1953 U.S. Tax Ct. LEXIS 130">*130 1. Petitioner and the respondent, when renegotiation of petitioner's renegotiable contracts for the year 1942 was under consideration, entered into an agreement which determined the amount of petitioner's excessive profits from those contracts for that year, and the amount of price reductions by petitioner on three contracts upon which deliveries were to be made subsequent to 1942. Paragraph III of the agreement provided that the provisions as to price reductions should be without prejudice to subsequent renegotiation pursuant to the Renegotiation Act, relating to any year subsequent to 1942. Paragraph VI gave the Under Secretary of War or his duly authorized representative the right to "reopen the renegotiation" under certain specified circumstances.
2. An agreement to extend the 1-year statutory period within which an order determining excessive profits of petitioner for 1943 could be issued, executed by a corporation which, as sole stockholder of petitioner, had1953 U.S. Tax Ct. LEXIS 130">*131 acquired all of its assets, assumed its liabilities, and continued the operation of its business,
20 T.C. 537">*538 Petitioner seeks review of a determination of excessive profits to be eliminated for the year ended December 31, 1943, in the amount of $ 1,202,539.70. The United States has been substituted as party respondent in place of the War Contracts Price Adjustment Board.
Petitioner has abandoned its contention, among others, that profits in question were not excessive, and now contends only (1) that, by reason of an agreement dated July 16, 1943, the 1943 renegotiation proceedings could not extend to income received in that year from three war1953 U.S. Tax Ct. LEXIS 130">*133 contracts; and (2) that a timely agreement dated December 19, 1944, extending the statutory period within which a determination of excessive profits might be made with respect to 1943, was not a valid agreement within section 403 (c) (3) (B) of the Renegotiation Act.
FINDINGS OF FACT.
The stipulation of facts is adopted and is incorporated herein in its entirety by reference.
Petitioner, Hanlon-Waters, Inc., was a Delaware corporation having its principal office in Tulsa, Oklahoma. During the period involved in this proceeding, it was engaged principally in the manufacture and assembly of portable pipelines for the transportation of liquid fuel.
The Office of the Chief of Engineers (hereinafter referred to as OCE) on January 16, 1943, assigned to the Southwestern Division, Corps of Engineers, Price Adjustment Board (hereinafter referred to as SWEPAB) the renegotiation of petitioner's war contracts for its "fiscal year ended December 31, 1942," so that excessive profits of petitioner, if any, could be eliminated. Petitioner, by letter dated January 20, 1943, was advised of this assignment.
Renegotiation conferences between representatives of petitioner and representatives of SWEPAB1953 U.S. Tax Ct. LEXIS 130">*134 were held at Tulsa, Oklahoma, on May 5 and 6, 1943, pursuant to prior notice, with respect to petitioner's 1942 renegotiable profits. The amount of excessive profits which petitioner realized during 1942 was agreed upon and it executed a renegotiation agreement dated May 6, 1943, pursuant to which it agreed to pay or credit to the United States $ 556,000. This agreement was not executed by or on behalf of the United States.
20 T.C. 537">*539 On June 25, 1943, SWEPAB addressed further questions to petitioner with respect to details of its operations and also requested petitioner's costs for its first quarter of 1943. The information relating to the first quarter of petitioner's 1943 operations was desired "so that the amount of 'forward pricing' of your 1943 renegotiable contracts may be determined." Petitioner replied, by letter dated June 29, 1943, that it would endeavor to collect the information desired but that there would possibly be a delay in assembling it. Petitioner expressed the hope that it would be able to discuss the "matter of forward pricing by July 15," and advised SWEPAB that it was holding $ 2,000,000 in an account for the purpose of payment of renegotiation settlements1953 U.S. Tax Ct. LEXIS 130">*135 and taxes.
A second conference between petitioner and SWEPAB was held in Dallas, Texas, on July 16, 1943. On July 20, 1943, petitioner wrote two letters to the respondent's representatives at Dallas. In one it advised them that it should expect an allowance of profit of not less than 15 per cent on original billings for 1943. In the other it sent them data with respect to three contracts which had been discussed at the July 16th meeting and which were in the course of performance in 1943. Proposed methods of effecting a reduction of charges under these contracts were outlined.
On August 3, 1943, SWEPAB forwarded to petitioner a revised renegotiation agreement which was drafted as a result of conferences between the parties on May 6, 1943, and July 16, 1943, which determined the amount of excessive profits realized by petitioner during 1942 and provided for a reduction of prices under three specifically named contracts, which were then in the course of performance. The revised agreement was executed by petitioner but was not executed by or on behalf of the United States. On August 3, 1943, SWEPAB advised petitioner that it would be forwarded to OCE for approval.
