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UNITED STATES STEEL CORP. v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 14, 1970

UNITED STATES STEEL CORPORATION, Plaintiff,
v.
UNITED STATES of America, Defendant

Levet, District Judge.

The opinion of the court was delivered by: LEVET

OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

LEVET, District Judge.

 This opinion involves issues in an action by United States Steel Corporation ("U. S. Steel") against the United States, pursuant to 28 U.S.C. § 1346(a) (1), for refund of certain 1950 income and excess profits tax payments, together with interest. By agreement of the parties, the present issues were tried by the court without jury. (2-4) *fn1"

 PRIOR PROCEEDINGS IN THIS LITIGATION

 A. The Complaint

 In a complaint dated September 30, 1965 and filed October 11, 1965, U. S. Steel *fn2" brought suit under 28 U.S.C. § 1346(a) (1) to recover portions of federal income tax paid for the year 1950. Plaintiff claimed that certain 1950 federal income and excess profits tax payments were erroneously and illegally assessed and collected.

 In general, U. S. Steel maintained in the complaint:

 1. That it was entitled to additional depletion deductions for the year 1950.

 2. That certain alleged abnormalities occurring during 1947, 1948 and 1949 should have been considered by defendant in the computation of the "average base period net income" figure for the relevant base period years 1947-1949, which figure was used to determine the extent to which U. S. Steel was subject to income and excess profits taxes for the year 1950. The abnormalities alleged were (a) low quality of coking coal and iron ore, resulting in loss of production; (b) abnormal cost-price relationships, resulting in the depression of plaintiff's business and earnings; (c) numerous and protracted strikes, resulting in the interruption and diminution of plaintiff's normal production, output and operation; and (d) other abnormalities referred to at the time plaintiff's 1950 consolidated federal income and excess profits tax return was filed.

 3. That, if it be determined that plaintiff is entitled to no relief or only certain partial relief under 2 above, plaintiff should be entitled to press an alternative claim for disallowance of deductions for certain "strike expenses."

 B. Rulings on Motions for Summary Judgment

 As to plaintiff's claim for additional depletion deductions, both parties moved for summary judgment. On May 19, 1967, this court denied plaintiff's motion and granted defendant's motion, holding in substance that, for the purpose of calculating the deduction for percentage depletion under 26 U.S.C. §§ 23(m) and 114(b) (4) of the Internal Revenue Code of 1939, plaintiff, as lessee, could not include payments of Minnesota ad valorem and royalty taxes in its gross income from mining. 270 F. Supp. 253 (S.D.N.Y.1967).

 As to plaintiff's claim that "low quality of coking coal and iron ore, resulting in loss of production" was a qualifying abnormality for excess profits tax purposes within the meaning of 26 U.S.C. Excess Profits Taxes § 442 (1939 Code), the defendant moved for summary judgment. The motion was granted on July 1, 1969 and plaintiff's subsequent motion for reargument was denied on October 2, 1969. In substance, this court held as a matter of law that war-induced shortages of men and materials and delays by suppliers and subcontractors during the period of 1941 to 1948 may not constitute the basis for relief under § 442, because effects directly attributable to United States government policies during World War II, including post-war competitive pressures engendered by wartime conditions, are not qualifying abnormalities within the meaning of the statute. 305 F. Supp. 497 (S.D.N.Y.1969), 305 F. Supp. 516 (S.D.N.Y.1969).

 As to plaintiff's claim that "abnormal cost-price relationships, resulting in the depression of Plaintiff's business and earnings" constituted a qualifying abnormality within the meaning of § 442, the defendant moved for summary judgment. The motion was granted on July 1, 1969 and plaintiff's subsequent motion for reargument was denied on October 2, 1969. This court held in substance that the factors submitted by plaintiff were not shown to consist of more than the valid exercise of governmental regulatory authority or competitive pressures which businessmen must reasonably expect in the course of their operations. 305 F. Supp. 508 (S.D.N.Y.1969), 305 F. Supp. 516 (S.D.N.Y.1969).

 C. Issues Remaining for Trial

 The present proceedings arise primarily from U. S. Steel's allegations in the complaint that "numerous and protracted strikes, resulting in the interruption and diminution of Plaintiff's normal production, output and operation; and other abnormalities" qualify as "unusual" occurrences under § 442. U. S. Steel now contends that the allegedly "unusual" events -- a 1948 explosion, two 1948 strikes by the United Mine Workers and a 1949 strike by the United Steel Workers -- significantly affected plaintiff's taxable income within the meaning of § 442(a) during the years 1948 and 1949, which years were designated as part of the base period pursuant to the Excess Profits Tax Act of 1950, 26 U.S.C. Excess Profits Taxes § 430 et seq. As a result of the alleged effects of these events on its taxable income in 1948 and 1949, plaintiff suggests, the defendant should have computed U. S. Steel's "average base period net income" for the relevant base period years 1947-1949 in accordance with relief provisions contained in § 442, so as to decrease the amount of tax owed for 1950 by the taxpayer.

 If it develops that plaintiff is not entitled to any application of § 442 for 1948 and 1949 or that it is entitled to § 442 application for only one of the years (i. e., 1948 or 1949), plaintiff presents an alternative claim under 26 U.S.C. Excess Profits Taxes § 433(b) (9) for disallowance of deductions for certain "strike expenses" incurred in the year 1949. If U. S. Steel should then be eligible for application of § 442 and § 433(b) (9) for 1949, plaintiff may opt for application of whichever section would afford greater relief to the taxpayer. (Stipulation, May 26, 1970) period years for which it seeks application of § 442. If more than one qualifying abnormality has been established for a particular year, the properly established effects of each of the qualifying abnormalities on the taxpayer's income for that year may then be aggregated for purposes of determining whether the taxpayer has made the required showing of "significant and not trivial" diminution in its normal productive process for that year due to any qualifying abnormalities. See Reg. 130 (1939 Code), § 40.442-2(a) (2).

 Since the parties agree that the 1948 explosion and the 1949 strike by the United Steel Workers were qualifying abnormalities under § 442, the court need consider only the extent of the quantitative effects of those events on U. S. Steel's income for each of the years involved. With respect to the 1948 strikes by the United Mine Workers, the parties disagree on the initial issue of unusualness. *fn3" The court must therefore determine whether the 1948 strikes were in the first instance qualifying abnormalities within the meaning of § 442(a) (1).

 The regulations advise that an event during a base period year may be "unusual" in the "experience of the taxpayer" if occurrence of the event "is not ordinarily encountered in the taxpayer's business operations." If unusualness is established, the taxpayer must also establish that any "unusual" occurrences in a base period year significantly interrupted "normal production, output, or operation," defined as "the level of production, output, or operation customary for the taxpayer, determined on the basis of the actual experience of the taxpayer up to the time" the "unusual" event occurred. Reg. 130, § 40.442-2(a) (1) (2) (3). *fn4"

 There can be no dispute that a strike is an event within the purview of § 442(a) (1). Reg. 130, § 40.442-2(a) (3) ("* * * events include floods, fires, explosions, strikes, and other exceptional and uncommon circumstances hindering production, output or operation."); Sen. Rep. No. 2679, 81st Cong., 2d Sess., dated December 18, 1950, as quoted in Internal Revenue Cumulative Bulletin 1951-1, 252 ("* * * [the World War II] law provided relief * * * because of a physical interruption to production, such as a fire, strike, or flood, * * *. Your committee's bill provides relief in these same areas.").

 In discussing a framework for analysis of the factual record presented at trial, plaintiff argues (1) that strikes by the United Mine Workers (which affect U. S. Steel's coal-producing facilities and may also result in interruption of production at plaintiff's steel-making facilities) and strikes by the United Steel Workers against plaintiff's steel-making facilities should be considered as separate and distinct types of events under § 442; and (2) that a strike or strikes during a taxpayer's base period might be deemed "unusual" under § 442 if the strikes in question had a substantially greater impact on production and shipments than other strikes in the years before the base period.

 After a careful study of the statute, regulations, legislative history and prior judicial determinations, I believe plaintiff's first proposition is unsound, and its second generally sound.

 A. A Strike As An Event

 According to the appropriate regulation, "* * * events include * * * strikes, and other exceptional and uncommon circumstances hindering production, output, or operation." (Emphasis added) Reg. 130, § 40.442-2(a) (3). A strike is thus viewed as an occurrence which hinders production, output or operation.

 Similarly, the Senate Committee on Finance, referring to a strike as an event, focused on a strike as a potential interruption of production: "* * * [the law provides relief] when * * * the income * * * was substantially abnormal because of a physical interruption to production, such as a * * * strike * * *." (Emphasis added) Sen.Rep.No. 2679, 81st Cong., 2d Sess., as quoted in I.R.C.B. 1951-1, 252.

 In essence, the type of event contemplated is a strike which interrupts production. In evaluating a strike as an event, the court must consider it primarily in the sense of a physical interruption of production brought about by labor-management difficulties. Another court, considering whether a strike during a base period year was an "unusual" event in the taxpayer's experience, referred to the taxpayer's overall "labor history" and "labor picture." See New York Shipbuilding Corporation v. United States, 237 F. Supp. 995, 1001 (D.N.J.1965), aff'd per curiam, 362 F.2d 550 (3rd Cir. 1966).

 U. S. Steel has been engaged principally "in the integrated business of making and selling iron and steel products" since 1901. (Stipulation, June 10, 1970) Plaintiff's production and shipment of iron and steel products might be subject to interruption because of a strike either by the United Mine Workers or the United Steel Workers. It is of course possible that a strike by the United Mine Workers against plaintiff's coal-producing facilities might not affect plaintiff's production of iron and steel products, for coal production is but one step in the ultimate production and shipment of iron and steel products. However, insofar as the record may indicate that a coal strike and resultant unavailability of coke did interrupt iron and steel production at plaintiff's steel-making facilities, it seems inappropriate to segregate the effects of a coal strike on such production in a given year from the effects of a steel strike on such production in the same year.

 The court believes that the proper analytical yardstick (for determining whether the two 1948 strikes by the United Mine Workers were "unusual" under § 442) is physical interruption of U. S. Steel's production and shipments of iron and steel products due to strikes against plaintiff's production facilities, whether by the United Mine Workers, the United Steel Workers, or another union representing other employees of U. S. Steel.

 B. Comparing the Effects on Production and Shipments of the 1948 Strikes and Strikes in Other Relevant Years

 An event may be declared "unusual" within the meaning of § 442 if its occurrence "is not ordinarily encountered in the taxpayer's business operations." Reg. 130, § 40.442-2(a) (3).

 U. S. Steel, while acknowledging that strikes or work stoppages against its production facilities by the United Mine Workers and the United Steel Workers had occurred in the years before 1948, contends that the two 1948 strikes by the United Mine Workers were "unusual" events because of their impact upon the production of iron and steel. (Plaintiff's First Reply Memorandum Re 1948 Coal Strikes, April 9, 1970, p. 4)

 There is authority for the general principle that an event need not be unique for it to be considered "unusual" under § 442.

