Interstate Transit Lines v. Commissioner, 319 U.S. 590 (1943)
MR. JUSTICE JACKSON, dissenting.
This taxpayer operated a bus system between Chicago and Los Angeles. It could not pick up intrastate passengers in California, as it did elsewhere, because the State denied foreign corporations permission to do so. In order to obtain local traffic to help carry the cost of operating the interstate buses, taxpayer organized a wholly owned and dominated California subsidiary. This contented the local authorities, and it was granted permission to carry local business. It took over buses arriving at the state line, operated them in California, thus performing a part of the taxpayer’s agreements of through carriage and benefiting from local traffic to reduce the cost. It was a common sense business arrangement, for the purpose of making its business profitable.
The taxpayer made a contract with the subsidiary by which the subsidiary undertook the service; the parent company became entitled to the profits and assumed the losses. The taxpayer agreed to reimburse the subsidiary for any operating deficit. This, too, was a common sense business arrangement. To pay its wholly owned subsidiary more would be pointless, for it would only come back. To pay it less would result in its bankruptcy to the injury of creditors. So the taxpayer agreed that the operating deficits should be the measure of its contractual obligation to the subsidiary.
There is no suggestion that this arrangement was for tax avoidance, or, for that matter, that it did not actually reduce taxpayer’s costs, and thus increase its tax liability. The Commissioner ruled, however, that the amount of operating deficit paid by the taxpayer was not a business expense.
To require the Commissioner in all cases to allow a deduction so fixed might be turned by the unscrupulous to tax evasion ends. It could then, through its controlled subsidiary, make expenditures not properly allowable as business expense, but get them allowed as part of the deficit assumed by contract. Of course, the Commissioner is not obliged to allow this, or any other arrangement, when it is used as a cover for tax skullduggery. Examination of the items is open to the Commissioner. But this deduction has been denied not for such reasons, but upon a legal theory which I think is erroneous.
The taxpayer took inconsistent positions: first, that the corporate entity of the subsidiary should be disregarded and the two companies taxed on a consolidated basis; second, that the amount was a proper deduction under the contract, which, of course, implies existence of two parties to contract. The Government, not to be outdone in the matter of inconsistency, denied the separate entity theory and also disregarded the contract, and argues to us
the contract of the taxpayer to make good Stages’ operating deficits is one pervaded by the stockholder-corporation relation. Any contribution to Stages under this contract must therefore be regarded as incident to the taxpayer’s stockholder status.
So the Government says the payment was not a compensation for services, which the contract provides that it was, but was a "capital contribution," which the contract says it was not.
I think there is no merit in the taxpayer’s theory that the Commissioner must disregard the corporate entity of the subsidiary. If a taxpayer itself creates and uses a corporation, he cannot require the Commissioner to say it isn’t there.
But, on the other hand, if the Commissioner says there are two entities, it would seem that they would be able to contract with each other, one to perform a service and the other to pay a price. The service may be, and often is, one that the taxpayer could not perform for itself, but, if it is hired to build up its business, I see no reason why its proper cost is not a business expense deduction. The price need not be a fixed one, but may be determinable by costs or other contingencies; but when fixed, its amount (barring use as a device to evade) is the amount of the deduction. Cost or "cost plus" is one of the Government’s own methods of contracting. It is not an illicit method for a taxpayer to employ.
But it is urged that, since the taxpayer could not itself pick up local business under California law, it cannot be the business of the taxpayer in a legal sense to have a subsidiary do so, and disbursements to have local business brought in are legally foreign to its business, although for its benefit. I do not suppose the taxpayer corporation can itself legally practice law or medicine, but, I would suppose, if it needed legal service for its business or thought it good business to supply medical attention to injured or ailing employees, the cost would be a business deduction even though the agent was doing what the taxpayer could not legally do for itself. The taxpayer may not be authorized to run a newspaper or put up billboards, but if it contracted for services of those who are, in order to fill vacant seats in its buses, I do not suppose its cost would be disallowed for that reason.
This company has not violated the law, even of California. Indeed, it went to this trouble to comply with it. The fact that it used a subsidiary to benefit its business in areas where its own competence was lacking can hardly invalidate the arrangement, particularly since it is insisted that the subsidiary had separate legal and tax existence. If states create dummies, businessmen may utilize them, so long as they keep within the law, and the function of the revenue laws is not to tell them how they shall manage business, but to see that what they do has proper tax consequences.
Since the decision of this case, the Tax Court has held in a very similar case that, where a wholly owned subsidiary exclusively performs services essential to the business of the parent corporation, advances made by the parent to meet the subsidiary’s operating deficit are deductible as a business expense. Texas & Pacific Ry. Co. v. Commission, No. 105730, March 25, 1943. I think this is a correct rule. Judge Harron there avoids the force of this case only upon the ground that the parent corporation here could not itself engage in the business done in its behalf by the subsidiary. That distinction is good enough to get the Tax Court away from a bad rule, but I see no reason why such a deduction should be available in case of an unnecessary subsidiary and be refused in the case of one needed to comply with state laws in making a profitable enterprise. I would reverse.
THE CHIEF JUSTICE and MR. JUSTICE MURPHY join in this dissent.