
    FOOD MACHINERY AND CHEMICAL CORPORATION, A CORPORATION v. THE UNITED STATES
    [No. 147-54.
    Decided December 1, 1960.
    Plaintiff’s motion for rehearing denied March 1, 1961]
    
    
      
      Harry R. Borrow for the plaintiff. Robert W. Morrison and Pillsbury, Madison <& Sutro on the briefs.
    
      Jerome S. Hertz, with whom was Assistant Attorney General Charles K. Bice, for the defendant. James P. Garland and Philip B. Miller on the brief.
    
      
       Plaintiff’s petition for writ of certiorari denied by tbe Supreme Court, 808 U.S. 918.
    
   Littleton, Judge (Bet.),

delivered the opinion of the court:

Plaintiff, an accrual basis taxpayer, sues to recover income and excess profits taxes paid for its fiscal year ended September 30, 1945 (hereinafter called fiscal 1945). The taxes in question, in the amount of $744,548.35, were paid upon a profit allowance of $906,621.81 received by plaintiff on a contract termination claim which was actually paid in 1946 and 1947. The issue in the case is whether plaintiff was properly required by the Commissioner of Internal Revenue to accrue this sum as income for fiscal 1945, when its contract was terminated. Plaintiff claims the sum was not properly accruable until 1946.

It is clear that if, in fiscal 1945, plaintiff had a fixed right to receive a reasonably ascertainable amount as a profit allowance, that amount was properly accruable in that year. Continental Tie and Lumber Co. v. United States, 286 U.S. 290. When books of account are kept, and tax returns prepared, on the accrual, rather than cash, basis, the time when a right to receive or a liability to pay an ascertainable amount becomes fixed, and not the time of actual receipt or payment, is decisive of the proper time for accrual. Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184-5; Security Mills Co. v. Commissioner, 321 U.S. 281.

The question here, therefore, is whether in fiscal 1945 plaintiff’s right to receive payment on its termination claim was a fixed right to receive a reasonably ascertainable amount.

Plaintiff, a Delaware corporation with its principal office at San Jose, California, was engaged in the manufacture of amphibian tanks and spare parts under fixed-price contracts with the Department of the Navy during World War II.

The eleven contracts involved in this case were entered into between plaintiff and the United States Navy’s Bureau of Ships from November 1943 to July 1945. They were all war contracts within the coverage of the Contract Settlement Act of 1944, 58 Stat. 649, 41 U.S.C. §101, and of the Joint Termination Regulation, as amended.

Eight of the contracts contained termination clauses providing for fair compensation, including a profit allowance, to be paid to plaintiff in the event the contracts were terminated for the convenience of the Government. The parties were to attempt to negotiate the amount of the profit allowance, but if no agreement could be reached, plaintiff was to receive a profit equal to 2% of the cost of material purchased by plaintiff but not yet processed, plus 8% of the cost of work in progress, but not more than 6% of the total of the above costs. Plaintiff’s records indicated what material was purchased for each contract, but items common to several contracts were physically commingled. As work in process, plaintiff’s books showed labor, burden and raw materials fabricated by plaintiff, but not material furnished by plaintiff to its subcontractors, or purchased components and material, which plaintiff placed in the finished goods account when items were completed. At any given time, only a physical count, and not plaintiff’s records, could have disclosed the actual work in process. No effort was made by plaintiff to determine the actual amount of work in process on the contracts here involved.

Plaintiff’s eleven contracts were terminated under the provisions of the Contract Settlement Act of 1944 and the Joint Termination Regulation, by termination notices issued between July 20 and August 30,1945.

Plaintiff had become aware, early in 1945, that its contracts might be terminated. On June 20 and 21 and during the week of July 2, pretermination conferences were held between plaintiff’s representatives and representatives of the Bureau of Ships, headed by Captain Rosenstein, the contracting officer in charge of plaintiff’s contracts. The parties discussed means of calculating costs due to cancellation, the manner of counting and classification, preservation and disposal of inventories, the rate of profit plaintiff was to receive, and the approximate amounts involved. Plaintiff proposed a 6.4% rate of profit; the Navy offered the terms generally-used by it of 3% on materials and purchased parts and 10% on work in process. Plaintiff’s estimate of work in process as at least 25% of its inventories would have yielded an overall rate of 4.75% at the Navy’s terms. Discussion led to an oral agreement on a profit rate of 4.875%, upon which basis plaintiff would submit its termination claims.

On July 19,1945, the Bureau of Ships submitted to plaintiff a draft pretermination agreement referring to five of plaintiff’s contracts. The draft provided a 4.875% rate of profit which was to include packing expenses, and contained extensive provisions relating to inventories, classification of items and pricing of materials.

Plaintiff did not reply formally to the July 19 proposal and no pretermination agreement was executed, for the war had ended and the contracts were terminated. Plaintiff’s post-termination activities proceeded under the Joint Termination Eegulation.

When plaintiff received the termination notices, work was stopped, suppliers and subcontractors notified to stop work, and preparations for inventory counts made. Work in process then on feed lines of subcontractors and subassembly lines of plaintiff’s largest plants was reviewed with Navy representatives and disposition of some of this material was determined. Subassemblies not used as such in spare parts were disassembled and their parts returned to stock bins. Semifabricated pieces were scrapped, and materials in process returned to stock bins. The return of parts and materials to the bins was with the approval of the Navy.

Under the circumstances, when plaintiff’s inventory was taken, it was not possible to distinguish between purchased parts and raw materials on the one hand and work in process on the other.

On August 29,1945, plaintiff asked to be permitted to file two joint inventory and settlement proposals, each covering four of the terminated contracts. Captain Rosenstein, by letter of September 21,1945, approved plaintiff’s request.

At a meeting on September 18, 1945, plaintiff’s president and Captain Rosenstein reached an understanding that the 4.875% profit rate remained mutually agreeable and would be claimed by plaintiff and allowed by Captain Rosenstein. Captain Eosenstein’s letter of September 21 confirmed this understanding. It was also understood that the rate of profit was subject to review by the Government’s Settlement Eeview Board in Washington, D.C.

This, then, is the stage to which matters had progressed when plaintiff’s fiscal year came to an end on September 30, 1945.

On November 12, 1945, plaintiff requested permission to consolidate some of its termination claims, setting August 17,1945, as consolidated termination date. Three days later, it asked to be permitted to submit one settlement proposal covering all its terminated contracts, apportioning charges fro rata. This requested procedure was authorized verbally by Captain Rosenstein on or about November 26, which authorization was confirmed by the Supervisor of Shipbuilding by letter dated December 7.

On November 27 plaintiff filed its first settlement proposal. The claim stated a total inventory of metals, purchased parts, finished components and work in process of $18,618,-592.43. Applying the 4.875% rate of profit, plaintiff claimed a profit of $907,656.38-.

The claim was received by the Bureau of Ships’ Contract Termination Section in Washington on or about January 3,

1946. With the claim was a report dated December 14,1945, by the Navy’s Supervisor of Shipbuilding responsible for plaintiff’s contracts. The report stated that Navy personnel had examined the inventories and checked prices, finding materials in good condition and properly allocable to the terminated contracts. The report did refer to such questionable items in the claim as plaintiff’s failure to deduct cash discounts from costs. Since plaintiff waived other items of cost which it might have claimed, no adjustment was required. The report also noted that the requested profit was based on the rate agreed upon at the meeting of September 18, 1945, although purchased parts constituted a larger percentage of total inventories than appears to have been anticipated during the negotiations about profit rate.

At a meeting on January 8, 1946, between representatives of plaintiff and of the Navy, plaintiff was asked to apply for partial payment of its claim. Although plaintiff refused to apply, partial payment in the amount of $18,500,000, representing approximately 95% of plaintiff’s total claim was received, approved, and paid to plaintiff’s president on January 10. The amount paid was less than the sum claimed for inventories and did not represent any allowance for profit or disposal credits.