 In Oxford Paper Co., 33 T.C. 943 (1960), rev'd on other grounds, 302 F.2d 674 (2nd Cir. 1962), the Tax Court decided that a drought in the base period years 1947 and 1948 was an "unusual" event under § 442. After weighing such factors as average rainfall in the years 1894-1945 and average monthly river flow in the years 1912-1946, the Tax Court found that the 1947-1948 drought "was of greater intensity and of longer duration than any other that Oxford has experienced during its considerable history," and held that the drought in question was "so severe" as to constitute a qualifying abnormality within the meaning of § 442(a) (1). See 33 T.C. at 953, 959. See also the reference in New York Shipbuilding, supra at 998, to the Tax Court's findings in Oxford Paper ("There had been other droughts, but none so severe.").

 Since § 442(a) (1) requires that events during a year or years within the base period be "unusual" in the experience of the taxpayer, it seems appropriate to compare the event or events (proposed as "unusual" occurrences in the base period) with the same type of events in the taxpayer's experience before the onset of the base period. See Oxford Paper Company v. Commissioner, supra, 302 F.2d at 678; New York Shipbuilding, supra, 237 F. Supp. at 1001. Therefore, in a determination of whether the 1948 strikes were "unusual" events, the court believes that the occurrence of strikes during the base period years 1946 and 1947 should not be dispositive. Still another reason for excluding consideration of any 1946 strikes on the issue of unusualness is the procedure set forth in §§ 435(d) (2) and 442(b) (2) (A) of the Korean War Act. Although the Act provided a base period consisting of the years 1946-1949 (§ 435(b)), a taxpayer is entitled under § 435(d) (2) and § 442(b) (2) (A) to eliminate automatically the least profitable year during the period, irrespective of whether any abnormality allegedly within the scope of § 442(a) had occurred. See Oxford Paper Company v. Commissioner, supra, 302 F.2d at 676. U. S. Steel chose to eliminate the year 1946 (Complaint, dated September 30, 1965, p. 3).

 Plaintiff alleges that the 1948 coal strikes reduced its 1948 income by causing certain increased costs as well as lost income from production and shipment of iron and steel products. It is true that certain increased costs may be considered (in addition to income losses in production and shipments) for purposes of a determination whether a qualifying abnormality or qualifying abnormalities interrupted the taxpayer's normal productive process in a relevant base period year to the extent required, i. e., significant and not trivial. However, a qualifying abnormality or qualifying abnormalities must first be established before any increased costs may be considered. It may be noted that plaintiff has not claimed that the 1948 strikes were qualifying abnormalities because of alleged increased costs resulting from the strikes; rather, it maintains that any such costs are relevant only to the determination of whether there was a significant impact on income in 1948 as a result of an occurrence or occurrences already found to be "unusual" within the meaning of § 442(a). (Plaintiff's Third Reply Memorandum Re 1948 Coal Strikes, April 27, 1970, pp. 4-5)

 I conclude that determination of whether the two 1948 strikes were "unusual" under § 442 should be based upon a comparison of losses of shipments of iron and steel products in 1948 (as a result of the two 1948 strikes) *fn5" with losses of shipments of iron and steel products on a yearly basis as a result of strikes against U. S. Steel's production facilities in years before 1946,5A the beginning of the statutory base period. It would be impossible of course to determine such losses with exactitude. By sifting the record, the court strives to fashion a reasonable approximation from the evidence presented.

 THE NATURE OF PLAINTIFF'S EVIDENCE RELATING TO ESTIMATES OF PRODUCTION LOSSES DUE TO STRIKES

 During the course of the trial, which ran approximately twenty-two days, more than two-hundred exhibits submitted by plaintiff and defendant were admitted into evidence. Among these were plaintiff's exhibits 132-143, 128, 124, 55, 56, 94-97, all of which were admitted as business records within the ambit of 28 U.S.C. § 1732(a).

 28 U.S.C. § 1732(a) provides in relevant part:

 

"In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

 

"All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. * * *"

 In the landmark case of Palmer v. Hoffman, 318 U.S. 109, 114, 63 S. Ct. 477, 480, 87 L. Ed. 645 (1943), Justice Douglas, speaking for a unanimous court, stated that the basic standards for admissibility under § 1732 are "the character of the records and their earmarks of reliability * * * acquired from their source and origin and the nature of their compilation." The trial judge is in the best position to gauge the regularity and trustworthiness of a record proposed as evidence. See Gaussen v. United Fruit Company, 412 F.2d 72, 74 (2nd Cir. 1969).

 Exhibits 132-136, 138, 140-143 are said to include each of the available "Form B" reports prepared at production plants of U. S. Steel subsidiaries as an estimate of production losses due to strikes or work stoppages *fn6" during the years 1941 to 1950. Available contemporaneous lists of the "Form B" reports were submitted for the years 1944 (Ex. 139) and 1945 (Ex. 137).

 Exhibit 128 is a summary prepared by U. S. Steel's Cost and Statistics Division of "Work Stoppages -- Detail," including estimates of production losses and man-hour losses for the years 1942-1950. Exhibit 124 is essentially a summary of figures contained in Exhibits 132-143 and 128. Exhibits 55 and 56 are summaries which, according to plaintiff, show production losses sustained by U. S. Steel manufacturing subsidiaries as a result of the United Mine Workers' strikes in March-April 1948 and July 1948, respectively. Exhibits 94-97 are summaries of estimated production losses resulting from "Coal Miners Strike -- April 1 to May 29, 1946" (Ex. 94); "Coal Mine Work Stoppages [for] Period Ended June 27, 1947" (Ex. 95); "Strike Losses [during 1949]" (Ex. 96); and "Work Stoppages -- Delaware Contract Companies [for period from] V-J Day through June 30, 1950" (Ex. 97).

 This court has repeatedly attempted to elicit information from the parties in order to pinpoint the issues in this case. I believe that the ensuing account demonstrates that plaintiff and defendant have had adequate opportunities throughout the course of the proceedings to prepare and submit evidence for the court's consideration. The evidentiary value of the exhibits and testimony mentioned in this discussion is determined in the court's Findings of Fact, infra.

 Leverne J. King, a U. S. Steel employee from 1929 to 1969, and Bracy D. Smith, an employee of plaintiff almost continuously since 1940, testified in somewhat general terms during the first week of the trial about U. S. Steel's procedures for the reporting of estimated production losses due to strikes and work stoppages.

 King stated that on May 1, 1944 he was assigned to develop the cost accounting system for plaintiff's subsidiaries. On May 1, 1945, he became cost and statistics supervisor responsible for seeing that plaintiff's steel-producing subsidiaries "compiled data on a consistent basis." From May 1, 1945 through 1950, his basic function was to receive reports and records from U. S. Steel subsidiaries; to consolidate reports by companies; and to provide a service to plaintiff's central management in reporting "both the usual routine things and also the out of the ordinary things for their information and guidance, to have them improve their effectiveness." (653-655) For the period 1945 to 1950, the "collection of reports on strikes and work stoppages" was a regular procedure. (King, 659)

 Smith testified that in the spring or summer of 1942 he was placed in charge of the accounting department section responsible for the recording of production, materials used and inventories at the Gary Works of plaintiff's Carnegie-Illinois subsidiary. During 1943, he was in charge of recording production and consumption for monthly statements at Gary. In October 1943, he was transferred to Pittsburgh, where he was concerned with "controls and planning and procedures in all of the Carnegie-Illinois plants." (425-427)

 From the summer of 1944 to the spring of 1946, Smith served in the Navy. (427, 511) Upon his return from military duty, he worked in the cost planning bureau of the accounting department at Carnegie-Illinois headquarters in Pittsburgh. In February or March of 1947, he was assigned to the statistics division of the same department, where he worked through 1958. (511-512)

 Smith testified that reports on losses caused by strikes and work stoppages were prepared in the Carnegie-Illinois organization "back to at least 1943," although he could not answer for the two-year period during 1944-1946 when he was in the Navy. (443-444)

 Smith testified as to 1948 and 1949 that the Carnegie-Illinois accounting system "spelled out the requirement for all plants to report any work stoppages or any strike; the losses that occurred from it, man hours, production, and so forth." (445) It was part of his job to receive strike loss reports from each of the Carnegie-Illinois plants in 1948 and 1949. After receiving such reports, he "analyzed them to see that they were complete; that they appeared reasonable * * *." (446) If a figure "appeared to be out of line based on my knowledge of the operation, information that I had, then I would take it back to the plant and talk with them to assure myself that it was a reasonable figure" or have them "revise it and support it as to what we would show as the figure." (447) After the plant reports were compiled into a "total picture" for Carnegie-Illinois, a compilation was forwarded to King. (450)

 With primary reference to the years 1948 and 1949, Smith stated that each production plant of plaintiff's Carnegie-Illinois subsidiary submitted a report on the effects of a particular strike or work stoppage; that there was a prescribed format for such reports; and that a set of instructions and a copy of the prescribed format were sent to the plants when the reporting procedures were initiated. (531, 533, 534, 537-538, 541, 544, 545, 547, 575-576)

 When Smith was asked whether any instructions to the plants were available, he answered that he "might be able to find them." (576)

 At the start of the second week of the trial, the court addressed eighteen written questions to plaintiff regarding accounting procedures and the availability of source documents. (888, 985-999; Court's Ex. 1, 991) In response to questions A-1 and A-2, plaintiff's counsel remarked that U. S. Steel had recently located original records dealing with work stoppages and that plaintiff would produce such records. (987) In response to question B-8, counsel stated that he believed U. S. Steel could produce samples of written instructions sent to each plant regarding accounting procedures utilized to estimate production losses due to strikes. (996)

 King then testified that the figures on Exhibits 55 and 56 came from the chief accounting officers of plaintiff's subsidiaries. (1018-1019) The production loss estimates were used "by the commercial department in their customer relationships as to why certain orders weren't filled according to promises" and by management to explain to directors and stockholders effects on U. S. Steel's profits and loss situation caused by production losses. (1025-1026, 1030) The figures were also used during labor-management negotiations to remind a union that a prior work stoppage had caused certain production losses. (1033-1034)

 After argument by the parties, the court admitted Exhibits 55 and 56 (summaries of estimated production losses for plaintiff's manufacturing subsidiaries for March-April 1948 and July 1948 coal strikes) into evidence. Exhibits 94-97 (summaries relating to production loss estimates for the years 1946-1950) were also admitted. (1037-1066, 1085-1087)

 Subsequently, plaintiff's counsel proffered "instructions with respect to accumulating information about strikes and work stoppages." (1533) According to plaintiff's counsel, "[we] did not know whether our copies of them were complete and whether these were the actual instructions in force on the relevant dates, but * * * if they are not these are actual instructions and the instructions on the relevant dates were reasonably close to these, there would be only minor changes from what we actually have found." The particular instructions included in Exhibit 119 "do bear dates and some of them are instructions going out," but plaintiff was not able to ascertain "whether those instructions were still in effect at the relevant time or whether perhaps they had been modified by additions or deletions * * *." (1533-1534)

 Exhibit 119, admitted into evidence, contains certain letters dated March 5, 1942; August 24, 1943; August 28, 1943; December 13, 1943; and September 1, 1949. These letters, which do not present a complete picture of reporting procedures in effect at U. S. Steel production plants at particular times, may be described as follows:

 1. From Director of Industrial Relations to Industrial Relations Executives, dated March 5, 1942, with heading "Strikes or Work Stoppages." This letter is referred to by its writer as a supplement to previous letters dated February 27, 1941 and October 21, 1941. Attached to the present letter is a note from a Statistical Supervisor to the Chief Accounting Officers of plaintiff's subsidiaries, with heading "Strikes or Work Stoppages Form 'B'." The note reads:

 

"Supplementing our letter of October 21, 1941: Dues picketings, slowdowns and other types of union activity which cause a loss of output should be considered in the same sense as a strike for purpose of reporting statistics on Form 'B'. 'B' reports covering any such incidents since January 1, 1942 should be forwarded to this office promptly as possible. Procedures mentioned in our letter of October 21, 1941 are not changed. * * *"

 2. From Statistical Supervisor to General Supervisor of Statistics Division for plaintiff's Carnegie-Illinois subsidiary, dated August 24, 1943, with heading "Strikes or Work Stoppages." This letter reminds Carnegie-Illinois plants to submit "Form B" reports promptly, and authorizes advance telephone reports to overcome any delays either in sending of written reports by plants or in delivery of such reports to headquarters.