On August 10, 1953 U.S. Tax Ct. LEXIS 130">*136 1943, petitioner submitted to SWEPAB a copy of an audit report of Haskins & Sells, certified public accountants, for the 5-month period ended May 31, 1943. The audit included, among other things, the summary of income by classifications of sales and surplus from operations for this period. It included cost of sales, indirect labor and overhead, field office and warehouse and general and administrative expenses. It disclosed that, as of May 31, 1943, petitioner had total gross sales of $ 5,826,681.11 of renegotiable business upon which a gross profit of $ 2,176,466.03 had been realized, resulting in a ratio of profit to gross sales of 37.35 per cent. It also disclosed that the petitioner's non-renegotiable business during the same period amounted to between 3 per cent and 4 per cent of petitioner's total business. On this business the ratio of profit to gross sales was 27.62 per cent.
20 T.C. 537">*540 On August 28, 1943, OCE returned, unsigned, the revised agreement, and suggested to SWEPAB, among other things, that it be rewritten to conform to the standard form set forth in the chapter entitled "Price Reductions for Future Deliveries" of the War Department Manual for Renegotiation.
1953 U.S. Tax Ct. LEXIS 130">*137 SWEPAB by telephone called the attention of OCE to the fact that the total sales of the petitioner (non-renegotiable as well as renegotiable) for the year covered by the renegotiation (1942) were somewhat less than $ 3,000,000, but that the business subject to renegotiation in the year 1943 would be in excess of $ 30,000,000 and that the price reductions effected by the subject agreement would themselves amount to more than $ 5,000,000, and asked for an expression from OCE as to the authority of the Division Engineer to execute the agreement with petitioner. The question was pertinent because the redelegation of authority from the Under Secretary of War to the Division Engineer was limited to situations where the contractor's sales for the period under renegotiation did not exceed $ 5,000,000. Under date of September 2, 1943, OCE wrote SWEPAB as follows:
3. The authority vested in the Division Engineer by the delegation of 21 August 1943, covering renegotiations on the overall basis, extends to "contractors and subcontractors whose total sales are not in excess of $ 5,000,000
On September 4, 1943, SWEPAB forwarded to the petitioner a new renegotiation agreement -- RM Form II -- with advice that the new agreement contained certain changes to comply with regulations and directives worked out in Washington and that it was "drawn up in accordance with the conclusions reached in a conference held in this office on 16 July 1943 covering the renegotiation of Government business for the fiscal year ended 31 December 1942 and forward pricing on certain contracts in the year 1943."
The new agreement, dated July 16, 1943, was executed by the petitioner and by the Division Engineer, Southwestern Division, "By Direction of the Under Secretary of War Acting in behalf of the Secretary of War pursuant to authority conferred by subsection (f) of said Section 403, as amended."
Paragraph I provided for the payment of 1953 U.S. Tax Ct. LEXIS 130">*139 $ 556,000 to the United States as representing the amount of excessive profits realized or likely to be realized by petitioner during its "fiscal year ending December 31, 1942," and which should be eliminated and refunded pursuant to the Renegotiation Act of 1942. Paragraph II provided that petitioner 20 T.C. 537">*541 should pay this sum within 10 days after receipt of a fully executed copy of the agreement.
Paragraph III required the petitioner to refund or credit to the United States an amount equal to 22 1/2 per cent of the actual net sales of all units which as of July 16, 1943, were included in the following contracts: Contract No. W-1465-eng-268 (Purchase Order No. M-1558) Contract No. W-781-eng-1185 (Purchase Order No. DL-1004-OT-112) Contract No. W-781-eng-1189 (Purchase Order No. DL-1009)
The contractor represents that in its opinion such reductions are calculated to eliminate from the contracts enumerated above, profits found herein to have been realized, or likely to be realized, which should be eliminated pursuant to the provisions of the Act. The provisions of this paragraph, however, shall be without prejudice to subsequent renegotiation pursuant to the Act, relating to any fiscal year subsequent to the fiscal year ending December 31, 1942.
Paragraph IV provided that the petitioner would not utilize "this renegotiation or adjustment" in any attempt to recover for its own benefit from any person, firm, or corporation all or any part of any such price reduction or of any amount so withheld or recovered from, or paid or credited to the United States.
Paragraph V provided that the petitioner1953 U.S. Tax Ct. LEXIS 130">*141 would furnish to the Under Secretary of War a written statement showing the actual results of its operations for the fiscal year 1943 under the certification of independent public accountants within a reasonable time after the end of that fiscal year.
