.A. 493.)
      There is some language in the Board of Tax Appeals decision at 502 of 22 B.T.A. that might suggest that the Commissioner made a redetermination of the opening inventory of fiscal 1916 as well as the closing. The weight of the evidence shows, however, that in increasing the taxable income of 1916 for Philadelphia, for example, by $366,005 the Commissioner left alone the opening inventory of $360,407.36. In other words, by disallowing the reserve deduction, from closing inventory, but allowing it from opening, the Commissioner exposed to tax the $360,407.36 opening inventory deduction plus the $5,597.64 increase during the year.
     
      
       Plaintiffs’ counsel asserted that the lost sheets had been turned over to the Commissioner’s representatives andi that plaintiffs had a receipt for the same. However, the receipts were not introduced into evidence. Neither were the Revenue agents concerned subpoenaed. The lost sheets, in conjunction with the testimony of Barker and Appel, might have sustained plaintiffs’ burden of proof of entitlement to the particular deductions claimed. In their absence, plaintiffs had relied: on the memorandum and general testimony as to how those computations were arrived at (22 B.T.A. 487, 500).
     