At the January 8 meeting, plaintiff was also asked to supply material which would explain the variation between the estimated figure of 25% representing work in process and the 7% reflected in plaintiff’s claim filed November 27,1945. In a letter dated February 13,1946, plaintiff pointed out that it had included as work in process only such items as were unquestionably that, while much work which could properly have been included was omitted due to the impossibility of segregating and identifying it. Plaintiff noted additional items which would have been properly classified as work in process but which had not been so classified, and also agreed to waive certain substantial items of cost.

On March 26, 1946, Captain Eosenstein submitted to the Settlement Eeview Board written proposals for settlement of plaintiff’s claim. Except for freight charges in the amount of $21,222, Captain Eosenstein recommended approval of plaintiff’s claim as submitted. This exception reduced the profit allowance to $906,621.81. The Board’s approval was given on March 27, and its action was in turn approved by the Chief of the Bureau of Ships.

An April 11, the Navy submitted to plaintiff for execution two supplemental agreements covering plaintiff’s termination claim as approved, and plaintiff returned executed copies on May 21. Payments of the amounts due on these contracts, less the $18,500,000 already paid on January 10, were made to plaintiff on June 12 and 13, together with interest from the date of the agreements to the date of payment.

These two agreements, pursuant to the claim filed November 27,1945, covered only plaintiff’s own claim, and did not include subcontractors’ termination claims or settlement expenses incurred by plaintiff after October 1,1945. Between November 27,1945, and October 22,1946, plaintiff submitted ten additional claims, which covered these additional claims and expenses.

The tenth interim settlement proposal, submitted on September 9, 1946, included a claim for settlement expenses incurred by plaintiff since October 1,1945, totaling $590,077.65.

Plaintiff’s twelfth and final settlement proposal was submitted to the Navy on October 22, 1946. Final disposition of plaintiff’s claims was made on the basis of this proposal.

■ The total of plaintiff’s previously allowed inventories of metals, purchased parts, finished components and work in process was $18,597,370.43. A profit of 4.875% thereon, totaling $906,621.81, as allowed on plaintiff’s first claim, was included. This produced a total of $19,503,992.24. After a deduction of $283,841.87 for disposal credits, a balance to be claimed of $19,220,150.37 remained. Various interest charges totaling $160,745.10 were added, as was an allowance of $590,077.65 for settlement expenses, as set forth in the tenth interim proposal.

On November 19, the Bureau of Ships’ contracting officer recommended approval of the final proposal, and the Settlement Eeview Board approved it on November 26. Final settlement was approved by the Chief of the Bureau of Ships. Execution of the final contracts and final payment to plaintiff of the balance due it were completed by January 9, 1947.

The $906,621.81 allowed to plaintiff as profit on its terminated contracts was included in plaintiff’s ordinary net income, surtax net income and excess profit net income for its taxable year ending September 30, 1945. Plaintiff filed a timely claim for refund of income and excess profits taxes in the amount of $652,767.67 for that year, on the grounds that the $806,621.81 profit was not properly includible in that year’s income. The Commissioner of Internal Bevenue disallowed plaintiff’s claim on April 24, 1952, and plaintiff’s petition was timely filed in this court on April 8, 1954.

It is in light of these facts and circumstances that we must determine whether plaintiff’s right to receive termination payment from the Government was fixed in fact and in amount in its taxable year ending September 30,1945.

There is no dispute between the parties as to the fact of plaintiff’s right, in 1945, to receive some payment from the Government. The parties differ on the question of whether this right was sufficiently fixed in amount.

Plaintiff says that the right to receive a profit allowance was not reasonably ascertainable in amount until 1946, when its termination claims were settled. It argues that although the Contract Settlement Act gave it the right to fair compensation for termination of its contracts, the Act did not establish a right to receive any ascertainable amount.

Defendant maintains that the amount payable to plaintiff was readily ascertainable from its books and records as of the close of its taxable year. Defendant says that plaintiff had both a contract and a statutory right to fair compensation, including profits, for work undertaken prior to the date of termination. While the contracts and the Contract Settlement Act provided that negotiated settlements should be attempted, those contracts which contained the Uniform Termination article specified that, if agreement could not be reached, plaintiff was entitled Sto a profit allowance of 2% of the cost of purchased articles or materials, plus 8% of the cost of work in process, not'to exceed 6% of total costs.

Section 6 of the Act, 41 U.S.C. § 106, requires contracting agencies to provide speedy and fair compensation for termination of war contracts. 41 U.S.C. § 106(a). Each agency is required to establish methods and standards for determining fair compensation.

on the basis of actual, standard, average or estimated costs, or of a percentage of the contract price based on the established percentage of completion of work tuider the terminated contract, or on any other equitable basis, as it deems appropriate. 41 U.S.C. § 106 (b).

Such methods and standards are to take into account certain specified items of cost, 41 U.S.C. §106 (d) (l)-(7), and to exclude others, § 106(d) (i)-(iv).

The agency may settle a termination claim by agreement with the contractor, or by unilateral determination of the amount due on the claim, or by a combination of both methods. 41 U.S.C. § 106(c). No settlement providing payment of more than $50,000 is to be binding on the Government until reviewed and approved by a Settlement Ee-view Board. 41 TJ.S.C. § 106(c). Claims are to be settled by agreement to tbe maximum extent feasible. 41 TJ.S.C. § 106(e).

Plaintiff argues that, far from establishing definite and precise standards for determining fair compensation, the Act gives Government agencies broad discretion in settling termination claims. Plaintiff says that the amount of compensation to which it was entitled could not be determined from an examination of the Act, nor even from an examination of plaintiff’s books and records, and that the amount of compensation could not be known until a negotiated settlement of plaintiff’s claims had been reached.

As we have said, plaintiff does not deny that it had a right to receive something, but it says that the amount remained in doubt at the close of fiscal 1945. Plaintiff says that the following factors rendered doubtful the amount it was to receive: the Contract Settlement Act did not provide any formula for determining fair compensation; questions concerning the form of plaintiff’s claims and the method of allocating items among the various contracts had not been settled; difficulties in classifying plaintiff’s inventories as raw materials, purchased parts or work in process and in determining allowable costs, led to uncertainty in the calculation of a proper profit allowance; in any event, the amount of the profit allowance was not fixed until approved by the Navy’s Settlement Review Board and the chief of the Bureau of Ships.

Continentdl Tie and Lumber Co. v. United States, 286 U.S. 290, is said by defendant to be controlling here. In that case, an accrual basis taxpayer challenged the Commissioner of Internal Revenue’s inclusion of the amount of an award of the Interstate Commerce Commission under § 204 of the Transportation Act of 1920, 41 Stat. 456, 460, as income for the year in which the Act was passed, rather than the year in which the amount of the award was determined and paid.

The Supreme Court stated that the problem presented in the Oontinentdl Tie case was

whether the taxpayer had in its own books and accounts data to which it could apply the calculations required by the statute and ascertain the quantum of the award within reasonable limits. 286 U.S. at 296.

§ 204 of the Transportation Act provided for an award and payment to a railroad which, during a period of federal control of some railroads at the time of the first world war, had operated its own road but had competed for traffic with a railroad which had been under federal control, and had sustained a deficit in operating income during the time when it operated its own railroad.

The Interstate Commerce Commission was to compare the results of the railroad’s operation during the period of federal control with those during a defined test period, and, if the results for the period of federal control were less favorable, to make an award in an amount calculated in the manner prescribed by the section.

The Transportation Act became effective February 28, 1920, and on June 10 the Interstate Commerce Commission issued general instructions for carrying § 204 into effect. The award and payment were made to the taxpayer in 1923, and the taxpayer claimed that the sum should be deemed income in that year, rather than in 1920, because the amount depended upon so many contingencies that no reasonable estimate thereof could have been made in 1920.