 3. From General Works Auditor of plaintiff's Carnegie-Illinois subsidiary to Works Auditors, dated August 28, 1943, with heading "Strikes, Work Stoppages, or Slow-Downs." It reads in relevant part:

 

"In order to satisfy a request from the American Iron and Steel Institute, [plaintiff has asked Carnegie-Illinois] to report all cases of strikes, work stoppages, or slow-downs as soon as they are started and to supply weekly statistical information concerning losses of man hours [and] production. * * * The notification to the Institute is made up of the following factors: 1. Name of plant[,] 2. Division or unit affected (complete or partial) [,] 3. Normal output of such division or unit per 8-hour shift in tons of products[,] 4. Cause of stoppage or strike (e. g., wages, working conditions, discipline of employees, jurisdictional disputes, etc.) * * * You should use the average production per 8-hour shift of the previous month for the normal output unless this figure is not representative, in which case, you should substitute a representative figure. * * * [In preparing subsequent reports after the early notification to the Institute at the start of a strike, work stoppage, or slow-down, record the] Estimated Loss of Production by Products. Enter here the estimated total production lost in both the direct and indirect divisions or units during the week covered by the report. * * * This procedure is to be made effective with the week ending September 3, 1943. * * *"

 Enclosed with these instructions is a general format for use by Carnegie-Illinois plants, which format includes four proposed headings: "Form 'B' Report Number," "Division or Unit," "Estimated Total Man Hours Lost," and "Estimated Loss of Production by Products."

 4. From Statistical Supervisor to General Supervisor of Statistics Division for plaintiff's Carnegie-Illinois subsidiary, dated December 13, 1943, with heading "Strikes or Work Stoppages." This letter informs Carnegie-Illinois plants that they may discontinue the practice of telephone or telegraph reports suggested in letter #2 above, but that "Form B" reports should still be submitted at the "earliest possible date."

 5. From plaintiff's Cost and Statistics Division to plaintiff's subsidiaries, dated September 1, 1949, with heading "Instructions For Reports * * * Strike or Work Stoppage -- Form 'B'." This letter contains instructions for preparation of "Form B" reports by the plants for "all strikes and work stoppages including dues, picketing, slow-downs, or other types of union activity which cause a loss of output." Under the subheading "Estimated Loss of Production," the letter advises:

 

"The loss in production caused by the strike or work stoppage is estimated and reported by product name and net tons. Where losses are measured in number of base boxes, cubic feet, gallons, or other units, the net-ton equivalent is also shown. The tonnage estimate is obtained by multiplying the average tonnage per operating hour by the number of operating hours lost because of the strike. * * * It should be noted that tonnage reported as 'Direct Loss' and tonnage reported as 'Indirect Loss' are to be nonadditive to avoid pyramiding of primary semi-finished, and finished goods, together under the common label of 'Total Steel Lost'."

 These letters represent the only examples presented by plaintiff at trial of any written instructions transmitted to U. S. Steel's production plants. From this incomplete evidence of instructions, the court cannot determine with certitude which instructions were in force at particular plants at particular times.

 Later in the trial, plaintiff's witness Raymond S. Ganem, a U. S. Steel employee since February, 1952 who now works in the accounting department, cost and statistics division (1445, 1460), testified that he had caused a search to be made of plaintiff's archives in response to the court's inquiries to plaintiff about its accounting procedures and the availability of source documents. (987, 1890)

 Ganem stated that the search resulted in the discovery of "Form B" reports for each of the years 1941 to 1950. However, plaintiff was unable to find all the reports for the year 1941 and "certain of the other years." Exhibits 132-136, 138, 140-143, consisting of a volume of the available "Form B" reports for each of the years 1941 to 1950, and Exhibits 137 and 139, contemporaneous lists of the "Form B" reports for the years 1944 and 1945, were admitted into evidence. (1890-1896, 2382) Exhibits 124 and 128 were also admitted. (2382)

 In a letter to the parties May 11, 1970, the court referred to Exhibits 132-143 and requested plaintiff to attempt preparation of an additional exhibit or exhibits setting forth summaries of estimated production losses for certain years, based on the available "Form B" reports contained in Exhibits 132-143. In response, plaintiff proposed Exhibits 4-7. (See Court's Exhibit 5, May 11, 1970; Plaintiff's letter to the court, May 13, 1970)

 In a letter to the parties May 18, 1970, the court stated:

 

"A study of these proposed exhibits and Exhibits 132-143 reveals that production losses (due to strikes and work stoppages) were reported in various forms. Exhibits 132-143 are said to include each available report (or 'Form B') prepared by each plant of each manufacturing subsidiary as an estimate of production losses due to strikes or work stoppages during the years 1941 to 1950. The various Form B reports appear to record estimated production losses in at least four different contexts: (1) a production loss of ingots only; (2) a production loss of actual products only; (3) a production loss of ingots and actual products; (4) a production loss of ingots, together with product loss figures, which figures may or may not be intended as a projection of potential product losses which would be expected to result from the specified loss of ingots. * * * In order to analyze the approximate production losses due to strikes or work stoppages in a particular year or years in comparison with the approximate production losses due to strikes or work stoppages in another particular year or years, the court believes that a comparative standard as nearly uniform as possible is required for each of the years 1941 to 1950. Plaintiff has not attempted to propose a basis for evaluating the different types of reports and totals included in Exhibits 132-143 and mentioned above. Since, as plaintiff has stated, these exhibits constitute 'underlying documents,' the documents must be utilized as primary sources for determining reported production losses due to strikes and work stoppages in the years 1941 to 1950. * * * Plaintiff is asked to submit a proposed exhibit or exhibits attempting to set forth, on the basis of Exhibits 132-143, the estimated production losses due to strikes and work stoppages for each of the years 1941 to 1950 by a reconciliation and explanation of the varying types of Form B reports previously noted. * * * Plaintiff is asked to specify the extent to which the original Form B reports for each year are included in Exhibits 132-143. For example, plaintiff may propose to demonstrate that the total of the available Form B reports is comparable to figures in contemporaneous summaries or annual reports. * * * Insofar as it appears that certain Form B reports are not available, plaintiff may propose in detail which, if any, documents it wishes the court to consider as a means of filling in gaps. * * *" (Court's Exhibit 6, May 18, 1970)

 In response, plaintiff proposed Exhibits 8-10 and told the court that these exhibits included:

 

"* * * a reconciliation and explanation of the Form B reports for the years 1944 and 1945, for which years there were available Exhibits 137 and 139, as well as 138 and 140, which enabled the explanation to be made. Plaintiff has attempted to make exhibits of a similar nature for other years. These attempts, however, are based in part on conjecture. * * * To the best of plaintiff's knowledge, the files of Form B reports, * * * together with other documents marked in evidence, constitute all of the presently available records concerning work stoppages of United States Steel Corporation and its subsidiaries for the years 1941 through 1950, with the exception of the fact that there are references to work stoppages and the resulting tonnage losses in the Comptroller's letters * * *, the Annual Reports * * *, and similar conclusory reports which have been excluded from evidence. So far as plaintiff has been able to determine by reconciliation, the Form B Reports are substantially complete for each of the years, with the exception of 1941, 1946 and 1948. With respect to the year 1941, only a portion of the Form B Reports has ever been found. The 1946 Form B Reports add up to 500,000 tons less than the total reported on Exhibit 128 for that year. This difference centers principally on the losses reported for the 1946 steel strike. Apparently later reports of that strike are missing from this set of copies. * * *" (Plaintiff's first letter to the court, May 21, 1970)

 In a later letter, plaintiff referred to the letter above and stated that "Form B" reports for certain subsidiaries were not available for the years 1944 and 1945. (Plaintiff's second letter to the court, May 21, 1970)

 On May 22, 1970, the record was reopened for argument and, at plaintiff's request, for additional testimony by its witness Ganem. I discussed with the parties an excerpt from one of plaintiff's post-trial memoranda, to wit:

 

"It does not now seem to counsel for plaintiff that there is need for additional evidence, but should there be any points on which the Court foresees a possible failure of proof for lack of evidence, as opposed to a decision on the evidence offered, plaintiff's counsel request the unusual courtesy of having any such areas revealed by the Court because counsel do not want their reluctance unnecessarily to over-burden the record to redound against the substantive rights of their client." (Plaintiff's Memorandum of May 11, 1970, p. 2 [in Response to the Court's letter of May 6, 1970])

 

[THE COURT:] "The time for that, I think, has passed. We have endeavored here to ascertain clarifications, but each side, both plaintiff and defendant, will have to weigh the evidence which it has submitted and we must determine the issues on the basis of the actual submissions which have been made." (3597)

 Plaintiff was asked if it wished to submit any documents as a means of filling in gaps resulting from the unavailability of certain "Form B" reports (the source records, prepared by U. S. Steel production plants, which contain estimates of production losses due to particular strikes or work stoppages).

 Plaintiff's counsel, apparently alluding to conclusory documents such as annual reports, stated that certain documents of this nature had not been admitted into evidence. The court then reiterated that plaintiff had the opportunity to submit any papers as a proposed means of filling in gaps. (3598-3600) By letter to the court, plaintiff then reported that "it has again reviewed its files at length and has no additional documentary materials which it can submit in this connection." (Plaintiff's letter to the court, May 26, 1970)

 During the course of Ganem's testimony on May 22, 1970, Exhibits 4-10 were admitted into evidence. *fn7" Exhibits 4 and 5 are attempts at summarizing estimated production losses due to strikes and work stoppages in terms of "ingots" and "total iron and steel" for manufacturing subsidiaries of U. S. Steel in the years 1941 through 1945. Exhibits 6 and 7 are, for the most part, attempts at summarizing the figures contained on the available "Form B" reports for 1943 and 1945. Exhibit 8 contains certain production statistics for the years 1941 to 1950. Exhibits 9 and 10 represent attempts at reconciliation of the estimated production loss figures included in varying contexts on the "Form B" reports available for the years 1944 and 1945.

