United States v. Allen-Bradley Company/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

352 U.S. 306

United States  v.  Allen-Bradley Company

 Argued: Dec. 13, 1956. --- Decided: Jan 22, 1957

Mr. Justice HARLAN, concurring.

Both the terms of the statute, and the fact that two courts of such special expertise in tax matters as the Tax Court and Court of Claims have sustained the taxpayer's position, ^[1] leave me doubtful as to whether, under the statutory provisions in question, ^[2] the War Production Board had the right to issue partial certificates. The Court finds ambiguity in the statute, but, in resolving that ambiguity as it has, does little more than point out that Congress did not interfere with the authority claimed by the Board.

However, in my view the scope of the Board's powers need not be reached in this case, because, for the reasons given by Judge Lumbard in his opinion for the unanimous Court of Appeals in Commissioner of Internal Revenue v. National Lead Co., 2 Cir., 230 F.2d 161, I think it clear that respondent cannot maintain the present action. On that basis I join in the Court's decision.

Notes

1. National Lead Co. v. Commissioner of Internal Revenue, 23 T.C. 988; Allen-Bradley Co. v. United States, 134 Ct.Cl. 800.
2. 26 U.S.C. § 124(f)(1), 26 U.S.C.A. § 124(f)(1), from which the Court quotes, must be read in context with 26 U.S.C. §§ 124(e)(1) and 124(f)(3), 26 U.S.C.A. § 124(e)(1), (f)(3). Together these sections provide:

§ 124(e)(1). 'As used in this section, the term 'emergency facility' means any facility, land, building, machinery, or equipment, or part thereof, the construction, reconstruction, erection, installation, or acquisition of which was completed after December 31, 1939, and with respect to which a certificate under subsection (f) has been made * * *.'

§ 124(f). 'In determining, for the purposes of subsection (a) * * * the adjusted basis of an emergency facility-

'(1) There shall be included only so much of the amount otherwise constituting such adjusted basis as is properly attributable to such construction, reconstruction, erection, installation, or acquisition after December 31, 1939, as either the Secretary of War or the Secretary of the Navy has certified as necessary in the interest of national defense during the emergency period, which certification shall be under such regulations as may be prescribed from time to time by the Secretary of War and the Secretary of the Navy, with the approval of the President.'

§ 124(f)(3). '* * * In no event and notwithstanding any of the other provisions of this section, no amortization deduction shall be allowed in respect of any emergency facility for any taxable year-

'(C) unless a certificate in respect thereof under paragraph (1) shall have been made (i) prior to the filing of the taxpayer's return for such taxable year, or prior to the making of an election * * * to take the amortization deduction, or (ii) before December 1, 1941, whichever is later * * *.'

On December 17, 1943, the powers under these sections were transferred by the President to the War Production Board.