The Court held the amount properly accruable in 1920, stating:

the function of the Commission under the act was ministerial, to ascertain the facts with respect to the carrier’s operating income by a comparison of the experience during the test period with that during the term of federal control. The right to the award was fixed by the passage of the Transportation Act. What remained was mere administrative procedure to ascertain the amount to be paid. Petitioner’s right to payment ripened when the act became law. 286 U.S'. at 295.

The Court went on to point out that the railroad kept its accounts according to standards prescribed by the Interstate Commerce Commission, and that these accounts were the source of the information on winch the amount of the award would be based. Although general principles for the determination of relevant factors had been formulated by the Act, there were questions of fact to be resolved by the exercise of opinion and judgment. The Court pointed to the presence of questions concerning the time for closing out reserve accounts, the allocation to the period in question of sums expended for maintenance, the price at which renewals and replacements should be charged in view of rising costs, and the allowance to be made for differing efficiency of labor in the two relevant periods. These questions seem quite similar to the questions concerning allocation of costs, subcontract charges, and inventories, and concerning an effective termination date, which existed in this case at the close of the taxable year in question.

Despite the existence of these questions, the Court thought that

it was possible for a carrier to ascertain with reasonable accuracy the amount of the award to be paid by the Government. Subsequent to its order of June 10, 1920, the [Interstate Commerce] Commission made no amendment or alteration of the rules with respect to the information to be furnished under § 204. Obviously the data 'had to be obtained from the railway’s books and accounts and from entries therein all made prior to March 1, 1920: These accounts contained all the information that could ever be available touching relevant expenditures. 286 U.S. at 291.

We think, therefore, that, under the reasoning of the Continental Tie case, the cost and inventory figures, which were to constitute a part of the basis for calculating plaintiff’s profit allowance, were ascertainable within reasonable limits during the taxable year in question.

However, in this case, the amount which would be paid to plaintiff did not depend solely upon the cost and inventory figures contained in its books and accounts, or upon quantities which could be reasonably calculated on the basis of those figures and upon physical inventories on hand. Under the Contract Settlement Act of 1944, the rate of profit to be allowed was left for negotiation by the parties. It was to be a figure which would provide “fair compensation” to the contractor. While the questions in this case as to the amounts of cost and inventory items were quite similar to the questions which existed in Continental Tie as to the calculation of certain factors, the difference between the cases lies in tbe fact that, under the Transportation Act, once such calculations were made, the amount of the award was established, while under the Contract Settlement Act, after the determination of cost and inventory figures has been made, there still remains for determination a factor which is not established by the Act, that is, the rate of profit to be allowed upon the cost and inventory figures. Thus, under the Contract Settlement Act, the taxpayer’s books and accounts and inventories do not contain all the material, however debatable its treatment may be, relevant to a determination of the amount which it will receive, as they do under the Transportation Act.

We must, then, consider whether the rate of profit which plaintiff was to receive had been sufficiently established prior to the close of fiscal 1945 to permit plaintiff’s profit allowance to be reasonably ascertained. Plaintiff says that the rate of profit was not fixed until it was approved by the Settlement Beview Board, as required by § 6(c) of the Contract Settlement Act and paragraph 582.1 of the Joint Termination Begulation. Approval by the Settlement Be-view Board did not take place until March 27, 1946. We think, however, that final, formal approval of the proposed settlement was not necessary to give it sufficient definiteness in amount. Under paragraph 503(a) of the Joint Termination Begulation, the “sole function of the settlement review board is to determine the over-all reasonableness of the proposed settlement from the standpoint of protecting the Government’s interest.” The substance of the settlement proposal was to be and in this case had been worked out between the contractor and the Government’s contracting officer. Their agreement, reached with no visible discord, and giving rise to no apparent question as to over-all reasonableness, established plaintiff’s right in a reasonably ascertainable amount. We do not think that lack of formal approval by the Settlement Beview Board deprives the amount of sufficient certainty any more than lack of the action by the Interstate Commerce Commission in making an award to the railroad, which action was admittedly necessary before any payment could be made, affected the railroad’s right in the Continental Tie case. See also Commissioner of Internal Revenue v. Dumari Textile Co., 142 F. 2d 897, at 899-900, 47 B.T.A. 639, at 646.

Plaintiff says that it was not until the completion of negotiations between it and the Navy some time in 1946 that the amount of profit allowance was determined. The Navy’s contracting officer did not submit plaintiff’s proposal to the Settlement Review Board for approval until March 26,1946. Plaintiff says that this is because he had been awaiting the February 13 letter from plaintiff justifying the claimed rate of profit, which had been questioned at the January 8 meeting.

We note, however, that a profit rate of 4.875% had been first suggested and tentatively agreed upon in the course of the pretermination conferences which took place in June and early July of 1945. Defendant’s representatives prepared, and submitted to plaintiff on July 19, a draft of a pretermination agreement incorporating the 4.875% profit rate. While this draft was not in final form and did not bind the parties, and in fact no pretermination agreement was ever entered into between the parties, representatives of the parties met, after termination of the contracts, on September 18 and concluded that the 4.875% profit rate previously agreed upon remained mutually agreeable. The Government contracting officer’s letter of September 21 to plaintiff stated:

the Contracting Officer on behalf of the Bureau of Ships, and Mr. Davies on behalf of the Contractor, agreed that this profit figure of 4.875%, which had previously been agreed upon for purposes of the pre-termination agreement, was mutually agreeable and would be claimed and allowed in the termination claims submitted by the Contractor under the subject contracts.

It is true that plaintiff did not actually submit its first termination claim until November 27, 1945, and that in January 1946 the contracting officer requested information from plaintiff in support of its claim. No challenge to the profit rate was made; the purpose of the contracting officer’s request for material justifying the profit rate appears to have been to have available in the record an explanation of why the plaintiff’s accounts reflected work in process of only 7%, whereas the profit rate agreed upon was predicated upon work in process somewhat in excess of 25%. The record does not show that any suggestion was made that the profit rate be reconsidered after September 30, 1945, nor that the profit rate was in fact reconsidered at any time. Plaintiff asserts that even if the rate of profit was sufficiently settled, no specific amount representing the costs to be allowed, to which the rate of profit was to be applied, had been mentioned or agreed upon by the parties. We think, however, that the teaching of the Continental Tie case is that no specific amount need be mentioned, as long as the information relevant to determination of the amount is available. We think that information was available in this case.

We think that under the facts and circumstances of this case, negotiations between the parties had reached a stage of sufficient agreement by the end of fiscal 1945 for the amount of plaintiff’s profit allowance to be considered reasonably ascertainable at that time.

Plaintiff’s principal reliance is on two cases, Breeze Corporations, Inc. v. United States, 127 Ct. Cl. 261, 117 F. Supp. 404, and Apex Electrical Mfg. Co., 16 T.C. 1171, affirmed per curiam, 202 F. 2d 151 (6 Cir.).

In the Breeze case, an accrual basis taxpayer, a second tier subcontractor under war contracts which were terminated in 1945, had included in its tax returns for 1945 an item of some $75,000, representing an amount it believed would be due to it from the first tier subcontractor on the terminated portions of its contracts. The taxpayer subsequently claimed that its accrual of the $75,000 in 1945 had been erroneous because it had no fixed right to that or any reasonably ascertainable amount during the year 1945.

The $75,000 represented the estimated value of certain pumps which were manufactured by the taxpayer. The taxpayer was engaged in manufacturing pumps of the kind in question under a prime contract with the Navy as well as under its subcontract, and there was a question as to whether the pumps were properly allocable to the subcontract or to the prime contract. The Government claimed that because the first tier subcontractor had not denied the claim in 1945, the taxpayer had a fixed right to payment in that year.

The court noted, however, that the taxpayer’s estimate of inventory applicable to the terminated contracts had not been approved or allowed in 1945 either as to its value or as to its allocability to the terminated contracts. The court found that voluminous correspondence, many conferences and partial settlement agreements, a complete denial of the claim at one time and negotiations continued for several years resulting in a settlement for one-third of the original claim sufficiently demonstrated “there was a serious dispute as to whether any or all of the pumps were allocable to the terminated contracts.” 127 Ct. Cl. at 272. The court concluded, therefore, that it was “apparent that both the right to payment and the amount, if any, payable remained uncertain until settlement of the dispute in 1949.” 127 Ct. Cl. at 273.