Paragraph VI provided that:
The finding herein shall be deemed a final and conclusive determination of the profits of the contractor for the fiscal year 1942 under said contracts enumerated and described in "Exhibit A", and under contracts and purchase orders to the extent as set forth in Paragraph III hereof for the fiscal year 1943, which should be eliminated pursuant to the Act, subject to the right of the Under Secretary of War or his duly authorized representative, (a) to reopen the renegotiation in his discretion at any time within sixty (60) days after the contractor shall have filed with the Under Secretary of War a statement of financial statements 20 T.C. 537">*542 provided for in Paragraph V herein, if the actual figures with respect to such factors as cost, volume of production and nature of products prove to be materially at variance with the estimates on which the finding herein was based, and (b) to reopen the renegotiation in1953 U.S. Tax Ct. LEXIS 130">*142 his discretion at any time hereafter upon a showing of fraud or malfeasance or a wilful misrepresentation of a material fact. Subject to the foregoing, performance by the contractor of this agreement shall be in full release and discharge of all liability of the contractor under the Act to refund or repay to the Government any amount of profits realized by said contractor under said contracts.
In a letter to SWEPAB, dated September 7, 1943, James E. Allison, attorney for petitioner, said: "As requested, we return herewith three completely executed copies of revised renegotiation agreement settling for the year 1942 and reducing prices for 1943."
On September 20, 1943, and within 10 days after the receipt of an executed copy of the agreement dated July 16, 1943, petitioner remitted to SWEPAB the total sum of $ 2,499,920.76 in conformity with the requirements of that agreement. Of this amount, $ 556,000 represented refund of excessive profits with respect to 1942, and the remaining $ 1,943,920.76 represented refunds required with respect to the three contracts mentioned in paragraph III of the agreement. Subsequently, by letter dated October 2, 1945, from General Finance Corporation1953 U.S. Tax Ct. LEXIS 130">*143 (which had meanwhile succeeded to the business of petitioner, as hereinafter described), the obligation to refund a further gross payment in the amount of $ 778,709.19 with respect to the three contracts was acknowledged, and payment in the net amount of $ 143,042.06 (computed after tax credits under
On October 20, 1943, OCE was advised by the War Department Price Adjustment Board (hereinafter referred to as WDPAB) that since the renegotiation proceeding for petitioner for the year 1943 had not been assigned to SWEPAB, that agency had exceeded its authority when it included petitioner's 1943 business in a renegotiation agreement.
On November 5, 1943, OCE forwarded to SWEPAB a copy of the letter of October 20, 1943, and directed SWEPAB to prepare a supplemental agreement in accordance with the instructions 1953 U.S. Tax Ct. LEXIS 130">*144 contained therein.
On December 9, 1943, SWEPAB wrote to petitioner advising it that OCE had requested that paragraph V of the renegotiation agreement, as executed, be eliminated and that paragraph VI be modified, and 20 T.C. 537">*543 enclosed a copy of a supplemental agreement with the request that petitioner execute and return it to SWEPAB. The supplemental agreement, dated December 7, 1943, provided for the amendment of the renegotiation agreement dated July 16, 1943, by substituting for paragraph VI of that agreement, the following:
VI. The finding herein shall be deemed a final and conclusive determination of the profits of the Contractor under said contracts and subcontracts for said fiscal year which should be eliminated pursuant to the Act, subject to the right of the Under Secretary of War or his duly authorized representative to reopen the renegotiation in his discretion at any time hereafter upon a showing of fraud or malfeasance or a wilful misrepresentation of a material fact. Subject to the foregoing, performance by the Contractor of this agreement shall be in full release and discharge of all liability of the Contractor under the Act to refund or repay to the Government any1953 U.S. Tax Ct. LEXIS 130">*145 amount of excessive profits realized by said Contractor under said contracts and subcontracts during said fiscal year.
On December 13, 1943, petitioner advised SWEPAB that it had examined the proposed supplemental renegotiation agreement dated December 7, 1943, and was "entirely agreeable to executing a supplemental agreement conforming to your wishes." Petitioner stated, however, that in view of the fact that the original renegotiation agreement of July 16, 1943, referred to "two fiscal years," it seemed that the supplemental agreement should refer to fiscal years (plural) rather than to fiscal year in the revised paragraph VI. Petitioner also called the attention of SWEPAB to the provision in paragraph III of the original agreement that the settlement made by that agreement should be without prejudice to subsequent renegotiation relating to any fiscal year subsequent to the fiscal year ending December 31, 1942, and urged that, in order to carry out the purpose intended by the supplemental agreement set forth in the letter of December 9, this provision should be amended by adding thereto the following language:
and without prejudice to such subsequent renegotiations for the fiscal1953 U.S. Tax Ct. LEXIS 130">*146 year 1943 as to the sales of all units which as of July 16, 1943, were not included in or covered by the contracts referred to herein.