 After hearing the testimony of the parties and examining the pleadings, the exhibits and the proposed findings of fact and conclusions of law, this court makes the following findings of fact regarding the issues raised by plaintiff's contentions that it is entitled to application of § 442 for the years 1948 and 1949:

 FINDINGS OF FACT

 1. The court has jurisdiction of this action pursuant to 28 U.S.C. § 1346(a) (1).

 2. Plaintiff United States Steel Corporation is a corporation organized under the laws of Delaware in September 1965 as "U. S. Steel Company," and is the successor by merger on January 1, 1966 to United States Steel Corporation, a corporation organized under the laws of New Jersey. (Stipulation, 171)

 3. On November 15, 1951, U. S. Steel, for itself and its subsidiaries, timely filed a consolidated federal income and excess profits tax return for the calendar year 1950. The tax due, as shown on the return, was timely paid in four installments during 1951. Thereafter, as a result of audits by the Internal Revenue Service, additional tax for 1950 was assessed and paid, together with interest thereon, and adjustments were made in the 1950 tax due to interim LIFO allowances. (Stipulation, 171)

 4. By successive agreements between the taxpayer and the Internal Revenue Service, the time for assessment against plaintiff of additional federal income and excess profits tax for 1950 was extended to June 30, 1966. Additional payments of tax and assessed interest were completed on or about June 22, 1965. (Stipulation, 171-172; Pretrial Order No. 1, Ex. A; Court's Ex. 2)

 5. On June 29, 1965, U. S. Steel filed a timely claim for refund of federal income and excess profits tax paid for 1950, and a refund of assessed interest paid on assessments of additional income and excess profits tax for 1950. (Stipulation, 172; Pretrial Order No. 1, Ex. B)

 6. On August 4, 1965, the Internal Revenue Service forwarded to U. S. Steel by certified mail a notice of rejection of plaintiff's refund claim. (Stipulation, 172)

 7. U. S. Steel and its subsidiaries have been engaged principally in the integrated business of making and selling iron and steel products since 1901. (Stipulation, June 10, 1970)

 8. The steel-making process generally consists of several production steps. The principal raw materials used in the manufacture of steel are coal, iron ore and limestone, each of which is mined at U. S. Steel's own mines. After coal is mined, it is charged into coke ovens to produce coke. Coke, iron ore and limestone are then charged into a blast furnace to produce iron (or hot metal). *fn8" Iron, with the principal addition of scrap, is then charged into the open-hearth furnace (or other facilities) to produce ingots, *fn9" the first solid form of steel. Ingots are then processed further into semi-finished products (slabs, blooms and billets), which may be shipped to customers or processed further into finished products (plate, sheet and strip; structural steel and rails; and rods, bars, seamless pipes and tubes) for shipment to customers. (See Ex. 24; 400-404, 617-618) 9. During the years 1933-1950, the major subsidiaries of U. S. Steel (engaged in the production and manufacture of coal, coke, iron, ingots, semi-finished products and finished products) were as indicated in the following table: MAJOR PRODUCTION SUBSIDIARIES OF U. S. STEEL: 1933-1950 Subsidiary(and Semi-finished Finished years) Coal Coke Iron Ingots Products Products H. C. Frick Coke (1933-1950) X X X X X National Mining (1933-1943; absorbed by H. C. Frick 1/15/43) Sharon Coal & Limestone (1933-1940; absorbed by National Mining 12/31/40) U. S. Coal & Coke (1933-1950) X X X X X U. S. Fuel (1933-1940; absorbed by U. S. Coal & Coke 12/31/40) X Carnegie-Illinois (1933-1950) X X X X X MAJOR PRODUCTION SUBSIDIARIES OF U. S. STEEL: 1933-1950 Subsidiary Semi- Finished Fini shed (and years) Coal Coke Iron Ingots Products Products American Sheet & Tin Plate (1933-1936; merged with Carnegie- llinois 6/1/36) X X X American Steel & Wire (1933-1950) X X X X X Cyclone Fence (1933-1940; dissolved 12/23/40) X Columbia Steel (1933-1946) X X X X X X (1947-1950; coal, coke and iron production facilities sold to Geneva Steel in October, 1946) X X X National Tube (1933-1950) X X X X X Tubular Alloy Steel (1941-44; assets transferred to National Tube 9/26/44) X Tennessee Coal & Iron (1933-1950) X X X X X X Geneva Steel (1946-1950; Government- owned production facilities at Geneva, Utah purchased by U. S. Steel 6/19/46) X X X X X X American Bridge (1933-1950) X Canadian Bridge (1933-1937; sold as of 9/1/37) X Oilwell Supply (1933-1950) X U. S. Steel Supply (1933-1950; known before 1942 as Scully Steel Products) X U. S. Steel Products (1939- 1950; known before 9/23/43 as Boyle Mfg.) X Federal Shipbuild- ing & Dry Dock Shipbuilding & Dry Dock (1933- 1948; yard transferred to U. S. Navy 12/31/48) X Virginia Bridge (1936-1950) X Gerrard Steel Strapping (1942- 1950) X Consolidated Western (1948- 1950; acquired 8/31/48) X (Stipulation, June 9, 1970; Court's Ex. 7)

  10. During the years 1933 through 1939, U. S. Steel's production facilities were affected by "some strikes and other labor difficulties," although plaintiff apparently did not maintain statistical records in those years indicating the approximate extent to which such occurrences may have interrupted the manufacture of iron and steel products by plaintiff's subsidiaries. (Exs. 207, 208; 2732)

  11. During the year 1941, U. S. Steel began to instruct administrative officials at the production plants of its subsidiaries to prepare reports estimating manhour losses and production losses due to any strikes or work stoppages. These papers, known as "Form B" reports, were transmitted by the subsidiaries to central management. The court cannot determine from plaintiff's evidence exactly when each production plant of each subsidiary began to prepare and submit "Form B" reports for strikes or work stoppages, although it appears that almost all plants of the major subsidiaries were submitting the reports, when appropriate, by 1942 or 1943. (Ex. 119; 1533-1534; Exs. 141, 142, 143; 444, 575)

  12. The only relevant years prior to 1948 for which plaintiff has presented any statistical evidence regarding strike losses are 1941, 1942, 1943, 1944 and 1945. (See Exs. 138, 140-143)

  Since plaintiff started in 1941 to record estimates of production losses due to strikes, the court believes that a determination of whether the 1948 strikes were "unusual" within the meaning of § 442 should be based on a comparison of (a) alleged impact of the 1948 strikes on production and net shipments of iron and steel products; and (b) a reasonable approximation of the impact of strikes in 1941, 1942, 1943, 1944 and 1945 on production and net shipments of iron and steel products.

  13. The appropriate loss indicator "for the purposes of this action," by agreement of the parties, is net shipments. (Plaintiff's first letter to the court, May 21, 1970; 3138-3139, 3625-3626) In the steel-making industry, production and total shipments are generally correlative. (3006, 3011, 3122, 3123, 3142) The court finds that a loss of production would have been comparable generally to a loss of total shipments.

  U. S. Steel has been engaged principally in the "integrated business of making and selling iron and steel products since 1901." (Finding of Fact #7) (Emphasis added) For the most part, however, plaintiff has referred during the trial to production and shipments of steel products, with only occasional mention of possible shipments of iron products. See Ex. 16 ("steel products" -- shipments); Ex. 8 -- May 22, 1970, p. 2 ("Steel Producers Shipments of Steel Products" -- 1941-1950)

  Although iron is charged into an open-hearth furnace (or other facility) with scrap to produce ingots (Finding of Fact #8), one witness, discussing certain production facilities of a U. S. Steel subsidiary in the year 1950, seemed to state that hot metal (iron) produced at those facilities was "sold as hot metal and does not go into the production of ingots at United States Steel Corporation." (1908-1909) It thus appears that iron or hot metal is processed further into ingots and then into steel products, although to some unspecified extent iron or hot metal might be processed and sold as iron product rather than being processed further into ingots and then sold as steel product.

  I shall proceed on the assumption that most of the iron or hot metal (estimated to have been lost due to strikes in the years 1941-1945) would have been processed further into ingots and then into steel products. *fn10" Specified production losses of iron or hot metal will therefore be excluded from further consideration. To the extent that production loss estimates can be itemized only as a combined total of iron, ingots and steel products, the court will determine the range of possibilities regarding production losses of steel products. In other words, a combined total might conceivably represent all iron losses, at one extreme, or all steel product losses, at the other.

  In an effort to obtain a reasonable approximation of potential strike losses in terms of net shipments of steel products, the court will analyze the evidence submitted for the relevant years (i. e., 1941-1945, 1948) and apply known statistical relationships for those years indicating (a) the average yield of net shipments of steel products from ingot production, and (b) the average yield of net shipments of steel products from total shipments of steel products.

  Plaintiff's allegations of 1948 losses in production and shipments of steel products due to two 1948 strikes by the United Mine Workers *fn11" will be discussed presently. The court will then analyze the evidence presented for the years 1941-1945 in order to determine whether the strikes in 1948 were "unusual" within the meaning of § 442 (a) by reason of their alleged impact on production and net shipments of steel products.

  STRIKES DURING 1948

  14. On March 15, 1948, the United Mine Workers commenced a strike which shut down plaintiff's coal-producing facilities. The strike terminated on or about April 22, 1948. About July 5, 1948, the United Mine Workers commenced a strike which again shut down plaintiff's coal-producing facilities. This strike terminated on or about July 14, 1948. (Stipulation, 176)

  -

  As a result of these strikes, plaintiff alleges that it suffered losses in production of coal, coke, iron, ingots and "equivalent finished products." The allegation of lost production of ingots and "equivalent finished products" is based on the claim that the strikes not only shut down plaintiff's coal-producing facilities but also interrupted production of coke at coke ovens, iron at blast furnaces, and most importantly, ingots (the first solid form of steel) and steel products at U. S. Steel's steel-making facilities. (See Finding of Fact #8 for a general summary of production steps in the steel-making process)

  15. U. S. Steel did not submit a summary based directly on the available "Form B" reports for the year 1948 contained in Exhibit 134.

  -

  Instead of relying primarily on figures contained in available "Form B" reports for 1948, U. S. Steel relies on figures set forth in Exhibit 55 ("Production's Losses Resulting from Coal Miners' Work Stoppage Starting March 15, 1948 * * * final data as submitted by the companies * * *," summary dated May 21, 1948) and Exhibit 56 ("Production Losses Resulting from Coal Miners' Work Stoppage Starting July 6, 1948 * * * the production losses in net tons * * *," summary dated July 22, 1948). According to plaintiff's witness King, the figures in these exhibits came from the chief accounting officers of plaintiff's subsidiaries. (1018-1019) However, plaintiff has failed to produce all of the particular chief accounting officers' reports which supposedly were the source of the figures placed in Exhibits 55 and 56. Since plaintiff has been unable to provide the source documents from subsidiaries, the court has considered U. S. Steel's allegations based on certain figures contained in Exhibits 55 and 56, as follows: PLAINTIFF'S ALLEGED PRODUCTION LOSSES DUE TO THE TWO 1948 STRIKES: EXHIBITS 55 AND 56 The March-April Strike "Equivalent Finished Subsidiary Ingots Prod ucts" American Steel & Wire 1,882 1,328 Carnegie-Illinois 251,141 183,333 n( 12) Columbia Steel 1,639 3,828 Geneva Steel 126,390 85,185 National Tube 21,293 14,013 Tennessee Coal & Iron 100,641 70,448 Totals for March-April Strike 502,986 358,135 (Exhibit 55) *fn12" * * * The July Strike Carnegie-Illinois 65,977 48,163 National Tube 10,893 7,047 Totals for July Strike 76,870 55,210 (Exhibit 56) * * * Totals for both strikes 579,856 413,345

  16. Plaintiff has failed to provide the actual instructions which might have been utilized in 1948 by employees at individual plants or by the chief accounting officers of the subsidiaries as the basis for preparation of production loss reports. Therefore the court cannot determine with certainty whether the "equivalent finished products" figure was meant to signify a loss in production, total shipments or net shipments.