Here there was no “serious dispute” as to allocation of any items of inventory. Though there would have been substantial difficulty in physically separating materials from work in process here, the necessity for so doing had been obviated by the agreement at an early stage in the negotiations that the profit allowance would not be based upon different percentages of the costs of materials and work in process, but rather upon an agreed-upon percentage of total costs. In Breeze the parties at the close of the taxable year in question stood in conflict as to the allocation of the pumps; in the case at bar the only matters undetermined at the close of fiscal 1945 were of the nature of those described by the Supreme Court in Continental Tie as not making it impossible to determine with reasonable accuracy the amount of the payment to be made by the Government. 286 U.S. at 297.

The Apex Electrical Mfg. Co. case, 16 T.C. 1171, is of no help to plaintiff, since in that case the fact of liability itself was denied during the taxable year in issue, and the court found that there had been no fixed right to receive any amount.

Globe Corporation, 20 T.C. 299, also relied on by plaintiff, is not helpful either, since, although the taxpayer there, in the taxable year in question, did, as plaintiff says, have a right to receive fair compensation, the negotiations between the parties had not in that year reached any agreement, however tentative, on the amount, or method, of computing the amount of fair compensation.

We have carefully examined all of the other cases cited by plaintiff, but it is clear that they do not support plaintiff’s position in this case, and they do not warrant discussion.

Plaintiff is not entitled to recover, and its petition will be dismissed.

It is so ordered.

LaeamoRe, Judge; Madden, Judge; and Jones, Chief Judge, concur.

Whitaker, Judge,

dissenting:

I regret that I am unable to agree with the opinion of the majority.

That opinion correctly says that “the time when a right to receive or a liability to pay an ascertainable amount becomes fixed * * * is decisive of the proper time for accrual” ; but I disagree with the statement that the amount of plaintiff’s profit was ascertainable in the fiscal year ending in 1945.

The contracting officer had agreed with plaintiff that its profit should be a certain percentage of the cost of the work done, but this was subject to approval by the Settlement Eeview Board. On review, the contracting officer’s superiors in Washington demanded an explanation of the difference between the estimated figure of work in process of 25 percent, on which the agreed percentage of profit had been based, and the actual figure of 7 percent. Most of the contracts provided for a profit, in the absence of an agreement, of 2 percent of the cost of materials purchased, but not in process, plus 8 percent of the cost of work in process. The profit agreed on between plaintiff and the contracting officer was based on the estimate that 25 percent of work was in process. It was not until after this variance between the estimate of work in process and the actual amount had been explained that the Settlement Review Board approved the rate of profit tentatively agreed upon. This was on March 27, 1946, long after the close of the fiscal year ending in 1945.

It was impossible to ascertain the amount of plaintiff’s profit until the rate or percentage to be used in computing it was known.

The fact that the rate of profit was not determined prior to September 80, 1945, is an essential difference between this case and Continental Tie and Lumber Co., v. United States, 286 U.S. 290.

In Continental Tie only two factors had to be considered in determining the amount of the award: (1) income figures derived from the books of the plaintiff, and (2) the calculations required by section 204 of the Transportation Act of 1920, 41 Stat. 456, 460. Under that Act these two factors were fixed, with nothing left to be done except the ministerial act of computing the award. No action of either party could have varied these factors; hence, no action of either party could have varied the amount of the award. Not so in the present case. Although the cost figures might have been reasonably ascertainable from plaintiff’s books, there was no statutory formula nor an agreed percentage to apply to these figures. On the contrary, there was a variable profit percentage rate to be determined by negotiation and settlement between the parties, if possible. Therefore, unless a settlement had been reached, which was binding on the parties, or it was definitely determined that none could be reached, it cannot be said that the amount to which plaintiff was entitled was capable of being reasonably ascertained. The profit rate tentatively agreed upon could have been revised prior to September 30,1945, and, hence, the amount of the award was not 'known prior to that date. As pointed out above, this was not the case in Continental Tie; therefore, that case is not controlling.

In the opinion of the majority, it is stated that the tentative profit rate was not challenged. This is erroneous. In finding 35, it is said that at the January 8, 1946 meeting, the reasonableness of the 4.875 percent rate was questioned, because it had been predicated on an estimate of the percentage of plaintiff’s inventory consisting of work in process which was at variance with the percentage shown in plaintiff’s settlement proposal. If plaintiff had been unable to explain the discrepancy, in all probability defendant would have found the 4.875 percent rate unreasonable, and would not have approved it.

For the reasons stated, I respectfully dissent.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Roald A. ITogenson, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is and was a Delaware corporation, being the surviving corporation in a statutory merger of Food Machinery Corporation and Westvaco Chemical Corporation. Reference to plaintiff includes the predecessor Food Machinery Corporation. Plaintiff’s principal office is and was at San Jose, California.

2. The taxes involved in this case are corporate income and excess profits taxes paid by plaintiff to defendant for its fiscal year beginning October 1,1944, and ending September 30,1945. Its tax returns for this year were due on December 15, 1945, but plaintiff requested and was granted extensions of time and actually filed the returns on May 17, 1946, with the Collector of Internal Revenue for the First District of California. Plaintiff’s books of account are and were maintained on the accrual method of accounting, and its returns were prepared accordingly.

3. During the tax year ended September 30,1945, in addition to its other activities, plaintiff was engaged in the manufacture of amphibian tanks (Landing Vehicles Tracked) and spare parts under contracts with the Navy Department. Before plaintiff had completed performance, certain of its contracts were fully or partially terminated by action of the Navy. These uncompleted contracts so terminated, together with a description of the contract, the original amount of contract, the date of termination notice and the extent of termination, were as follows:

Under the column “Extent of Termination”, the term “Partial” means that some deliveries had been made on the listed contracts prior to termination, whereas “Complete” means that no deliveries had been made and that termination canceled the entire contract.

Of the above-listed contracts, all except Nos. 2166, 23180, and 31131 contained the Uniform Termination Article. That article, as taken from contract No. 22512, provided (in the absence of an agreed termination settlement) :

(d) In the event of the failure of the Contractor and contracting officer to agree as provided in the paragraph (c) upon the whole amount to be paid to the Contractor by reason of the termination of work pursuant to this section, the Government, but without duplication of any amounts agreed upon in accordance with paragraph (c), shall pay to the Contractor the following amounts:
(1) For completed articles delivered to and accepted by the Government (or sold or retained as provided in paragraph (b) (7) above) and not theretofore paid for, forthwith a sum equivalent to the aggregate price for such articles computed in accordance with the price or prices specified in the contract;
(2) In respect of the contract work terminated as permitted by this section, the total (without duplication of any items) of (i) the cost of sncli work exclusive of any cost attributable to articles paid or to be paid for under paragraph (d) (1) hereof; (ii) the cost of settling and paying claims arising out of the termination of work under subcontracts or orders as provided in paragraph (b) (5) above, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the subcontractor prior to the effective date of the notice of termination of work under this contract which amounts shall be included in the cost on account of which payment is made under subdivision (i) above; and (iii) a sum equal to 2 percent of the part of the amount determined under subdivision (i) which represents the cost of articles or materials not processed by the Contractor, plus a sum equal to 8 percent of the remainder of such amount, but the aggregate of such sums shall not exceed 6 percent of the whole of the amount determined under subdivision (i), which for the purpose of this subdivision (iii) shall exclude any charges for interest on borrowings;
(3) The reasonable cost of the preservation and protection of property incurred pursuant to paragraph (b) (9) hereof; and any other reasonable cost incidental to termination of work under this contract, including expense incidental to the determination of the amount due to the Contractor as the result of the termination of work under this contract.
The total sum to be paid to the Contractor under subdivisions (1) and (2) of this paragraph (d) shall not exceed the total contract price reduced by the amount of payments otherwise made and by the contract price of work not terminated. Except for normal spoilage and to the extent that the Government shall have otherwise expressly assumed the risk of loss, there shall be excluded from the amounts payable to the Contractor as provided in paragraph (d) (1) and paragraph (d) (2) (i), all amounts allocable to or payable in respect of property which is destroyed, lost, stolen, or damaged so as to become undeliverable prior to the transfer of title to the Government or to a buyer pursuant to paragraph (b) (7) or prior to the sixtieth day after delivery to the Government of an inventory covering-such property, whichever shall first occur.
# ífí * ❖ *
(h) For the purposes of paragraphs (d) (2) and (d) (3) hereof, the amounts of the payments to be made by the Government to the Contractor shall be determined in accordance with the Statement of Principles for Determination of Costs upon Termination of Government Fixed Price Supply Contracts approved by the Joint Contract Termination Board, December 31, 1943. The Contractor for a period of 3 years after final settlement under the contract shall make available to the Government at all reasonable times at the office of the Contractor all of its books, records, documents, and other evidence bearing on the costs and expenses of the Contractor under the contract and in respect of the termination of work thereunder.