On December 20, 1943, SWEPAB forwarded to petitioner a revised supplemental agreement dated December 17, 1943. Therein the proposed substitute for paragraph VI read as follows:
20 T.C. 537">*544 Action by the petitioner on the revised1953 U.S. Tax Ct. LEXIS 130">*147 supplemental agreement was delayed until it could have a meeting of its board of directors. On March 24, 1944, petitioner advised SWEPAB that its board of directors had met and, after considering the supplemental renegotiation agreement, had decided that a decision regarding its execution should be postponed pending renegotiation of its business for 1943. Neither the original nor the revised supplemental agreement was signed by either party.
During March 1944 General Finance Corporation, a Michigan corporation, acquired all the stock of petitioner. As of March 31, 1944, petitioner was dissolved. Its dissolution was pursuant to the laws of Delaware, the state of its incorporation. On the same date all of the assets of petitioner were transferred to General Finance Corporation and that corporation assumed all of the liabilities, obligations, and indebtedness of petitioner. On and after April 1, 1944, General Finance Corporation operated the former facilities of petitioner as the Hanlon-Waters Division, General Finance Corporation. By supplemental agreement dated March 31, 1944, entered into by petitioner, the United States, and General Finance Corporation, some 23 contracts and1953 U.S. Tax Ct. LEXIS 130">*148 purchase orders were modified to make General Finance Corporation party to their performance. General Finance Corporation assumed the liability of petitioner for the performance of such contracts. Among the contracts for which General Finance Corporation assumed liability was W-1465-eng-268. Deliveries under contracts No. W-781-eng-1185 and No. W-781-eng-1189 had been completely made during 1943. The agreement provided that the "execution of this supplemental agreement by the government shall not be construed as a waiver of its rights against the assignor."
The renegotiation proceedings relative to the petitioner's 1943 fiscal year were assigned to SWEPAB by WDPAB on February 28, 1944.
On April 8, 1944, Hanlon-Waters Division, General Finance Corporation submitted to SWEPAB an audit report of petitioner for its 1943 operations. 1 The submission of this audit report was the first submission of petitioner's complete operations for 1943. SWEPAB was also advised on that date that petitioner had "been liquidated into General Finance Corporation. The business will continue to operate under the same management as heretofore under the name of Hanlon-Waters Division, General Finance1953 U.S. Tax Ct. LEXIS 130">*149 Corporation."
On April 11, 1944, by letter addressed to Hanlon-Waters Division, General Finance Corporation, SWEPAB acknowledged receipt of the audit report covering the 1943 operations and concluded:
20 T.C. 537">*545 As soon as this office receives complete instructions, relative to operations of the 1943 amendments to the Renegotiation Act [Act of February 25, 1944], we will be prepared to conduct 1943 renegotiation proceedings with your company. You may expect to hear from us at that time.
On April 24, 1944, SWEPAB addressed a letter to petitioner advising that the matter of conducting its statutory renegotiation proceedings had been assigned to that office, and that, unless the amount of its business during its latest complete fiscal year was less than the statutory minimum, it was required1953 U.S. Tax Ct. LEXIS 130">*150 by law to furnish the information called for by the enclosed "Standard Form of Contractor's Report." On May 1, 1944, the "Standard Form of Contractor's Report," duly executed and incorporating by reference the reports filed on April 11, 1944, was returned.
On June 5, 1944, SWEPAB notified the Hanlon-Waters Division, General Finance Corporation, that the War Contracts Price Adjustment Board (hereinafter referred to as WCPAB) had determined that renegotiation proceedings under the Renegotiation Act for its fiscal year ended December 31, 1943, should be conducted initially by that office. The Office of the Division Engineer requested a conference and advised that its letter, sent by registered mail, constituted commencement of the renegotiation proceedings in conformity with subsection (c) (1) of the Renegotiation Act. The same letter also advised that it should constitute notice, "if the same be necessary that, without admitting any of the terms or provisions of a renegotiation agreement dated July 16, 1943, and signed by Hanlon-Waters, Inc., included in any way a renegotiation of all or any part of the renegotiable business of said Hanlon-Waters, Inc. for fiscal year ended December1953 U.S. Tax Ct. LEXIS 130">*151 31, 1943, all matters in any wise relating to a consideration of business of said Hanlon-Waters, Inc. for the fiscal year ended December 31, 1943, pursuant to the Renegotiation Act, shall be and are hereby reopened."