  -

  King stated that "as I understand equivalent finished product, those were calculated [on Exhibits 55 and 56] by taking the normal ratio of finished products to ingots." He added that the figures were supplied by the subsidiaries. (1195, 1233) Apparently, the chief accounting officers of the subsidiaries reported the estimated impact of the two 1948 strikes by considering specific production losses only in terms of ingots and then projecting the ingot loss figures into losses of steel products which might have been expected to result from the loss of ingot production. Although the headings of both Exhibits 55 and 56 refer to losses in production, the court will assume that the 413,345 ton figure was intended by plaintiff to be an alleged estimate of losses of net shipments of steel products. *fn13" In view of the court's determination that the 1948 strikes were not "unusual" even if the 413,345 ton figure alleged by plaintiff is assumed to be correct, it is unnecessary to consider further defendant's arguments that the 413,345 ton figure is excessive. (See Findings of Fact #43-#47)

  17. For the year 1948 the demand for steel was high, and plaintiff could have sold all the steel which it could have shipped. U. S. Steel's net shipments for the year were 21,106,747 tons of steel products. (Stipulation, 202-203; Ex. 8 -- May 22, 1970, p. 1)

  STRIKES DURING 1941, 1942, 1943, 1944 & 1945

  18. The court finds that estimates of production losses due to strikes in each of the years 1941 to 1945 are included in the record from the following sources:

  (a) Available "Form B" reports for each of the years (Exs. 138, 140-143); Production loss figure totals apparently include losses of iron, ingots and steel products. Total losses summarized on Exhibit 5 -- May 22, 1970, column 3; Exhibit 6 -- May 22, 1970, for the year 1943; Exhibits 7, 10 -- May 22, 1970, for the year 1945; Exhibit 9 -- May 22, 1970, for the year 1944.

  (b) Contemponaneous summary sheets listing the "Form B" reports submitted for the years 1944 and 1945 (Exs. 137, 139); On Exhibit 137, the list of production losses for each plant for 1945 does not include totals for year, but the figures are totaled and reported on Exhibit 124, p. 6, column "(C)"; on Exhibit 139, the list of production losses in "steel" for 1944 includes totals for year, and the same total is reported on Exhibit 124, p. 7, column "(C)."

  (c) Summaries of "estimated tonnage lost" in terms of "steel" due to "strikes or slowdowns causing loss of production" for the years 1942-1945. (Ex. 128, p. 2 -- dated March 5, 1947, U. S. Steel Cost and Statistics Division)

  (d) Excerpts from U. S. Steel's annual reports for the years 1941, 1943, 1945; read into the record during cross-examination of plaintiff's witness Roger M. Blough. (121, 125, 128) The figures for the years 1941-1945 are reported in terms of "steel production" or "loss of steel tonnage." 19. The estimates of lost production tonnage due to strikes as reported from the above sources (a), (b), (c) and (d) in Finding of Fact #18 are listed herewith for the respective years: ESTIMATED PRODUCTION LOSSES DUE TO STRIKES, REPORTED BY U. S. STEEL FOR THE YEARS 1941-1945 (Source: Finding of Fact #18 (a), (b), (c) & (d)) Source (a) -- combined total of iron, ingots and Year steel Source (b) Source (c) Source (d) -- products --"steel" --"steel" " steel tonnage" 1941 88,257 -- -- "about" (incomplete; Ex. - - 300,000 (121) 5: May 22, 1970, col. 3; Ex. 143) 1942 43,112 (Ex. 5: May 22, 1970, col. 3; Ex. 142) - 52,715 53,000 (125) 1943 343,957 (Ex. 5: May 22, 1970, col. 3; Ex. 141) - 317,998 318,000 (125) 1944 530,642 (incom- plete; Ex. 9: May 22, 1970, p. 3; 3629-3630; 871,391 871,391 871,000 (128) Ex. 140) (Ex. 139) 1945 1,859,978 (Ex. 7: May 22, 1970, p. 1) or 1,860,034 (Ex. 10: May 22, 1970, p. 2; 3630-3632; Ex. 138) 1,868,522 1,868,522 1,868,000 (128)

  20. A review of the available "Form B" reports for 1943-1945, plaintiff's detailed summaries of the "Form B" figures for 1943 and 1945, and plaintiff's general summary of the "Form B" figures for 1944 reveals that the totals of production loss estimates for 1943, 1944 and 1945 included losses for iron, ingots and specified steel products. (For the year 1943, see Ex. 141; Ex. 6, May 22, 1970, pp. 1-13. For the year 1944, see Ex. 140; Ex. 9, May 22, 1970. For the year 1945, see Ex. 138; Ex. 7, May 22, 1970, pp. 1-10; Ex. 10, May 22, 1970.)

  21. U. S. Steel did not submit exhibits summarizing or explaining the available "Form B" reports for the years 1941 and 1942. Referring to the summaries submitted for the years 1943-1945, plaintiff told the court that it had "attempted to make exhibits of a similar nature for other years [including 1941 and 1942]. These attempts, however, are based in part on conjecture." Plaintiff also noted that "only a portion of the Form B Reports has ever been found" for the year 1941. (Plaintiff's first letter to the court, May 21, 1970) 22. When the speciified production loss estimates for iron or hot metal are subtracted from the summarized production loss estimate totals in Finding of Fact #19, the following picture emerges: 1941 Production loss estimate totals . . . approximately 300,000 tons Apparently, total includes iron or hot metal, ingots and specified steel products; "Form B" reports incomplete (Finding of Fact #19: compare columns (a) and (d)); no detailed summary of available "Form B" reports provided by plaintiff; plaintiff only notes that 88,257 tons of estimated production losses indicated on the available "Form B" reports included 18,715 tons of ingots. (Exs. 4, 5, May 22, 1970) 1942 Production loss estimate totals . . . approximately 53,000 tons Apparently, total includes iron or hot metal, ingots and specified steel products; "Form B" reports substantially complete (Finding of Fact #19: compare columns (a) and (c), (d)); no detailed summary of available "Form B" reports provided by plaintiff; plaintiff only notes that 43,112 tons of estimate production losses indicated on the available "Form B" reports included 9,441 tons of ingots. (Exs. 4, 5, May 22, 1970) 1943 Production loss estimate totals 343,957 tons Less specified production loss estimate for hot metal (Ex. 6, May 22, 1970, p. 1) 19,036 Production loss estimate total for ingots (approx. 48,000) and steel products (approx. 277,000) (Ex. 6, May 22, 1970, p. 1) 324,921 tons "Form B" reports apparently complete (Finding of Fact #19: compare columns (a) and (c), (d)); detailed summary of available "Form B" reports provided by plaintiff. (Ex. 6, May 22, 1970, pp. 1, 2-13) 1944 Production loss estimate totals 871,391 tons Less estimated losses on four "Form B" reports for "ore loss," "crushed slag loss," "coke loss," "slag loss" (Ex. 9, May 22, 1970) 105,603 Less specified production loss estimate for hot metal (Ex. 9, May 22, 1970) 117,793 223,396 Production loss estimate total for ingots (at least 118,721 tons), steel products (at least 294,128 tons) and combined total of iron, ingots and steel products (approx. 235,000 tons) (Ex. 9, May 22, 1970, findings of Fact #19) 647,995 tons "Form B" reports incomplete (Finding of Fact #19: compare columns (a) and (b), (c), (d)); general summary of available "Form B" reports provided by plaintiff. (Ex. 9, May 22, 1970) 1945 Production loss estimate totals approx. 1,860,000 tons Less specified production loss estimate for hot metal (Ex. 7, May 22, 1970, p. 1 (396,658); Ex. 10, May 22, 1970 (398,633)) approx. 397,500 Production loss estimate total for ingots (approx. 478,500) and steel products (approx. 984,000) (Exs. 7, 10, May 22, 1970) 1,462,500 tons "Form B" reports substantially complete (Finding of Fact #19: compare columns (a) and (b), (c), (d)); detailed summary of available "Form B" reports provided by plaintiff, together with detail of losses from April, 1945 Carnegie- Illinois strike in an administrative report. (Plaintiff's second letter to the court, May 21, 1970; Exs. 7, 10, May 22, 1970) 23. The detail in Finding of Fact #22 relating to production loss figures involving ingots and steel products for the years 1941-1945 may be further summarized accordingly: ESTIMATED PRODUCTION LOSSES DUE TO STRIKES, 1941-1945 (broken down into three types of categories: (1) specified ingot losses; (2) specified steel product losses; and (3) combined totals which apparently include iron, ignots and steel products) 1941 Specified ingot losses -- production 18,715 tons Combined total of production losses of iron, ingots and steel products -- no breakdown by loss category approx. 281,000 1942 Specified ingot losses -- production 9,441 Combined total of production losses of iron, ingots and steel products -- no breakdown by loss category approx. 43,500 1943 Specified ingot losses -- production approx. 48,000 Specified steel product losses -- production approx. 277,000 1944 Specified ingot losses -- production 118,721 Specified steel product losses -- production 294,128 Combined total of production losses of iron, ingots and steel products -- no breakdown by loss category approx. 235,000 1945 Specified ingot losses -- production approx. 478,500 Specified steel product losses -- production approx. 984,000

  Despite the fact that the production loss estimates cited in Finding of Fact #19, columns (c) and (d), were reported yearly to U. S. Steel stockholders and summarized in a management report prepared by U. S. Steel's Cost and Statistics Division (dated March 5, 1947), plaintiff suggests that the figures should not be accepted at face value because of possible "duplication" or "pyramiding." (1919, 1922, 1924; 3610-3611, 3614-3615, 3632-3646) Although some of plaintiff's references are indefinite and ambiguous on this score, the court has scrutinized the record presented in order to evaluate the possibility of overlapping figures and minimize the effect of any such overlapping. (See Finding of Fact #13 and subsequent analysis; Finding of Facts #18-#23; Finding of Fact #24 and subsequent analysis; Finding of Fact #25 and subsequent analysis; Findings of Fact #26-#39)

  The court next turns its attention to the reported estimates of production losses of ingots and steel products.

  24. The available "Form B" reports for the years 1941-1945 record estimates of production losses (of ingots and steel products) in varying contexts, including (1) a production loss of ingots only; (2) a production loss of steel products only; and (3) a production loss of ingots and steel products. (See Exs. 138, 140-143)

  -

  With apparent reference to the third type mentioned above, plaintiff seems to assert that in some instances a production plant may have recorded an estimate of actual ingot production lost and then recorded a projection of potential steel product losses which would be expected to result from the specified loss of ingots. An example will illustrate:

  

Suppose that production of 10,000 tons of ingots was lost due to a strike. The 10,000 tons of ingots might have been processed further into 8,500 tons of semi-finished products. The 8,500 tons of semi-finished products might have been sold to a customer or processed further into 7,000 tons of finished products, which might then be sold to a customer.