4. All of the contracts listed in finding 3 were war contracts as defined by, and were terminated under, the provisions of the Contract Settlement Act of 1944, enacted July 1, 1944, 58 Stat. 649, 41 U.S.C. 101, and the Joint Termination Regulation, as amended, issued pursuant thereto by the War and Navy Departments, 9 F.R. 13316; 10 F.R. 10793, 13189; 11 F.R. 28, 1728, 4226, 6295, 11479.

5. During the pertinent period of time, plaintiff’s Procurement and Engineering Division, located in Los Angeles, was responsible for the administration of plaintiff’s war contracts. It was an engineering and administrative group which performed all the engineering functions, made practically all purchases and procurement, let out most subcontracts, scheduled all work, and approved all invoices for payment.

6. Prime manufacturing under plaintiff’s war contracts was carried on by plaintiff’s Anderson-Barngrover Division at San Jose, California, its Riverside Division at Riverside, California, and its Lakeland Division at Lakeland, Florida.

7. Plaintiff kept a full set of records with respect to cost and performance. These records indicated what material was purchased for each contract. However, because common items were involved, material involved in the performance of more than one contract was physically commingled and not segregated or earmarked for a particular contract. Common items for more than one contract were often purchased on a single purchase order.

8. With respect to work in process, only labor and burden and raw materials fabricated by plaintiff appeared in that account on plaintiff’s books. Purchased components and material were put directly in finished goods as items were completed. Plaintiff also fumislied material to small subcontractors in the vicinity of its plants and paid them on an hourly rate for work thereon, all directions and specifications being supplied by plaintiff. Although strictly work in process, such material was not reflected in that account on plaintiff’s books.

9. As of any given date, no accurate determination of work in process could have been made from plaintiff’s books and records. Only a physical count would have disclosed the actual work in process on any particular date. No effort was ever made by plaintiff to ascertain the full extent of the amount of its work in process on the pertinent contracts.

10. Subcontracting was arranged by plaintiff’s Procurement and Engineering Division. Between 1,500 and 2,000 subcontractors and suppliers located throughout the United States were involved.

11. All plaintiff’s war contracts were with the Bureau of Ships, were reduced to writing, and were approved on behalf of the defendant in Washington, D.C. Commander Hezlep was the Supervisor of Shipbuilding located with plaintiff’s Procurement and Engineering Division in Los Angeles. He administered the contracts for the Navy Department, adjudicated change orders, and represented the Navy with respect to modifications.

12. Early in 1945 plaintiff became aware of the possibility of termination of its contracts and desired to develop an expeditious method of arriving at the costs resulting from cancellation.

13. Pretermination conferences were held at the Bureau of Ships in Washington on June 20 and 21 and during the week of July 2, 1945. Plaintiff was represented by Messrs. Davies, Carter, Pope, Hait and Cook; the Bureau of Ships by Captain Eosenstein, Lieutenant Commander Pettingill and Lieutenants Bassett, Leva and Yeager. Mr. Davies was plaintiff’s president, and Captain Eosenstein was the contracting officer of the Bureau of Ships charged with the responsibility for handling plaintiff’s contracts.

14. Subjects discussed at the pretermination conferences were the maimer of counting and classification, preservation and disposal of inventories, the rate of profit plaintiff would receive, and the approximate amounts involved. With respect to the rate of profit, plaintiff proposed an overall rate of 6.4 percent, the rate granted by the Army to Studebaker, another contractor engaged in manufacturing a similar vehicle. The Navy countered with the proposal, used by it generally in termination negotiations, of 3 percent on materials and purchased parts, and 10 percent on work in process. Plaintiff estimated that the proportion of inventories, consisting of work in process would be at least 25 percent. This estimate was based upon plaintiff’s historical experience. Assuming that 25 percent of plaintiff’s inventories consisted of work in process, the application of a 3 percent rate on raw materials and purchased parts, and a 10 percent rate on work in process would have yielded an overall rate of 4.750 percent. Plaintiff contended that its work in process on the pertinent contracts somewhat exceeded 25 percent. After discussion a profit rate of 4.875 percent emerged, and it was orally agreed by the conferees that plaintiff would submit its termination claims on that basis.

15. After the pretermination conferences, the Bureau of Ships, by letter dated July 19, 1945, submitted to plaintiff a draft of a pretermination agreement labeled “Draft of July 16, 1945” which referred to five of plaintiff’s principal war contracts, NObs. 1666, 2017, 2018, 2155 and 1394. Included in this draft as paragraph 4(d) was the following:

Profit: Profit will be paid by the Government to the contractor at the rate of 4.875% of the Contractor’s own costs with respect to the terminated portion of the contract. The base on which this rate of profit is computed shall include any expenses in connection with the packing of component parts for which the Contractor has not been compensated under Article 2(b) and 2(c) hereof, but shall not include the items specified in subparagraph (e) hereof, nor shall it include the amount of any subcontractors’ termination charges.

The draft contained extensive provisions concerning taking of inventories of fabricated or unfabricated parts, work in process, complete articles, components, supplies and other materials, as well as proposed agreements concerning classification of items of and disposal of termination inventory, an article unilaterally proposed by plaintiff (not acted upon by the contracting officer) concerning the pricing and disposition of scrap materials, and various proposed agreements concerning the computation of the plaintiff’s claims.

The defendant’s letter of transmittal of the draft of the proposed pretermination agreement stated that the submitted draft was the outgrowth of an earlier draft proposed by the plaintiff, and that the defendant’s draft did not purport to be in final form and was not binding on either the Government or the plaintiff.

16. Plaintiff made no formal reply to the Navy letter of July 19,1945. While the draft of the proposed pretermination agreement was being circulated among plaintiff’s personnel for comments and suggestions, the war came to an end and the contracts in question were terminated. The proposed pretermination agreement was never executed.

17. On August 18, 1945, plaintiff’s Controller circulated an inter-office directive that termination was to proceed under the Joint Termination Regulation and not under the proposed pretermination agreement. He advised that the proposed agreement was never executed and was of no significance. Plaintiff’s post-termination activities with respect to its terminated war contracts did proceed under the Joint Termination Regulation.

18. When the termination notices issued by the Navy Department were received by plaintiff, work was stopped, suppliers and subcontractors were notified to stop work, and preparations were begun for inventory counts. The termination notices, however, did not stop all production since vehicles which had progressed through the paint shop were to be completed. The work in process inventories which were then on the feed lines of subcontractors and subassem-bly lines of plaintiff’s largest assembly plants were immediately reviewed with representatives of the Navy Department, and the disposition of such matter in some cases was ascertained right at that point. The subassemblies which were not used as such in the spare parts supplied under plaintiff’s contracts were disassembled, and the component parts returned to the stock bin of similar parts. The semi-fabricated pieces were scrapped. Materials in process were returned to stock bins.