Conferences relative to petitioner's 1943 renegotiation proceedings were held in the Dallas office of SWEPAB on June 27 and 28, 1944. After March 31, 1944, negotiations relating to petitioner's 1943 renegotiation proceedings were conducted by Owen L. Coon, Chairman of the Board of General Finance Corporation, and James E. Allison.
Under date of December 19, 1944, the respondent entered into an agreement with General Finance Corporation 2 extending the time for completion of the petitioner's 1943 renegotiation proceedings. This agreement recited that renegotiation pursuant to the Renegotiation Act between the WCPAB or its duly authorized representative and the contractor with respect to amounts received or accrued by 20 T.C. 537">*546 "the Hanlon-Waters, Inc. division of * * * General Finance Corporation" for 1943 was commenced on June 5, 1944. It was agreed that, in accordance with the provisions of clause (B) of the second sentence of subsection (c) (3) of the Renegotiation1953 U.S. Tax Ct. LEXIS 130">*152 Act, the time within which a determination of the amount of excessive profits, if any, derived by the contractor for its fiscal year ended December 31, 1943, might be made by agreement or order was extended to December 31, 1945.
This agreement was executed in Dallas, Texas (except for the approval of the Chairman of the WCPAB) during a conference held in Dallas on December 19, 1944. During this conference petitioner was represented by Owen L. Coon and James E. Allison. Attached to the agreement was a certified copy of a resolution of the Board of Directors of the General Finance Corporation adopted on December 16, 1944, authorizing Owen L. Coon, Chairman of the Board of Directors, to execute and deliver on behalf of the corporation, a renegotiation agreement concluding the renegotiation proceedings with respect1953 U.S. Tax Ct. LEXIS 130">*153 to the corporation's renegotiable business for the fiscal year ended December 31, 1943, and any agreement in accordance with the provisions of the Renegotiation Act and Renegotiation Regulations extending the time for completion of renegotiation for said fiscal year. The resolution also authorized the execution and delivery of any and all papers and agreements that might be necessary or appropriate to extend the time for completion and to bring to a conclusion the renegotiation proceedings.
The resolution was forwarded to OCE on January 26, 1945, and its receipt was acknowledged by OCE by letter dated February 6, 1945.
By order dated December 14, 1945, WCPAB through WDPAB determined that $ 1,202,539.70 represented excessive profits for petitioner's fiscal year ended December 31, 1943, which should be eliminated. No review of this order being had, petitioner (c/o General Finance Corporation) was notified of its finality by WCPAB on April 15, 1946.
The excessive profits of $ 1,202,539.70 included $ 599,268.46 of profits attributable to the three contracts.
OPINION.
In this proceeding the petitioner is contesting the unilateral determination of excessive profits for the year 1943 on1953 U.S. Tax Ct. LEXIS 130">*154 two grounds: (1) that there were erroneously included therein profits earned by it under three contracts which had been previously renegotiated pursuant to the agreement dated July 16, 1943, and (2) that the order entered on behalf of the respondent determining excessive profits 20 T.C. 537">*547 for 1943 was not entered within 1 year following the commencement of renegotiation.
1. The petitioner's first contention is that the effect of the agreement of July 16, 1943, was to remove from consideration by the War Contracts Price Adjustment Board, in connection with the renegotiation of its business for the year 1943, the proceeds and profits derived from the three contracts enumerated in paragraph III of the agreement. It argues that paragraph VI constituted a final and conclusive determination of its excessive profits under these contracts to the extent set forth in paragraph III for the year 1943, which should be eliminated, subject to the right of the Under Secretary of War, in his discretion, to reopen the renegotiation if the data furnished by it pursuant to paragraph V showed the actual results of its operations to be materially at variance with the estimates on which the finding was1953 U.S. Tax Ct. LEXIS 130">*155 based. Petitioner urges that the right to reopen was a contractual right reserved to the Under Secretary in a renegotiation agreement; that it could be exercised only in accordance with the terms of the agreement; that the Under Secretary never exercised his discretion and no reopening was ordered by him; that SWEPAB in the letter of June 5, 1944, purported to exercise the authority of the War Contracts Price Adjustment Board, when it advised petitioner that all matters in anywise relating to a consideration of its business for the fiscal year 1943 "pursuant to the Renegotiation Act, shall be and are hereby reopened"; that this effort by the Board "pursuant to the Renegotiation Act" was an effort to exercise authority which the Board did not possess; and that the finding of the unilateral order covering its fiscal year ended December 31, 1943, improperly included $ 599,268.46 of profits attributable to the three contracts.
