Pacific Rock & Gravel Co., a Corporation v. United States

Pacific Rock & Gravel, plaintiff and appellant, has paid some 1954 federal corporation income taxes and claims it overpaid them. Now it sues for them back. After a very brief trial, there being no dispute as to the facts, decision and judgment went for the government, and Pacific Rock appeals.

We are concerned here with “carry-back” and “carry-forward” from one year to another of net operating losses as affected by rules on percentage depletion applicable to processed rock, sand and gravel. If the problem were wholly for years prior to 1954, all would admit taxpayer has no point. But if the facts were after January 1, 1954, taxpayer would be right and its position would be *123 so clear the case doubtless would never have reached the federal courthouse. The question is whether the 1954 Internal Revenue Code, the pertinent portion of which we shall come to shortly, gave the taxpayer something it did not have at midnight December 31, 1953.

For 1952, Pacific Rock reported a net operating loss of $105,748.66. Of this, $1,012.99 was carried back to wipe out taxpayer’s 1951 net profit in that amount. Thus, there was $104,735.67 to carry forward after 1952. The year 1953 was a better…

297 F.2d 122 61-2 USTC P 9645 PACIFIC ROCK & GRAVEL CO., a corporation, Appellant, v. UNITED STATES of America, Appellee. No. 16529. United States Court of Appeals Ninth Circuit. Aug. 30, 1961, Rehearing Denied Oct. 23, 1961. Theodore J. Elias and Harold Easton by Theodore J. Elias, Los Angeles, Cal., for appellant. Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Louise Foster and Ahrry Marselli, Attorneys, Dept. of Justice, Washington, D.C., Laughlin E. Waters, U.S. Atty., Edward R. McHale, Asst. U.S. Atty., Chief, Tax Division, Eugene N. Sherman, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before POPE and CHAMBERS, Circuit Judges, and KILKENNY, District judge. CHAMBERS, Circuit Judge. 1 Pacific Rock & Gravel, plaintiff and appellant, has paid some 1954 federal corporation income taxes and claims it overpaid them. Now it sues for them back. After a very brief trial, there being no dispute as to the facts, decision and judgment went for the government, and Pacific Rock appeals. 2 We are concerned here with 'carry-back' and 'carry-forward' from one year to another of net operating losses as affected by rules on percentage depletion applicable to…

(concur-_ ring).

As I read the petition for a rehearing, it is clear that appellant thinks I should have given it more of an opinion than that filed on August 30, 1961, and that the composition should be a little better documented with citations. Perhaps, as between appellant and the court, that is correct.

But, also, I must think of the lawyers who are made poor buying copies of the reported decisions of the United States courts of appeal for the various circuits, They are published now almost one volume a month,

Here we have a transitory legal question on construction of a statute and of little precedent value on another day. I *126 do not suppose I could ever convince appellant that I read every decision cited in the briefs, and many more. If I proved that, then its counsel, as good lawyers, I venture would think I did not know how to read the cases. And, if I decorated my effort with a lot of citations, I cannot imagine there would be satisfaction with the selection of citations. Certainly, a lot of citations have never saved me from the Supreme Court’s occasional four word mandate of: “Certiorari granted. Judgment reversed.”

Let it be clearly understood that counsel’s…

On Petition for Rehearing,

The petition for a rehearing is denied,