19. After various materials and parts had been returned to the stock bins, the customary preparation for inventory counting was undertaken, files straightened, and the material properly identified for the count. The return of materials and parts to the stock bins had been made with the knowledge and approval of the Navy Department. Under the circumstances existing at the time plaintiff’s inventory was taken, it was not possible to segregate between purchased parts and raw materials and work in process with respect to the terminated contracts.

20. The portions of the terminated war contracts which had been performed and billed to the Navy Department prior to August 17, 1945, and the balances remaining unperformed on September 30, 1945, were as follows:

21. On August 29, 1945, plaintiff requested permission to file one joint inventory schedule and settlement proposal covering contracts NObs. 1666, 2017, 1394 (Supplemental), and 2011, and one joint inventory schedule and settlement proposal covering contracts NObs. 2018, 2166 and 2155. At this same time plaintiff requested that it be relieved of the obligation of allocating between prime contracts the claims of its subcontractors. The basis of plaintiff’s request was that “the contractor’s inventory and accounting figures do not reflect either items or costs separately for these NObs. contracts, and any accurate allocation among such contracts could not be accomplished without unreasonable delay or effort.”

22. By letter dated September 21, 1945, Captain Bosen-stein approved plaintiff’s request to file two settlement claims and two inventory schedules and to allocate its consolidated inventories to the individual contracts on a percentage basis. In the same letter Captain Eosenstein confirmed the understanding reached with plaintiff’s president, Mr. Davies, on September 18, 1945, this meeting being the reference (c) mentioned in the quoted part of the letter below, that the profit rate of 4.875 percent which had been agreed upon for purposes of reaching a pretermination agreement remained mutually agreeable, and would be claimed by plaintiff and be allowed by him when the termination claims were filed. The language appearing in such letter with regard to the profit rate is as follows:

It will be recalled that during negotiations with the Contractor looking toward a pre-termination agreement, a profit figure was agreed upon between the Contractor and the Contracting Officer of 4.875%, which figure would have been incorporated in the agreement had it been consummated. During the course of reference (c), the Contracting Officer on behalf of the Bureau of Ships, and Mr. Davies on behalf of the Contractor, agreed that this profit figure of 4.875%, which had previously been agreed upon for purposes ox the pre-termination agreement, was mutually agreeable and would be claimed and allowed in the termination claims submitted by the Contractor under the subject contracts.

23. It was understood by and between the conferees for the parties at the pretermination conference, and by and between Mr. Davies and Captain Eosenstein at the meeting on September 18, 1945, that the 4.875 percent rate of profit would be subject to review by the defendant’s Settlement Eeview Board in Washington. Negotiation was the only method of settlement used in settling plaintiff’s termination claims, and all parties understood that written agreements would have to be reached.

24. On November 2,1945, plaintiff requested permission to allocate subcontract charges among the various contracts on the basis of the relative canceled face value of each contract.

25. With respect to contracts NObs. 1394 (Supplemental) and NObs. 2017, two terminations were involved, one dated July 20,1945, for both contracts; one dated August 13,1945, for NObs. 1394 (Supplemental); and one dated August 30, 1945, for NObs. 2017. On November 12, 1945, plaintiff requested permission to consolidate its claims on both terminations and to set August 17,1945, as the consolidated termination date. The Navy had contended that the consolidated termination date should be August 30, 1945, and plaintiff was requested to submit reasons justifying the earlier date.

26. Difficulties arose in processing and apportioning plaintiff’s inventories on the basis of two joint claims covering certain contracts and individual claims covering other contracts. On November 15,1945, plaintiff requested permission to file one settlement proposal based upon combined inventories for all its terminated war contracts and to apportion charges among all the contracts according to the percentage ratio of the terminated portions of each contract.

27. On or about November 26,1945, plaintiff received verbal authorization from Captain Eosenstein to submit a single consolidated claim covering all its terminated war contracts, to treat August 17,1945, as the consolidated termination date, and to allocate charges among the terminated contracts on the basis of the relative canceled face value of each. This verbal authorization was confirmed by the Supervisor of Shipbuilding in a letter dated December 7, 1945.

28. After it had been advised by Captain Eosenstein that submission of one overall claim and use of August 17, 1945, as the consolidated date of termination would be acceptable to him, plaintiff filed with the Navy Department its first settlement proposal on November 27, 1945.

29. The termination claim as filed by plaintiff on November 27,1945, set forth a total inventory of metals, purchased parts, finished components and work in process of $18,618,-592.43. To this figure plaintiff applied the 4.875 percent profit rate to arrive at its claimed profit of $907,656.38.

30. When the physical count of plaintiff’s inventories was taken it was not made under conditions as they existed at the effective date of termination as detailed in findings 18 and 19. Many assemblies were disassembled at the request of the Navy for use as spares. The amount of material so classified as material and purchased parts rather than work in process is impossible of estimation. Boxing of spare parts, which had been or were in process of being boxed for export, was completed before the inventory count was taken. These were classified as material rather than work in process.

31. After plaintiff had presented its first settlement proposal, questions arose concerning the treatment of various items included therein. These matters were taken up with Commander Hezlep, the Supervisor of Shipbuilding, in Los Angeles. Differences which could not be resolved with Commander Hezlep were taken up with Captain Eosenstein in Washington and resolved with him. It was understood that such resolution was subject to review by the Settlement Ee-view Board in Washington and that the settlement terms were to be embodied in a written agreement signed by the parties.

32. Plaintiff’s claim was received by the Contract Termination Section of the Navy Department, Bureau of Ships, Washington, D.C., on or about January 3, 1946. Accompanying such claim was a report dated December 14, 1945, by the Supervisor of Shipbuilding charged with the responsibility for plaintiff’s contracts. This report stated that the inventory schedules of the contractor had been examined by such office or other authorized Navy Department personnel; that based upon such examination the Supervisor of Shipbuilding was of the opinion that the inventories were in good physical condition and included no rejects or spoilage; that the inventories had been spotchecked for allocability; that based on such examination, all of the inventories were allocable to the canceled portions of plaintiff’s terminated contracts; and that prices had been checked and that the amounts of raw material and purchased parts listed on such inventories were considered reasonable. The report also noted the fact that the profit requested was based on the amount agreed to by Captain Eosenstein and Mr. Davies at the meeting of September 18,1945, and that the purchased parts shown in the claim as filed formed a larger percentage of the total inventories than would have been anticipated at the time of the profit negotiations. The report further called attention to questionable items contained in plaintiff’s claim, such as the failure to deduct from cost the amount of cash discounts, for which no adjustment had been required because of plaintiff’s waiver of other items of cost which might properly have been claimed.

33. Plaintiff had not deducted cash discounts from the inventory prices listed in its claim. Instead of minutely examining each item and requiring the deduction of the discount taken with respect to it, the Supervisor estimated the total amount at no more than $360,000 and no adjustment was required because of plaintiff’s agreement to waive the items of cost listed in finding 40, which items plaintiff might legitimately have claimed. An inspection of plaintiff’s inventories by the Supervisory Cost Inspector disclosed net overstatements of approximately $7,000. No adjustment was required because of plaintiff’s waiver of the same potentially allowable items of cost.

34. On January 8, 1946, Captain Rosenstein, the assigned contracting officer, Commander Gordon Rule, the head of the Bureau’s Vessel Termination Section, and Lieutenant Bassett met with representatives of the plaintiff, Paul A. Davies, President, and B. C. Carter, Controller, and discussed plaintiff’s settlement proposal.

35. At this meeting the reasonableness of the 4.875 percent rate of profit claimed by plaintiff was questioned because it had been predicated on an estimate that at least 25 percent of plaintiff’s inventories consisted of work in process, whereas plaintiff’s settlement proposal showed work in process of only approximately 7 percent. Captain Rosenstein requested plaintiff to supply him information to justify the reasonableness of an allowance of profit at the 4.875 percent rate. Plaintiff complied by letter dated February 13, 1946.