The respondent contends that the agreement of July 16, 1943, was a final and conclusive renegotiation agreement as to 1942 and was merely a repricing agreement for existing enumerated contracts to be performed by petitioner during 1943; that petitioner and SWEPAB1953 U.S. Tax Ct. LEXIS 130">*156 agreed in paragraph VI that the agreement was final and conclusive as to (a) 1942 and (b) the contracts and purchase orders enumerated in paragraph III "to the extent as set forth in Paragraph III * * * for * * * 1943"; that by paragraph III, SWEPAB made no representation or agreement that the refund of 22 1/2 per cent of "actual net sales" on the three contracts would accomplish the complete elimination of excessive profits from those contracts; that both parties specifically agreed therein that the provisions of that paragraph were without prejudice to the right to renegotiate subsequently all of petitioner's profits for any year after 1942, including profits from the three contracts during 1943; that the agreement was not and was never intended to accomplish the renegotiation of any of petitioner's 1943 20 T.C. 537">*548 income whether such income was derived from the three contracts or other sources; and that, if it was necessary, the Under Secretary of War properly reopened petitioner's 1943 renegotiation in accordance with the terms of paragraph VI of the agreement. The respondent also urges that if the agreement constituted a renegotiation agreement for the enumerated contracts for1953 U.S. Tax Ct. LEXIS 130">*157 1943, SWEPAB was without authority to execute it.
SWEPAB, as delegate of the renegotiating authority, was authorized in the early part of 1943 to renegotiate the petitioner to determine whether it realized excessive profits which should be eliminated in connection with its renegotiable business for 1942. This renegotiation disclosed that the petitioner had realized from its war contracts during 1942 excessive profits in the amount of $ 556,000 which should be recaptured. The Renegotiation Act of 1942 3 was designed not only to recover excessive profits for the period under review (in this instance 1942) but also to prevent the accrual of excessive profits "likely to be realized." Section 403 (c) (4). 4 Having ascertained that petitioner's war contracts yielded excessive profits during 1942 SWEPAB took up with the petitioner the matter of reducing prices upon deliveries under its war contracts subsequent to 1942, which was from time to time referred to in the negotiations as "forward pricing." The result was an agreement which not only determined the amount of petitioner's excessive profits for 1942 which should be eliminated (paragraph I) but which also required petitioner to1953 U.S. Tax Ct. LEXIS 130">*158 reduce its prices on deliveries to be made under three enumerated contracts subsequent to 1942 by refunding or crediting 22 1/2 per cent of the actual net sales from these contracts (paragraph III).
1953 U.S. Tax Ct. LEXIS 130">*159 The petitioner would have us interpret the provisions of paragraph VI of the agreement in such a manner that the 22 1/2 per cent refund or credit provided for in paragraph III would constitute a final and conclusive determination of profits derived from the three contracts during 1943, which should be eliminated. We are convinced that this 20 T.C. 537">*549 would not give effect to the intention of the parties as expressed in the agreement and as reflected in the negotiations which preceded its execution. At the time the agreement was executed no actual figures were available which would permit the final determination of the profits from the three contracts which should be eliminated. It is apparent from the provisions of paragraph III that the 22 1/2 per cent credit or refund represented merely an estimate of the amount necessary to eliminate excessive profits from these contracts. The respondent did not enter into any agreement that such credit or refund would fully accomplish this result, and in the concluding sentence of paragraph III the parties agreed that the provisions of that paragraph should be "without prejudice to subsequent renegotiation * * * relating to any fiscal year 1953 U.S. Tax Ct. LEXIS 130">*160 subsequent to the fiscal year ending December 31, 1942." Thus the parties clearly indicated that the provisions of paragraph III were to be final, only to the extent that they required the 22 1/2 per cent refund or credit, and left the renegotiating authority free to recapture by subsequent renegotiation any excessive profits that the required refund or credit did not eliminate.
The first part of paragraph VI neither adds to nor detracts from the provisions of paragraph III for it provides that the finding (in paragraph III) shall be deemed a final and conclusive determination of the profits under the contracts "to the extent as set forth in paragraph III hereof for the fiscal year 1943," which should be eliminated. Inasmuch as paragraph III made no final and conclusive determination as to the profits under the contracts, in excess of the 22 1/2 per cent refund, which should be eliminated, the effect of this provision of paragraph VI is to make the finding in paragraph III a final and conclusive determination of profits which should be eliminated only to the extent of the 22 1/2 per cent refund.