  U. S. Steel theorizes that somehow a production plant or production plants may have reported that the production loss due to a strike as illustrated above was not just 10,000 tons of ingots but a total of 25,500 tons (i. e., 10,000 tons of ingots plus 8,500 tons of semi-finished products plus 7,000 tons of finished products). In support of its theory, U. S. Steel points to three "Form B" reports by its subsidiary Tennessee Coal & Iron during the year 1945. (See 3628-3646; Ex. 138) *fn14" One of the "Form B" reports, undated, is headed "Summary Showing Total Effect of Work Stoppage at Coal Mines" for certain plants during a particular period. This "Form B" report is apparently a summary of the production loss estimates contained on the two other reports, which were submitted by Ensley Works and Fairfield Steel Works of Tennessee Coal & Iron. After looking at the figures on the summary "Form B" report, plaintiff's witness Ganem stated that he could "almost" detect a statistical relationship (between the reported losses of ingots and steel products) to indicate the possible reporting of overlapping figures. At another point, Ganem commented that "there are a great deal of problems in trying to [tie] the [Form B reports] together at this date unless you were intimately familiar with the operations as they existed at that time * * *." (3629)

  25. Aside from Ganem, who did not become a U. S. Steel employee until 1952 (1460, 3413), plaintiff produced no witness to attempt to reconcile the different categories of production losses.

  A letter from U. S. Steel's Cost and Statistics Division to plaintiff's subsidiaries, dated September 1, 1949, refers to estimates of production losses due to strikes and states that such estimates "are to be nonadditive to avoid pyramiding of primary, semifinished, and finished goods, together under the common label 'Total Steel lost'." (See Ex. 119, letter #5, discussed in "The Nature of Plaintiff's Evidence Relating To Estimates of Production Losses Due to Strikes," supra)

  In an analysis after Finding of Fact #13, the court decided to disregard estimated production losses of iron or hot metal because most of this material apparently is processed further into steel ingots and then steel products (rather than being sold to customers as iron or hot metal). With reference to estimated production losses of ingots and specified steel products, the court believes that plaintiff's evidence in support of its theory of duplication in reporting is at best sketchy. Nevertheless, the court has undertaken an analysis of the available "Form B" reports for the years 1943 and 1945, *fn15" which reports have been broken down in terms of types of production loss estimates, such as (1) ingots only, (2) specified steel products only, and (3) ingots as well as specified steel products. As to those "Form B" reports which indicate a loss of ingots only or specified steel products only, it is reasonable in most instances to assume an absence of duplication of figures. As to those "Form B" reports which indicate a loss of ingots as well as a loss of specified steel products, it is quite possible that the losses were distinct. However, if a study of any such "Form B" report suggests even a fair possibility of any duplication or pyramiding, the court will disregard figures so as to achieve a reasonable approximation for 1943 and 1945 of the production loss of ingots and specified steel products. *fn16"

  26. Exhibit 6, May 22, 1970, consists of a thirteen-page listing of the contents of the available "Form B" reports for the year 1943. The U. S. Steel manufacturing subsidiaries for which "Form B" reports are included are National Tube (at least 48 reports), Columbia Steel (at least 23 reports), American Steel & Wire (at least 61 reports), Carnegie-Illinois (at least 222 reports), and Tennessee Coal & Iron (at least 35 reports).

  27. In reviewing the National Tube "Form B" reports for 1943, the court found the possibility of some relationship between three reports, each of which appears to refer to a strike by crane operators at National Works in December, 1943. The "Final Report," dated January 1, 1943 (although the intended date was probably January 1, 1944), seems to contain a summary of the two other reports. Although the existence of some relationship between figures on the "Final Report" is no more than a possibility, the figures for production losses of ingots (10,000 tons) and blooms (8,236 tons) will be disregarded, while the figures for production losses of rounds and pipe (finished products) will be included. The court finds that the resulting figure for National Tube for 1943 is estimated production loss of 13,414 tons of steel products due to strikes. (Ex. 141, "Form B" reports for National Tube; Ex. 6, May 22, 1970, pp. 2-3)

  28. In reviewing the Columbia Steel "Form B" reports for 1943, the court did not find figures which might appear to be related. The court finds that the figures for Columbia Steel for 1943 are estimated production losses of 1,772 tons of steel products and 1,158 tons of ingots due to strikes. (Ex. 141, "Form B" reports for Columbia Steel; Ex. 6, May 22, 1970, p. 4)

  29. In reviewing the American Steel & Wire "Form B" reports for 1943, the court noticed the possibility of some overlapping of figures on a report from South Works dated November 16, 1943. Although a study of the detail does not convince me of any relationship, I have nevertheless disregarded the loss figures for ingots (1,450 tons) and billets (1,189 tons), while including the loss figures for rods, wire, spring and cable. The court finds that the resulting figures for American Steel & Wire for 1943 are estimated production losses of 79,810 tons of steel products and 3,100 tons of ingots due to strikes. (Ex. 141, "Form B" reports for American Steel & Wire; Ex. 6, May 22, 1970, pp. 5-6)

  30. In reviewing the Carnegie-Illinois "Form B" reports for 1943, the court found that at least 15 "Form B" reports for 1942 for the Carnegie-Illinois Gary Steel facilities were placed by mistake in Exhibit 141, which contains the available "Form B" reports for 1943. I have ignored these reports, and apparently U. S. Steel's summary of 1943 reports does not include figures for these misplaced 1942 reports.

  As to the possibility of relationship between production loss figures on the 1943 reports, I find only one report, dated November 18, 1943 for Irvin Works, which merits consideration. Since there is a possibility of duplication here on figures for losses of slabs (semifinished product) and then losses of plates and coils (finished product which may result from further processing of slab), I shall disregard the figure for slab (11,029 tons), while including the figures for plates and coils. (See, generally, Ex. 24) The court finds that the resulting figures for Carnegie-Illinois for 1943 are estimated production losses of 141,376 tons of steel products and 27,733 tons of ingots due to strikes. (Ex. 141, "Form B" reports for Carnegie-Illinois; Ex. 6, May 22, 1970, pp. 7-12)

  31. In reviewing the Tennessee Coal & Iron "Form B" reports for 1943, the court found no production loss estimate figures which suggest more than the remotest possibility of any duplication. Therefore, I find that the figures for 38. A recapitulation of the figures for 1943 and 1945 derived from the court's analysis in Findings of Fact #26-#37 is as follows: ADJUSTED PRODUCTION LOSS FIGURES FOR INGOTS AND STEEL PRODUCTS: 1943 and 1945 1943 Specified Ingot Specified Steel Losses -- Production Product Losses -- (tons) Production (tons) National Tube -0- 13,414 Columbia Steel 1,158 1,772 American Steel & Wire 3,100 79,810 Carnegie-Illinois 27,733 141,376 Tennes see Coal & Iron 4,640 20,014 Totals 36,631 256,386 1945 Specif ied Ingot Specified Steel Losses -- Product Losses -- Production(tons) Production (tons) National Tube -0- 24,134 Columbia Steel 133 507 American Steel & Wire -0- 27,871 Carnegie-Illinois 171,480 380,116 Tenness ee Coal & Iron -0- 357,124 Totals 171,613 789,752

  39. The court finds that the figures in Finding of Fact #38 are a reasonable approximation of production losses of ingots and steel products during the years 1943 and 1945, based on the contemporaneous estimates contained on the available "Form B" reports for those years. All of the more than six hundred individual "Form B" reports included in Exhibit 138 (for the year 1945) and Exhibit 141 (for the year 1943) were studied in my chambers, and loss figures were excluded from further consideration when even a fair possibility of some duplication or overlapping was presented.

  40. The production loss figures for the years 1941, 1942, 1944 (from Finding of Fact #23) and for the years 1943 and 1945 (from Finding of Fact #38) may be summarized as follows:

  PRODUCTION LOSSES DUE TO STRIKES: 1941-1945 *fn17" (broken broken down into three types of categories: (1) specified ingot losses; (2) specified steel product losses; and (3) combined totals which apparently include iron, ingots and steel products) 1941 Specified ingot losses -- ingot -- production 18,715 tons Combined total of production losses of iron, ingots and steel products -- no breakdown by loss category approx. 281,000 (Finding of Fact #23) 1942 Specified ingot losses -- production 9,441 Combined total of production losses of iron, ingots and steel products -- no breakdown by loss category approx. 43,500 (Finding of Fact #23) 1943 Specified ingot losses -- production 36,631 Specified steel product losses -- production 256,386 (Finding of Fact #38; Findings of Fact #23, #26, #27-#31) 1944 Specified ingot losses -- production 118,721 Specified steel product losses -- production 294,128 Combined total of production losses of iron, ingots and steel products -- no breakdown by loss category approx. 235,000 (Finding of Fact #23) 1945 Specified ingot losses -- production 171,613 Specified steel product losses -- production 789,752 (Finding of Fact #38; Findings of Fact #23, #32, #33-#37) 41. The average yield of net shipments of steel products from total shipments of steel products for the years 1941-1945 was as follows: AVERAGE YIELD: NET SHIPMENTS OF STEEL PRODUCTS FROM TOTAL SHIPMENTS OF STEEL PRODUCTS, 1941-1945 1941 91.6% 1942 88.9% 1943 86.6% 1944 89.1% 1945 89.8% (Ex. 8, May 22, 1970, p. 2; 3624, 3627)

  As stated, the parties agree that the appropriate loss indicator "for the purposes of this action" is net shipments. (Finding of Fact #13) In the steel-making industry, production and total shipments are generally correlative. The court has therefore determined that a loss of production of steel products would have been comparable generally to a potential loss of total shipments of steel products. (Finding of Fact #13) 42. The average yield of net shipments of steel products from ingot production for the years 1941-1945 was as indicated: AVERAGE YIELD: NET SHIPMENTS OF STEEL PRODUCTS FROM INGOT PRODUCTION, 1941-1945 1941 71.9% 1942 69.4% 1943 66.5% 1944 69.0% 1945 69.6% (Ex. 8, May 22, 1970, p. 1; 3626)

  Introduction to Finding of Fact #43

  Based on the specified production loss figures for ingots and steel products for the years 1941-1945 (Finding of Fact #40) and the additional figures representing combined totals for production losses of iron, ingots and steel products for the years 1941, 1942 and 1944 (Finding of Fact #40), the court has formulated potential loss figures in terms of net shipments of steel products from the loss figures stated in terms of production.

  (1) To the extent that specified ingot production loss figures could be derived in Findings of Fact #23, #38 and then #40, the specified ingot production loss figures for a given year will be converted into potential loss figures for net shipments of steel products. (Finding of Fact #42)

  (2) To the extent that specified production loss figures for steel products could be derived in Findings of Fact #23, #38 and then #40, the specified production loss figures for steel products for a given year will be converted into potential loss figures for net shipments of steel products. (Finding of Fact #41 and subsequent analysis)

  (3) To the extent that production loss figures could be categorized only in terms of a combined loss total including iron, ingots and steel products, the court will determine the range of possibility for production losses of steel products. In other words, the combined total (which has not been broken down by category) conceivably might indicate a production loss of all iron, at one extreme, or a production loss of all steel products, at the other. (See analysis after Finding of Fact #13) The minimum and maximum potential loss figures for net shipments of steel products will be set forth. (See (2) above)

  43. With consideration of the production loss figures in Finding of Fact #40 and the above explanatory material, the court presents a reasonable approximation of U. S. Steel's potential losses in net shipments of steel products due to strikes in the years 1941 to 1945:

  [SEE ILLUSTRATION IN ORIGINAL]

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  [SEE ILLUSTRATION IN ORIGINAL] 44. The potential loss figures in net shipments of steel products due to strikes in the years 1941 to 1945 are summarized herewith: REASONABLE APPROXIMATION OF POTENTIAL TONNAGE LOSS IN NET SHIPMENTS OF STEEL PRODUCTS DUE TO STRIKES: 1941-1945 *fn18" 1941 13,456 -270,852 (range) (Finding of Fact #43 -- (Min.) (Max.) for 1941) 1942 6,552 (Min.) -45,223 (Max.) (range) (Finding of Fact #43 -- for 1942) (Finding of Fact #43 1943 246,389 -- for 1943) 1944 343,985 (Min.) -553,370 (Max.) (range) (Finding of Fact #43 -- for 1944) 1945 828,639 (Finding of Fact #43 -- for 1945)

  After obtaining a reasonable approximation of production losses of ingots and steel products due to strikes in 1941-1945 (Finding of Fact #40) and projecting the production loss figures into potential loss figures for net shipments of steel products (Findings of Fact #41-#44), the court considers the demand for steel products in the years 1941 through 1945.