36. Plaintiff was also requested to file an application for a partial payment. Because of the difference in interest plaintiff expected to receive on its termination claims, as opposed to the interest it was required to pay on loans obtained with Government guarantee (VT Loans), plaintiff refused the Navy’s request that it apply for partial payment.

37. Captain Rosenstein and the other Navy personnel concerned with plaintiff’s termination claims at that time determined that they would recommend to the Settlement Review Board that a partial payment in the amount of $18,500,000 be made to plaintiff. Accordingly, they prepared a memorandum to be submitted to the Settlement Review Board and the Chief of the Bureau of Ships for approval of such partial settlement. In such memorandum it was stated:

The claim has been negotiated with the Contractor and it is the opinion of the Contracting Officer that not less than the total amount of this claim is owing and will be paid to the Contractor.

This recommendation was approved by the Settlement Review Board and the Chief of the Bureau of Ships and a check for $18,500,000 was tendered to and accepted by the plaintiff’s president, Mr. Davies, when he returned to Captain Rosen-stein’s office on January 10, 1946. The $18,500,000 allowed at that time represented approximately 95 percent of plaintiff’s total claim of $19,526,248.81. It was $118,592.43 less than the amount claimed in respect of inventories and did not represent any allowance for profit or disposal credits.

38. By letter dated February 13, 1946, plaintiff justified the profit rate by advising that it had listed in its settlement proposal as work in process only items which were unquestionably that. Also, because of the impossibility of segregating and identifying work in process, and because such identification had no consequence in view of plaintiff’s claim for an overall rate of profit, much work was not classified as work in process although it was legitimately that. Reduction in 1945 of lead time from about 200 vehicles to 60 vehicles is estimated to have reduced expected work in process by approximately $1,325,000.

39. Plaintiff further justified the reasonableness of the negotiated rate of 4.875 percent, not by attempting to apply the separate rates of paragraph (d) of the Uniform Termination Article to separate classes of plaintiff’s inventories, but rather by the waiver of unrelated legitimate costs and the showing of additional items which were legitimately work in process but which were not so classified.

40. Plaintiff agreed to waive the following items of cost:

(a) $280,000 freight on termination inventories.

(b) $400,000 cost of boxing Riverside inventories for shipment as spare parts.

(c) $144,000 burden on work in process.

(d) $350,000 general and administrative expenses incurred prior to termination.

(e) $200,000 settlement expenses incurred prior to October 1,1945.

(f) $4,000,000 billings on approved change orders.

41. After receipt of plaintiff’s letter concerning reasons why the 4.875 percent rate should be allowed, Captain Rosen-stein on March 26, 1946, submitted his written proposals for settlement of plaintiff’s claim to the Settlement Review Board. With one exception, he recommended approval of plaintiff’s claim as it was submitted on November 27, 1945, including allowance of profit at the rate of 4.875 percent. The exception concerned freight charges in the sum of $21,222. A dispute had arisen concerning certain freight charges claimed by plaintiff as a part of its inventory costs, and plaintiff, after negotiation, agreed to decrease its claim for metals inventory by the amount of $21,222, and the Settlement Review Board was so advised.

42. On March 27, 1946, after considering the evidence before it and discussion of the various items of the claim, the Settlement Review Board certified its approval of the proposed settlement agreement as it was contained in plaintiff’s claim and the report and recommendation of the contracting officer. This constituted a partial settlement of the matters involved in the termination of the contracts, and was recognized by the Board as such. The action of the Board was approved by the Chief of the Bureau of Ships.

43. By letter dated April 11, 1946, the Navy submitted to plaintiff for execution two supplemental agreements covering the plaintiff’s termination claim as approved by the Settlement Review Board and the Chief of the Bureau of Ships.

44. At no time were negotiations conducted on the basis of plaintiff’s being entitled to a minimum amount of profit computed under the formula set forth in paragraph (d) of the Uniform Termination Article contained in some of the terminated contracts.

45. On May 21, 1946, plaintiff returned to the defendant executed copies of the supplemental contracts supplied by the Navy Department, as stated in finding 41. On or about June 6, 1946, plaintiff received one copy of each of these supplemental contracts which had been executed on behalf of the Navy Department. Payments of the amounts set forth in the supplemental contracts (the amounts due after deduction of the partial payment of $18,500,000) were received by plaintiff as follows: June 12,1946, $817,670.52, and June 13,1946, $62,747.95, representing the principal sum payable, $876,-669.97, together with interest from the date of said agreements, March 27,1946, to the date of payment, in the amount of $3,748.50.

46. Between November 27, 1945, and October 22, 1946, plaintiff submitted 11 additional settlement proposals to the Navy Department.

47. On September 9, 1946, plaintiff submitted its 10th interim settlement proposal and claimed therein for the first time its settlement expenses incurred after October 1, 1945, in the aggregate amount of $590,077.65 accrued on plaintiff’s books as having been incurred in the following tax periods:

48.Under a general authorization made applicable to plaintiff on May 21, 1945, plaintiff was authorized to make final settlements of its subcontractors’ termination claims amounting to less than $10,000. On December 19, 1945, the Navy Department authorized disbursal to plaintiff of a fund of $15,000,000 as an advance for the purpose of permitting plaintiff to make payments to its subcontractors on account of their claims against plaintiff arising out of the termination by plaintiff of subcontracts pertaining to the contracts listed in finding 3. On January 3, 1946, plaintiff received the $15,000,000 restricted fund for use in settling claims under the provisions of the Contract Settlement Act of 1944. All of the settlements with subcontractors made by plaintiff on the claims were covered by Settlement Proposal No. 12. Plaintiff was not allowed interest on disbursements from this fund, but was allowed interest on its own corporate funds used in settlements of subcontractors’ claims.

49. Plaintiff’s 12th and final settlement proposal was submitted to the Navy Department on October 22, 1946, and the final disposition of plaintiff’s claims in connection with the termination of its war contracts, including its settlements with subcontractors, was made on the basis thereof. The profit allowance of $906,621.81, previously allowed in the first claim and included in the proposal for final disposition, was 4.875 percent of $18,597,370.43, which sum was the total amount of plaintiff’s previously allowed inventory of metals, purchased parts, finished components, and work in process.

This final settlement proposal provided for an allowance for settlement expenses (including general and administrative among others) of $590,077.65 and an allowance for interest of $160,745.10. The amount of $590,077.65 represented total expenses of $610,130.53 allocable to plaintiff’s terminated war contracts for the period October 1, 1945, to September 30, 1946, inclusive, less expenses in the amount of $20,052.88 absorbed by plaintiff. The amount of $160,745.10 represented interest at the rate of 2% percent on the principal amount of $19,220,150.37 for the period commencing 30 days after the effective date of termination of plaintiff’s aforesaid war contracts to January 10,1946, inclusive, plus interest at the rate of 2*4 percent on $720,150.37 for the period January 11,1946, to June 11,1946, inclusive, plus the amount of $477 representing interest charged against the Navy Department by plaintiff on account of the use of plaintiff’s funds in settlement of subcontractors’ claims in connection with its terminated war contracts. The principal amount of $19,-220,150.37 was computed per plaintiff’s 12th settlement proposal as follows:

Metals_ $1,321,027.72
Purchased Parts- 15,410, 599. 86
finished Components- 711,094.32
Work in Process- 1,154, 648.53
18, 597,370.43
Add: Profit Allowance- 906,621.81
Total_ 19,503,992.24
Deduct: Disposal credits- 283,841.87
Balance 19,220,150.37

The amount of $720,150.37 was computed as follows:

Amount due plaintiff per 12th settlement proposal- $19,220,150.37
Payment on account Jan. 10,1946_ 18,600, 000.00
Balance_ 720,150.37

50. Bear Admiral F. J. Wille, Contracting Officer of the Bureau of Ships, recommended approval by the Settlement Review Board of plaintiff’s 12th and final settlement proposal in a memorandum dated November 19,1946. The Settlement Review Board approved the final settlement of plaintiff’s claim on November 26, 1946. Final settlement was also approved by the Chief of the Bureau of Ships.

