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FEDERAL REGISTER, Thursday, January 19, 1939
for tax collection. If depositors have agreed to accept payment out of seg regated assets only, collection of tax from unsegregated assets will not dimin ish the assets available and necessary for payment of the depositors claims.
Thus, it may be possible to collect taxes from the unsegregated assets of a bank although the segregated assets are im mune under the section.
If the unsegregated assets of the bank remain subject to any portion of the de positors claims, such unsegregated as sets will be within the immunity of the section only to the extent necessary to satisfy the claims to which such assets are subject. Taxes will still be collect ible from the unsegregated assets to the extent of the amount by which the total value of such assets exceeds the liability to depositors to be satisfied therefrom.
b Depositors claims against earn ings.Even though under a bona fide agreement a bank has been released from depositors claims as to unsegregated as sets, if all or a portion of its earnings are subject to depositors claims, all as sets the earnings from which, in whole or part, are charged with the payment of depositors claims, will be immune from tax collection. But see article 7.
Art. 7. Income.a Availability for tax collection.Income, whether from segregated or unsegregated assets, which is necessary for, applicable to, and actu ally used for, payment of depositors claims, is within the immunity of the section. If only a portion or percentage of income from segregated or unsegre gated assets is available and necessary for payment of depositors claims, the remaining income is available for tax collection.
b Tax liability.The fact that earn ings may be wholly or partly unavailable under the section for collection of taxes does not exempt the income, or any part thereof, from tax liability. The section affects collectibility only, and is not con cerned with taxability. Accordingly, the tax on income of a given year shall ordi narily be determined, even though, under the section, assessment and collection must be postponed. The tax shall be determined with respect to the entire taxable income and not merely with re spect to the portion of the earnings out of which tax may be collected.
c Example.An agreement between a bank subject to tax under section 14
d of the Revenue Act of 1938 and its depositors provides a th at certain assets are to be segregated for the benefit of the depositors who have waived a per centage of their deposits; b that 60
percent of the banks earnings shall be paid to the depositors until the portion of their claims not waived has been paid;
and c that the unsegregated capital assets shall not be subject to depositors claims. The special class net income of the bank for the calendar year 1938 is $10,000, and that amount also consti
tutes its earnings for that year. The bank has an outstanding tax liability for prior years of $7,000. The income tax liability of the bank for 1938 is 16%
percent of $10,000, or $1,650, making a total outstanding tax liability of $8,650.
The portion of the earnings of the bank for 1938 available for tax collection after provision for depositors is $4,000 $10,000
less 60 percent, or $6,000. Of the total outstanding tax liability of $8,650, $4,000
may be assessed and collected immedi ately, leaving $4,650 to be collected from the 40 percent of future annual earnings not covered by the agreement, from any excess of the segregated assets over the amount due depositors therefrom, and from, unsegregated assets to the extent that collection of tax therefrom will not reduce the earnings to which depositors are entitled under the agreement. See article 6 b.
A rt. 8. Abatement and refund.A n assessment or collection, whether made before or after the amendment, contrary to the section when made, is subject to abatement or refund within the appli cable statutory period of limitations.
An abatement or refund after the amendment is equally allowable whether assessment o r ,collection was erroneous because collection would diminish assets necessary for payment of depositors, or because the same tax had been properly abated or refunded on or before the effec tive date of the amendment, and reas sessed or collected after such date. See article 12. However, in the absence of prior abatement or refund on or before the date of the amendment, a claim for abatement or refund will not be allowed if, at the time of examination of the claim, collection would not diminish the assets necessary for payment of deposi tors. If there was a prior proper abate ment or refund on or before the effec tive date of the amendment, a claim for abatement or refund of the same tax re assessed or recollected after the effective date of the amendment may be allowed even though the assets are sufficient to meet claims of depositors.
A tax assessed prior to the effective date of the amendment and in accord ance with the section as it then existed is subject to abatement where assessment, had it been made after the effective date of the amendment, would have been con trary to the amended section. However, tax properly collected in accordance with the section prior to amendment, may not be refunded thereafter even though col lection after the effective date of the amendment would have been contrary to the amended section.
Any abatement or refund is subject to existing statutory periods of limitation, which periods are not suspended or ex tended by the amended section.
A rt. 9. Establishment of immunity.
The mere showing of insolvency, or th at depositors have claims against segre gated or other assets or earnings will
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not of itself secure immunity from tax collection. It must be affirmatively es tablished to the satisfaction of the Com-, missioner th at collection of tax will diminish the assets necessary for pay ment of depositors claims. See also article 10.
Any claim of immunity under the sec tion shall be supported by a statement, under oath or affirmation, which shall show a the total of depositors claims outstanding, and b separately and in detail, the amount of each of the follow ing, and the amount of depositors claims properly chargeable against each1
segregated or transferred assets; 2 un segregated assets; 3 estimated future average annual earnings and profits; 4
amount collectible from shareholders;
and 5 any other resources available for payment of depositors claims. The detail shall show the full amount of de positors claims chargeable against each of the items 1 to 5, inclusive, even though part or all of the amount charge able against a particular item is also chargeable against some other item or items. There shall also be filed a copy of any agreement between the bank and its depositors, and any other agreement bearing on the claim of immunity under the section.
A rt. 10. Procedure during immunity.
As long as, pursuant to the section, any tax remains unpaid, the bank shall file with each income tax return a state ment as required by article 9, in dupli cate, and shall also file such additional statements as the Commissioner may re quire. Whether or not such additional statements shall be required, and the fre quency thereof, will depend on the cir cumstances, including the financial status and apparent prospects of the bank, and the time which is available for assessment and collection after the bank becomes financially able to pay taxes without diminishing the assets nec essary for payment of depositors claims.
A rt. 11. Termination of immunity.
Immunity under the section is terminated whenever, within the statutory period of limitations as extended by the section, the tax can be collected without diminish ing the assets necessary for payment of depositors claims, including claims of new depositors secured during the period of immunity from tax collection. For the immunity to end, the assets must be suffi cient to cover any rem aining balance still due under the agreement and any out standing additional deposits made by the same or other depositors subsequent to the agreement. In other words, the bar of the section, when once in force, is ter minated only as, and to the extent that, collection may be made without dimin ishing assets available for satisfaction of all outstanding depositors, claims, re gardless of when their deposits were made.
While the immunity from tax collec tion is for protection of depositors only,