Paragraph VI also provides that the Under Secretary of War or his duly authorized representative1953 U.S. Tax Ct. LEXIS 130">*161 should have the right "to reopen the renegotiation in his discretion at any time within sixty (60) days after the contractor shall have filed with the Under Secretary of War a statement of financial statements provided for in paragraph V herein, if the actual figures with respect to such factors as cost, volume or production and nature of products prove to be materially at variance with the estimates on which the finding herein was based * * *." The finding referred to was the provision in paragraph III for the 22 1/2 per cent refund. Why a provision "to reopen the renegotiation" to determine the amount of any excessive profits which the 22 1/2 per cent refund did not eliminate was inserted in paragraph VI is not clear since renegotiation to determine such profits was expressly kept open in the last sentence of paragraph III. Renegotiation as to them 20 T.C. 537">*550 never having been closed, no reopening of the renegotiation was necessary. The provision for reopening, in paragraph VI, to the extent that it might relate to the three contracts, therefore could serve no useful purpose. 51953 U.S. Tax Ct. LEXIS 130">*163 The fact that petitioner would not agree to its elimination, and that it was a part of the agreement1953 U.S. Tax Ct. LEXIS 130">*162 executed, did not nullify the agreement of the parties as set forth in the concluding sentence of paragraph III. Therein the parties, by clear and unambiguous language, agreed that the 22 1/2 per cent refund or credit was not to affect or restrict "subsequent renegotiation * * * relating to any * * * year subsequent to * * * 1942." Section 403 (c) (4), footnote 4,
2. The remaining contention of the petitioner is that the entry of the unilateral order on December 14, 1945, was made after the expiration of the 1-year period of limitation provided in section 403 (c) (3) of the Renegotiation Act, 8 and that the time extension agreement of 20 T.C. 537">*551 December 19, 1944, did not serve to cure this defect because it was an agreement between the General Finance 1953 U.S. Tax Ct. LEXIS 130">*164 Corporation and the respondent, and not between the petitioner and the respondent.
1953 U.S. Tax Ct. LEXIS 130">*165 The parties to the extension agreement were the General Finance Corporation and the respondent, and it was signed for General Finance Corporation by the chairman of its board of directors pursuant to authority conferred upon him by resolution of the board adopted at its meeting on December 16, 1944. The agreement provided as follows:
(1) Renegotiation pursuant to the Renegotiation Act between the War Contracts Price Adjustment Board or its duly authorized representative and the Contractor with respect to amounts received or accrued by the Hanlon Waters, Inc. division of the said General Finance Corporation for the fiscal year ended the 31st day of December 1943, was commenced the 5th day of June 1944.
(2) In accordance with the provisions of clause (B) of the second sentence of subsection (c) (3) of the Renegotiation Act, the time within which a determination of the amount of excessive profits, if any, derived by the Contractor from contracts with the Departments and subcontracts for the Contractor's fiscal year ended the 31st Day of December 1943, may be made by agreement or order is hereby extended to and including the 31st day of December 1945.
Since the order herein was entered1953 U.S. Tax Ct. LEXIS 130">*166 on December 14, 1945, within the period as extended by the foregoing agreement, it was timely unless the agreement itself was ineffective. We think that the agreement was a "mutual agreement" within the meaning of section 403 (c) (3) (B), footnote 8,
As of March 31, 1944, petitioner's sole stockholder, General Finance Corporation, acquired all of its assets, assumed its liabilities, and it was dissolved. Thereafter General Finance Corporation operated the former facilities of the petitioner under the same management as the Hanlon-Waters Division, General Finance Corporation. Even though the statutory provisions of the Delaware Corporation Law relating to mergers 9 may not have been fully complied with, the transfer as effected resulted in a de facto merger and the corporate1953 U.S. Tax Ct. LEXIS 130">*167 personality of the petitioner was "drowned" in that of the General Finance Corporation. Cf.
1953 U.S. Tax Ct. LEXIS 130">*168 The provisions of the agreement clearly indicate that its purpose was to extend the time within which a determination of excessive profits could be made against petitioner to December 31, 1945. At the time it was executed the petitioner was dissolved and its identity submerged in that of the General Finance Corporation. There is no indication that any receiver or trustee was appointed who could act for the petitioner in the proceedings to determine its excessive profits, if any, for the year 1943. 11 The only person or entity that could be adversely affected by such a determination was General Finance Corporation. If it, as successor of petitioner and the real party in interest, could not act for the petitioner in the execution of the "mutual agreement" specified in section 403 (c) (3) (B), it is difficult to see who could. We hold that the agreement in question was a "mutual agreement" within the meaning of the statute, and that it is a matter of no moment whether General Finance Corporation be regarded as acting on behalf of petitioner or on behalf of itself. 12 The extension agreement was effective to extend the statutory period to December 31, 1945, and since the order1953 U.S. Tax Ct. LEXIS 130">*169 was entered within the period as extended it was timely.