  45. The demand for steel in 1941 was strong throughout the year as evidenced by the fact that the steel industry's operating rate for the entire year was maintained above 90%, and average [averaged] 97.3% rated capacity. By the end of 1941, the demand for steel equaled that which prevailed during 1942, 1943 and 1944. For the years 1942, 1943 and 1944 the demand for steel was high, and plaintiff could have sold all the steel which it could have shipped. The high level of demand continued into the first quarter of 1945, after which the reduction in requirements for the armed forces caused cancellations of orders and decreases in production rates. This trend continued until the end of the war, after which the civilian demands again increased production in 1945, but not to the level that existed during the war. Plaintiff's overall operating rate for 1945 was 82%. U. S. Steel's net shipments in tons of steel products for the years 1941-1945 were 20,770,892 (for 1941), 20,803,693 (for 1942), 20,251,717 (for 1943), 21,221,622 (for 1944) and 18,393,980 (for 1945). (Stipulation, May 21, 1970; Ex. 8, May 22, 1970, p. 1; see also Ex. 216)

  46. In view of the high demand for steel products in 1942, 1943 and 1944 and the general correlation between production and shipments, the court finds by a fair preponderance of the credible evidence that almost all indicated production losses for those years (Finding of Fact #40) would have been converted into related losses for each year of net shipments of steel products. (Findings of Fact #43, #44) In view of the generally strong demand for steel products in 1941 and 1945 and the general correlation between production and shipments, the court finds by a fair preponderance of the credible evidence that the major part of the indicated production losses for those years (Finding of Fact #40) would have been converted into related losses for each year of net shipments of steel products (i. e., well over half of the potential tonnage losses set forth in Findings of Fact #43, #44 actually would have resulted).

  47. On the basis of the foregoing Findings of Fact and the record presented, the court concludes that plaintiff has failed to prove by a fair preponderance of the credible evidence that the two 1948 strikes were "unusual" events within the meaning of § 442 (a) (1).

  THE 1948 EXPLOSION

  48. On July 3, 1948, an explosion occurred in the "No. 1-4 & E Blast Furnace Blowing Engine House" at U. S. Steel's South Works in Chicago, Illinois. (Stipulation, 176-177)

  49. This explosion caused extensive damage to the building and its roof, the air mains and the blowing engines and valves servicing Blast Furnaces 1-4 & E. (Ex. 30)

  50. The explosion at South Works was an "unusual" event within the meaning of § 442 (a) (1). (Stipulation, Pretrial Order No. 2, p. 6)

  -

  Plaintiff alleges that, as a result of lost shipments and increased costs attributable to the 1948 explosion, its 1948 income before federal income taxes was reduced $2,767,000 below what it otherwise would have been. (Plaintiff's Amended Proposed Finding of Fact No. 11, received by the court May 12, 1970; Plaintiff's letter to the court, May 11, 1970, pp. 1-2; Amended Ex. 191-A, received by the court May 12, 1970; Plaintiff's letter to the court, May 18, 1970, p. 1; Ex. 191-B, received by the court May 18, 1970)

  51. U. S. Steel's 1948 income before federal income taxes was $300,471,410.17. (Stipulation, 1875)

  52. Assuming arguendo that plaintiff's $2,767,000 figure is appropriate, U. S. Steel's 1948 income before federal income taxes was reduced (as a result of the 1948 explosion) 0.91% below what such income otherwise would have been. The 1948 explosion is the only "unusual" occurrence within the meaning of § 442 which plaintiff has established for 1948.

  53. Plaintiff has failed to prove by a fair preponderance of the credible evidence that its normal production, output or operation was interrupted or diminished to a legally significant extent in 1948 as a result of the South Works explosion, the only "unusual" occurrence within the meaning of § 442 which U. S. Steel has established for 1948. Reg. 130 (1939 Code), § 40.442-2 (a) (2); Oxford Paper Company v. Commissioner of Internal Revenue, 302 F.2d 674 (2d Cir.1962) supra.

  54. Plaintiff has failed to prove by a fair preponderance of the credible evidence that it is entitled to application of § 442 for the year 1948.

  THE 1949 STRIKE

  55. On October 1, 1949, the United Steel Workers commenced a strike which shut down plaintiff's steel-making facilities. The strike terminated on or about November 11, 1949. (Stipulation, 177)

  56. The strike during October-November, 1949 was an "unusual" event within the meaning of § 442 (a) (1). (Stipulation, Pretrial Order No. 2, p. 6)

  57. U. S. Steel made no shipments of steel products during the strike period. (Ex. 16; 1539-1540, 1552)

  58. Plaintiff's billed shipments of steel products in 1949 were 18,212,102 tons (Ex. 16), while its net shipments of steel products in 1949 were 18,164,564 tons. (Ex. 8, May 22, 1970, p. 1) The court finds on the basis of these totals that the terms "billed shipments" and "net shipments," in the context of plaintiff's 1949 operations, may be treated as synonymous. (See, generally, 1663-1664) 59. During the year 1949, the actual monthly billed shipments by U. S. Steel subsidiaries were as indicated in the following table: ACTUAL MONTHLY BILLED SHIPMENTS BY U. S. STEEL SUBSIDIARIES FOR 1949 (TONS) Month Billed Shipments January 1,800,971 February 1,729,796 March 1,960,449 April 1,800,401 May 1,763,533 June 1,712,716 July 1,410,365 August 1,615,898 September 1,755,764 October 912,733 November December 1,749,476 Total: 1949 18,212,102 (Ex. 16)

  60. Demand for steel products was in excess of supply during the first quarter of 1949. A mild recession began to occur about April and continued through July. This recession bottomed out in July. Demand began to increase again in August and was good in September. (1550-1552, 3048; Ex. 216)

  61. The court finds by a fair preponderance of the credible evidence that, as a result of the strike by the United Steel Workers from October 1, 1949 to about November 11, 1949, U. S. Steel's net shipments of steel products for the year 1949 were at least 1,700,000 tons below what such shipments otherwise would have been. (1541-1542, 2761, 3009; Exs. 16, 121, 216) *fn19"

  62. For the year 1949, U. S. Steel's average income (before federal income taxes) for each ton of actual net shipments of steel products was at least $10.83. *fn20" (Stipulation with annexed schedule, June 26, 1970; Court's Ex. 9) The court finds that the 1949 average ($10.83) is a reasonable figure to use in computation, although monthly averages and averages for different products during 1949 may have varied.

  63. U. S. Steel's 1949 income before federal income taxes was reduced (as a result of the 1949 strike) at least $18,411,000 below what such income otherwise would have been.

  64. U. S. Steel's 1949 income before federal income taxes was $301,290,246.95. (Stipulation, 1875)

  65. Therefore, plaintiff's 1949 income before federal income taxes was reduced (as a result of the 1949 strike) at least 5.76% below what such income otherwise would have been.

  66. U. S. Steel has proved by a fair preponderance of the credible evidence that its normal production, output or operation was interrupted or diminished to a legally significant extent in 1949 as a result of the 1949 strike by the United Steel Workers, an "unusual" occurrence within the meaning of § 442. Reg. 130 (1939 Code), § 40.442-2 (a) (2); Oxford Paper Company v. Commissioner of Internal Revenue, supra.

  67. Plaintiff has proved by a fair preponderance of the credible evidence that it is entitled to application of § 442 (c) for the year 1949.

  II. PLAINTIFF'S CLAIM UNDER SECTION 433 (b) (9)

  Having determined that U. S. Steel is entitled to application of § 442 for the year 1949 but not for the year 1948, the court considers plaintiff's alternative claim under 26 U.S.C. Excess Profits Taxes § 433 (b) (9) for disallowance of certain deductions for expenses incurred in the year 1949. (Stipulation, May 26, 1970) Plaintiff characterizes the deductions in question as "strike expenses." for the reasons stated below, plaintiff has failed to establish that it is entitled to application of § 433 (b) (9) for the year 1949.

  RELEVANT STATUTE AND REGULATION

  26 U.S.C. Excess Profits Taxes § 433 (b) (9) reads in pertinent part:

  

"(b) Taxable years in base period. For the purposes of computing the average base period net income, the excess profits net income for any taxable year shall be the normal-tax net income * * * for such taxable year, increased * * * by the following adjustments * * *:

  

* * *

  

"(9) Judgments, intangible drilling and development costs, casualty losses, and other abnormal deductions. If, for any taxable year * * * within * * * the base period, any class of deductions for the taxable year exceeded 115 per centum of the average amount of deductions of such class for the four previous taxable years * * *, the deductions of such class shall * * * be disallowed in an amount equal to such excess. For the purposes of this paragraph, each of the following groups of deductions shall constitute a class of deductions:

  

"(A) Deductions attributable to claims, awards, judgments, and decrees against the taxpayer, and interest on the foregoing;

  

"(B) Deductions attributable to intangible drilling and development costs paid or incurred in or for the drilling of wells or the preparation of wells for the production of oil or gas, and for development costs in the case of mines; and

  

"(C) Deductions under section 23 (f) for losses arising from fires, storms, shipwreck, or other casualty, or from theft, or arising from the demolition, abandonment, or loss of useful value of property, not compensated for by insurance or otherwise. * * *

  

"The classification of deductions of any class not described in subparagraphs (A) to (C), inclusive, shall be subject to regulations prescribed by the Secretary."