51. On December 12, 1946, the Navy Department transmitted to plaintiff two proposed settlement agreements, in the form of second supplemental contracts, proposing a final settlement of plaintiff’s claims arising out of the termination of the war contracts listed in finding 3. On December 19,1946, plaintiff returned executed copies of the second supplemental contracts to the Navy Department. On January 3,1947, plaintiff received one copy of each of the second supplemental contracts which had been executed on behalf of the Navy Department. Plaintiff received its final payment for additional interest allowed by the Navy Department on January 3,1947. On January 9,1947, plaintiff received the TJ.S. Treasury Department’s check dated January 3, 1947, in settlement of the balance due on its termination claims, in the amount of $604,674.57, computed as follows:

Settlement expenses_$462,577.65
General and administrative expenses_ 127,500.00
590,077.65
Interest- 14,477.00
Total- 604,554.65
Interest-- 119.92
Total- 604, 674.57

52.Prior to the payments to the plaintiff set forth in finding 51, plaintiff received payments on account of the termination of its war contracts listed in finding 3, in the amounts and on the items as follows:

Termination inventories-$18, 597,370. 43
Profit allowance- 906, 621. 81
Total interest allowance- 160, 745.10
Aggregate amount due- 19, 664, 737.34
Payments received by plaintiff:
Jan. 10, 1946_$18,500,000.00
June 12, 1946_ 817, 670. 52
June 13, 1946_ 62, 747. 95
Additional interest received by plaintiff on
Jan. 3, 1947_ 477. 00
Disposal credits_ 283, 841. 87
Total_ 19, 664, 737. 34

53. During negotiations, an attorney for the Navy suggested that, for Federal income and excess profits tax purposes, the profit allowance with respect to plaintiff’s terminated war contracts might be accruable in 1946 rather than in the tax year ended September 30, 1945. However, because of the position taken by the Commissioner of Internal Eevenue in Mimeograph No. 5897, C.B. 1945, 131, plaintiff decided to include the profit allowance in its 1945 income and file a claim for refund.

54. In its corporate income and declared value excess profits tax return for the tax year ended September 30, 1945, plaintiff reported ordinary net income, prior to adjustment on account of excess profits net income and dividends received credit, in the amount of $20,662,580.87, and in its excess profits tax return for the pertinent tax year plaintiff reported excess profits net income in the amount of $20,548,-532.04, and adjusted excess profits net income in the amount of $18,897,662.07, after application of the specific exemption of $10,000 and the excess profits credit (based on income) of $1,640,869.97.

55. Included in the computation of plaintiff’s normal tax net income, surtax net income and excess profits net income reported for the tax year ended September 30,1945, was the amount of $907,656.38, which amount plaintiff included in its gross income for the pertinent tax year on account of its claims against the defendant by reason of the latter’s termination of plaintiff’s contracts referred to in finding 3.

56.In its excess profits tax return for the tax year ended September 30, 1945, plaintiff computed and disclosed its excess profits tax liability for such tax year in the amount of $14,194,588.68, and its income tax liability for such year in the total amount of $667,783.17. Plaintiff paid to the Collector the amount of its income tax and excess profits tax liabilities as disclosed by its returns as follows:

Plaintiff did not incur any liability on account of declared value excess profits tax for the tax year ended September 30, 1945.

57. On December 29, 1945, the Commissioner of Internal Revenue granted plaintiff permission to change its accounting year for tax purposes from a tax year ending September 30 to a calendar year ending December 31. Plaintiff filed with the Collector its corporate income and excess profits tax returns for the short tax period October 1,1945, to December 31, 1945, and has subsequently prepared and filed its corporate tax returns on the calendar year basis.

58. The Commissioner of Internal Revenue, upon audit and review of plaintiff’s income and excess profits tax returns for the tax year ended September 30,1945, determined an overassessment in plaintiff’s income tax liability for that tax year in the amount of $347.15 and determined a deficiency in plaintiff’s excess profits tax liability for that year in the amount of $267,107.79. The asserted deficiency in plaintiff’s excess profits tax for that year was assessed and was satisfied by plaintiff, together with interest thereon, as follows:

59. The amount of $124,542.08 (additional excess profits tax), paid by plaintiff to the Collector on August 21, 1947, together with interest thereon in the amount of $12,577.04, was occasioned by certain uncontested adjustments made by the Commissioner of Internal Revenue to plaintiff’s taxable income for the tax year ended September 30,1945. On June 11, 1948, the balance of the asserted deficiency for the tax year ended September 30, 1945, was satisfied by credit in the amount of $142,565.71, together with interest thereon of $21,304.78, from an overassessment of plaintiff’s excess profits tax liability for the tax year ended September 30, 1944, determined and allowed by the Commissioner of Internal Revenue in the total amount of $556,309.72, exclusive of interest thereon.

60. In making the above-mentioned adjustments to plaintiff’s corporate income tax and excess profits tax liabilities for the tax year ended September 30,1945, the Commissioner of Internal Revenue determined that the adjusted net income of plaintiff was in the amount of $22,014,426.27; that its normal tax and surtax net income was in the amount of $1,672,941.41, resulting in a determined corporate income tax liability of $667,436.02; and that plaintiff’s adjusted excess profits net income' for that tax year was $20,250,669.65, resulting in a determined excess profits tax liability of $15,161,004.34.

61. On May 1,1947, plaintiff paid to the Collector on account of its excess profits tax liability for the tax year ended September 30,1945, the amount of $699,307.87, together with interest for the period to May 2,1947, in the amount of $57,-898.86. Having reported and paid original excess profits tax liability for the tax year ended September 30, 1945, of $14,194,588.68, plaintiff thus had had assessed against it and had paid, total excess profits tax for the pertinent tax year of $14,893,896.55, plus the excess profits tax assessment of $267,-107.79 assessed and satisfied as shown in finding 58, or a total excess profits tax liability determined for the tax year ended September 30, 1945, of $15,161,004.34.

62. Plaintiff’s overassessment of income tax for the tax year ended September 30, 1945, was credited to plaintiff’s account, and the deficiencies in excess profits tax liability as determined for the same year were paid or satisfied as shown hereinabove. In his determination of plaintiff’s income tax and excess profits tax liabilities for the tax year ended September 30, 1945, the Commissioner of Internal Eevenue included in plaintiff’s income the amount of $906,621.81 on account of its claims arising out of the termination of its war contracts listed in finding 3, rather than the $907,656.38 reported by plaintiff in filing its return for such year. This reduction in income was made to reflect the elimination of the $21,222 of freight charges from plaintiff’s termination inventory, as related in finding 39, the application of the profit rate of 4.875 percent being made to the total sum of the inventory as reduced to that extent.

63. On November 9,1950, plaintiff filed with the Collector a claim for refund of income and excess profits taxes exacted for the tax year ended September 30,1945, in the amount of $652,767.67, plus statutory interest thereon.

64. In accordance with the provisions of Section 3772 of the Internal Revenue Code of 1939, the Commissioner of Internal Revenue notified plaintiff of the disallowance of its claim for refund for the tax year ended September 30,1945, on April 24,1952. The basis of the Commissioner’s rejection was his determination that the amount of $906,621.81 was in-cludible in plaintiff’s income for the tax year ended September 30,1945. No part of any sum representing the instant claim which was collected from plaintiff as aforesaid by the Collector has been refunded, repaid or credited to plaintiff.

65. Plaintiff’s petition was timely filed in this Court on April 8, 1954. The grounds upon which this case was presented and tried are the same as those stated in the claim for refund.

CONCLUSION OE 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 plaintiff is not entitled to recover and its petition is dismissed. 
      
       9 F.R. 13316 ; 10 F.R. 10793, 13189 ; 11 F.R. 28, 1728, 4226, 6295, 11479.
     