1953 U.S. Tax Ct. LEXIS 130">*170 20 T.C. 537">*553 The unilateral determination that the petitioner had excessive profits for the year ended December 31, 1943, which should be eliminated, in the amount of $ 1,202,539.70, is approved. The parties have stipulated that $ 398,016.50 of this amount was eliminated by a prepayment on October 2, 1945, and that the balance due is $ 804,523.20.
1. The letter of transmittal was signed "James E. Allison, Attorney, Hanlon-Waters Division, General Finance Corporation." Allison had represented the petitioner in the negotiations preceding the execution of the July 16, 1943, agreement.↩
2. The agreement was executed for the General Finance Corporation by Owen L. Coon, Chairman of its Board of Directors, and for the respondent by Maurice Hirsch, Chairman of WDPAB, acting on behalf of WCPAB.↩
3. Sec. 403 of the Sixth Supplemental National Defense Appropriation Act, 1942 (Public 528, 77th Cong.), approved Apr. 28, 1942, as amended by sec. 801 of the Revenue Act of 1942 (Public 753, 77th Cong.), approved Oct. 21, 1942; by the Military Appropriation Act, 1944 (Public 108, 78th Cong.), approved July 1, 1943; and by Public 149, 78th Cong., approved July 14, 1943.↩
4. Section 403 (c) (4) provides:
Upon renegotiation pursuant to this section, the Secretary may make such final or other agreements with a contractor or subcontractor for the elimination of excessive profits and for the discharge of any liability for excessive profits under this section, as the Secretary deems desirable. Such agreements may cover such past and future period or periods, may apply to such contract or contracts of the contractor or subcontractor, and may contain such terms and conditions, as the Secretary deems advisable. Any such agreement shall be final and conclusive according to its terms; and except upon a showing of fraud or malfeasance or a wilful misrepresentation of a material fact, (i) such agreement shall not be reopened as to the matters agreed upon, and shall not be modified by any officer, employee, or agent of the United States; and (ii) such agreement and any determination made in accordance therewith shall not be annulled, modified, set aside, or disregarded in any suit, action, or proceeding.↩
5. If it be assumed that paragraphs III and VI are in conflict, it is a recognized canon of construction that where repugnant clauses of a contract are irreconcilable, that provision which expresses the chief object and purpose of the contract must prevail, and other provisions subordinate to such object and purpose must give way. Cf.
6. Section 403 of the Sixth Supplemental National Defense Appropriation Act of 1942 (Public 528, 77th Congress), as amended, was comprehensively amended by Section 701 of the Revenue Act of 1943 (Public 235, 78th Congress), enacted Feb. 25, 1944, and became the "Renegotiation Act."↩
7. Since the determination before us relates to the entire year 1943, which had not previously been the subject of renegotiation proceedings, and since it is undisputed that it undertakes to deal comprehensively with all profits realized by petitioner in 1943 that were subject to renegotiation, the decision in
8. (3) No proceeding to determine the amount of excessive profits shall be commenced more than one year after the close of the fiscal year in which such excessive profits were received or accrued, or more than one year after the statement required under paragraph (5) is filed with the Board, whichever is the later, and if such proceeding is not so commenced, then upon the expiration of one year following the close of such fiscal year, or one year following the date upon which such statement is so filed, whichever is the later, all liabilities of the contractor or subcontractor for excessive profits received or accrued during such fiscal year shall thereupon be discharged. If an agreement or order determining the amount of excessive profits is not made within one year following the commencement of the renegotiation proceeding, then upon the expiration of such one year all liabilities of the contractor or subcontractor for excessive profits with respect to which such proceeding was commenced shall thereupon be discharged, except that * * * (B) such one-year period may be extended by mutual agreement.↩
9. Secs. 59, 59A, and 60, Delaware Corporation Law.↩
10. Sec. 42. All corporations, whether they expire by their own limitation, or are otherwise dissolved, shall nevertheless be continued for the term of three years from such expiration or dissolution bodies corporate for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their business, to dispose of and convey their property, and to divide their capital stock but not for the purpose of continuing the business for which said corporation shall have been established * * *.↩
11. See section 43 of the Delaware Corporation Law.↩
12. In upholding the validity of waivers by a consolidated corporation in
"The waivers in question, we think, were valid and must be given effect according to their terms. At the respective dates of execution of these waivers the original taxpayer corporations had long been dissolved as a result of the act of consolidation (see
