Ford Motor Co. v. United States

LITTLETON, Judge

(concurring).

In addition to what has been said in the foregoing opinion, a few words might be said with reference to the substance of the transactions giving rise to the question presented. In the decision of the question here involved, and in applying the provisions of the statute thereto, we are confronted with the same matter of substance with which the defendant was confronted when it separated the Michigan and Delaware corporations by denying their claim that their net taxable income and invested capital and that of certain other corporations should be computed as the income and invested capital of a single business unit, and that the tax should be computed thereon accordingly. Had the corporations been treated as a single business unit and their identities' disregarded, many of the adjustments made;by the Commissioner would not have been necessary, and apparently a determination of the greater part of the additional assessment and the overpayment would not have been required. There was a valid agreement among the corporations as to who should pay the tax shown upon the return, which agreement was authorized by the statute and pursuant to which the plaintiff was the taxpayer, under the statute, in respect of the taxes paid by it. It was therefore in connection with the recognition of the separate identities of the corporations and the appropriate adjustment of invested capital, net income, and tax liability — that is, a clear recognition of both form and substance — that a further tax *604 of'riiore'than $1,200,000 was determined and collected by the defendant.

In matters of this kind, for the purpose of taxation, the separate identity of corporations and their stockholders is important. Marr v. United States, 268 U. S. 536 , 45 S. Ct. 575 , 69 L. Ed. 1079 . No one except plaintiff, a Delaware corporation, had any right to demand from the government the return of the excess payment of $7,787,686.-26 made by it, and the government did not and could not have recognized as valid any claim therefor by any other corporation or individual. This corporation was put upon notice that it was required to file a claim for refund therefor, and, if this had .not been done and the statute of limitation had run against the refund to the Delaware corporation of. that overpayment, it would have been lost to the Delaware corporation, while the statute and the substance of the transaction would have required the- defendant to proceed to collect from the Michigan corporation the additional assessment against it of $9,023,708.67, which the defendant would have done. Without exception, the decided cases hold, and the practice of the Treasury Department is to the effect, that interest provided by the statute is .payable on an overpayment by one taxpayer offset against a tax assessed against another taxpayer for the same or different years. -This rule is applicable here.