  The applicable regulation (Reg. 130, § 40.433 (b)-3 (d) (2)) reads:

  

"(2) Deductions which do not fall within any of the classes specified in section 433 (b) (9) (A)-(C) may be grouped by the taxpayer, subject to approval by the Commissioner on the examination of the taxpayer's return, in such other classes as are reasonable in a business of the type which the taxpayer conducts and are applicable in the light of the taxpayer's business experience and accounting practice. Such a classification will be applicable to all other taxable years considered at any time in adjusting deductions under this section." (Emphasis added)

  After hearing the testimony of the parties and examining the pleadings, the exhibits and the proposed findings of fact and conclusions of law, this court makes the following findings of fact regarding plaintiff's contention that it is entitled to application of § 433 (b) (9) for the year 1949:

  FINDINGS OF FACT

  68. All expenses "in relation to strikes and work stoppages" in each of the years 1945 to 1949, inclusive, were claimed as deductions by U. S. Steel in its consolidated federal income tax returns for those years and upon audit were allowed by the Internal Revenue Service. In those returns, no deductions were specifically identified as "strike expenses." (Stipulation, June 24, 1970; Court's Ex. 8)

  69. U. S. Steel's claim for refund of federal income and excess profits tax paid for 1950 and refund of assessed interest paid on assessments of additional tax for 1950 included a statement alleging that plaintiff qualified for application of § 433 (b) (9) for the year 1949. Plaintiff's refund claim was rejected by the Internal Revenue Service. (See Findings of Fact #5, #6, supra)

  70. On January 21, 1946 the United Steel Workers commenced a strike which completely stopped all production and shipments at plaintiff's steel-making facilities. The strike terminated on or about February 21, 1946. (Stipulation, 177; Joint Proposed Finding of Fact No. 74, June 24, 1970)

  71. In a letter to the chief accounting officers of plaintiff's subsidiaries, dated February 22, 1946, George W. Rooney, U. S. Steel's Vice President-Comptroller, advised the chief accounting officers about "accounting considerations arising out of strike." Under the heading "Recommended Definition and Accounting Disposition of Strike Expense," Rooney stated that "[it] has been recommended that strike expense comprehend all ascertainable costs and expenses incurred (1) in preparing for the shutdown, (2) during the period of the strike, and (3) in preparing for the resumption of operations." (Ex. 122, pp. 5, 7)

  72. Exhibit 244, which includes a total expense figure of $30,375,768, contains figures for each U. S. Steel subsidiary with respect to expenses incurred during the period of the 1946 strike, together with some strike-related expenses incurred immediately before and after the strike. (Ex. 244; 3553-3554, 3578-3579; Joint Proposed Finding of Fact No. 75, June 24, 1970)

  73. During the years 1945, 1947 and 1948, *fn21" there were no strikes against U. S. Steel which completely stopped all production and shipments at plaintiff's steel-making facilities. (Stipulation, 3578-3579; Joint Proposed Finding of Fact No. 77, June 24, 1970)

  74. On October 1, 1949, the United Steel Workers commenced a strike which completely stopped all production and shipments at plaintiff's steel-making facilities. The strike terminated on or about November 11, 1949. (Findings of Fact #55, #57, supra; Joint Proposed Finding of Fact No. 72)

  75. In a telegram to the chief accounting officers of plaintiff's subsidiaries, dated October 3, 1949, Rowland B. Scott, U. S. Steel's general accountant, reported to the chief accounting officers that "it will be necessary to compile a statistical record of strike expense using Mr. Rooney's letter of Feb. 22, 1946 as pattern." (1721-1723, 1848; Ex. 122, pp. 2-4)

  76. Exhibit 122, p. 16, which includes a total expense figure of $52,975,809, contains figures for each U. S. Steel subsidiary with respect to expenses incurred during the period of the 1949 strike, together with some strike-related expenses incurred immediately before and after the strike. (Ex. 122, p. 16; Joint Proposed Finding of Fact No. 73, June 24, 1970)

  77. All except a relatively small part of the $52,975,809 in expenses set forth in Exhibit 122, p. 16, would have been incurred by plaintiff regardless of whether or not the October-November 1949 strike by the United Steel Workers had taken place. (Exs. 122, BK; 1770-1786, 1839-1848, 1859-1864, 1871-1872; Joint Proposed Finding of Fact No. 81, June 24, 1970)

  78. In connection with the 1946 and 1949 strikes mentioned above (Findings of Fact #70, #74), U. S. Steel, "for its own purposes," kept records of ascertainable costs and expenses incurred (1) in preparing for the shut-down, (2) during the period of the strike, and (3) in preparing for the resumption of operations. (Stipulation, June 24, 1970; Findings of Fact #71, #75; Ex. 244; Ex. 122, p. 16)

  79. The primary reason stated by plaintiff for recording the expense figures in Exhibit 122, p. 16, under the heading "* * * Analysis of Steel Strike Expense For The Period October 1, [1949] to November 11, 1949 Inclusive," was to show "the amount of dollars that it cost to run the company during the strike." (1871) *fn22"

  80. On the record presented, the court finds that all except a relatively small part of the alleged "strike expenses" reported by U. S. Steel in Exhibits 244 and 122, p. 16, would have been incurred by plaintiff whether or not strikes had taken place during the periods involved. Plaintiff has failed to specify which expenses were incurred only because of the strikes' occurrence, but it has acknowledged that all except a relatively small part of the expenses set forth on Exhibit 122, p. 16 would have been incurred whether or not the 1949 strike had taken place. (See Finding of Fact #77)

  81. U. S. Steel failed to provide records indicating whether it was required by contract or otherwise to pay any employees in 1946 or 1949 irrespective of availability to perform services during the strike periods. However, plaintiff's "1949 Strike Policy" statement included the following provisions:

  (a) Management salaried employees "shall be paid their regular base salaries so long as they stand ready and willing to work at management's direction."

  (b) Hourly rated management, confidential and technical employees not represented by the striking union "will be paid for not less than 40 hours per week at their base hourly rate, provided they remain ready and willing to work at management's direction."

  (c) Non-management salaried employees not included in the bargaining unit represented by the striking union "shall be paid their regular base salary so long as they stand ready and willing to work at management's direction." (Ex. BK, pp. 2, 3; Ex. 122, pp. 21, 23-25; 1861)

  82. During the period of the 1949 strike, U. S. Steel's district sales offices were open. (1741-1742) During strikes such as the ones in 1946 and 1949, salesmen continued to call on customers. (Ex. BK, p. 3) Salaries and wages paid to salesmen during the strike period were included by plaintiff as "strike expense" in Exhibit 122, p. 16. (1740; Ex. 122, p. 16)

  83. Plaintiff included $4,546,066 of "Ad Valorem Taxes" as 1949 "strike expense" and $1,068,422 of "Ad Valorem Taxes" as 1946 "strike expense." (Ex. 122, p. 16; Ex. 244) The 1949 amount was calculated by considering "the pro rata amount of tax accrual multiplied by the number of strike days." (Ex. BK, p. 6) U. S. Steel would have been required to pay these taxes during 1949 regardless of its rate of operations. (1862)

  84. Plaintiff included $5,272,728 of "Depreciation" as 1949 "strike expense" and approximately $4,539,607 *fn23" of "Depreciation" as 1946 "strike expense." (Ex. 122, p. 16; Ex. 244) The figures are based on U. S. Steel's own calculations of accrued depreciation "applicable to the strike period." (Ex. 122, pp. 7, 15)

  85. Dues to the American Iron & Steel Institute and contributions to charity were probably included by plaintiff as 1949 "strike expense" under the category of "Selling, General and Administrative Expense." It was plaintiff's policy to consider such payments as "strike expense" if the payments were made during the period of the 1949 strike, regardless of whether or not the timing of the payments had anything to do with the strike. (1843-1848)

  86. Plaintiff has failed to prove by a fair preponderance of the credible evidence that many of the expense items denominated as "strike expense" in Exhibit 244 (for the strike in 1946) and Exhibit 122, p. 16 (for the strike in 1949) served an objective or purpose substantially different from expense items of a comparable nature incurred during periods when production and shipments at plaintiff's steel-making facilities were not completely stopped as a result of a strike. (See, e. g., Findings of Fact #81-#85; see, generally, Findings of Fact #70, #74)

  87. Plaintiff has failed to prove by a fair preponderance of the credible evidence that classification of its alleged "strike expense" in a separate class of deductions as reported on Exhibits 244 and 122, p. 16 (totaling $30,375,768 for 1946 and $52,875,809 for 1949) is "reasonable in a business of the type * * * the taxpayer conducts and * * * applicable in the light of the taxpayer's business experience and accounting practice." Reg. 130, § 40.433 (b)-3 (d) (2).

  88. Plaintiff has failed to prove by a fair preponderance of the credible evidence that its alleged "strike expense" as defined in Rooney's letter of February 22, 1946 (Findings of Fact #71, #75, #78) is a separate and distinct class of deductions within the meaning of § 433 (b) (9) and Reg. 130, § 40.433 (b)-3 (d) (2).

  89. Plaintiff has failed to prove by a fair preponderance of the credible evidence that it is entitled to application of § 433 (b) (9) for the year 1949.

  DISCUSSION OF PLAINTIFF'S § 433 (b) (9) CLAIM

  The issue presented by a taxpayer's proposed classification of deductions is largely one of fact. Quaker Oats Co., 28 T.C. 626, 642 (1957); Great American Indemnity Co., 19 T.C. 229, 235 (1952), aff'd per curiam, 211 F.2d 407 (2nd Cir. 1954); Denman Tire & Rubber Co., 14 T.C. 706, 721 (1950), aff'd on other grounds, 192 F.2d 261 (6th Cir. 1951); Tovrea Land & Cattle Co., 10 T.C. 90, 95 (1948); Green Bay Lumber Co., 3 T.C. 824, 831 (1944).

  Plaintiff has already acknowledged that "all except a relatively small part" of the alleged "strike expense" reported for the periods of the 1946 and 1949 strikes on Exhibit 244 and Exhibit 122, p. 16 would have been incurred by U. S. Steel whether or not the strikes had occurred. (See Findings of Fact #77, #80)

  In support of its claim, plaintiff argues that the objective and purpose of "paying or accruing any charges, including fixed costs" in connection with the 1946 and 1949 strikes should be distinguished for § 433 (b) (9) purposes from the objective and purpose of paying or accruing expenses during other periods. Plaintiff suggests in very broad, conclusory terms that the "objective and purpose" of incurring all expenses during the 1946 and 1949 strike periods was "in relation to preserving plant and management apparatus while no products are being produced," while the "objective and purpose" of incurring expenses during other periods is simply "to turn out steel." (Plaintiff's Memorandum of Law Re Alternative Claim as to Strike Expenses, April 24, 1970, p. 9) While engaged in semantics, plaintiff does not seem to consider the fact that it must also incur expenses "in relation to preserving plant and management apparatus" during periods when it is "turning out steel." U. S. Steel has provided this court with no basis for assuming that the total amount of expense incurred "to turn out steel" does not embrace many items of expense related to preservation of plant and management apparatus.

  In short, preservation of plant and management apparatus is an ongoing endeavor for a manufacturer. Such "preservation" is an expense factor at times when plaintiff's steel-making facilities are in operation as well as times when its steel-making facilities are shut down completely. This court cannot subscribe to a general theory that (a) all expenses incurred to maintain physical facilities and management structure during a period when production and shipments of steel products is stopped completely due to a strike may be distinguished in objective and purpose under § 433 (b) (9) from (b) all such expenses incurred during other periods.

  Plaintiff relies on holdings in several Tax Court cases, particularly Arrow-Hart & Hegeman Electric Co., 7 T.C. 1350 (1946) and National Biscuit Co., 29 T.C. 409 (1957). However, none of the holdings in cases cited by plaintiff applies to the record presented in the instant case. In Arrow-Hart, the court held, on the factual record presented, that a taxpayer's expenses for "salaries paid in excess of employment period" (i. e., pensions, payments to widows, sickness pay and severance allowance) belonged in a class of deductions separate and distinct from "routine salaries." Arrow-Hart & Hegeman Electric Co., supra at 1372-1375.

  In National Biscuit, the court cited the holding in Arrow-Hart and held that vacation pay should be treated as a separate class of deductions just as pensions were in Arrow-Hart. National Biscuit Co., supra, 29 T.C. at 416. The court reasoned that vacation pay was akin to pensions and that each of these types of compensation covered a period during which the employee was not required to perform services.

  In the present case, the evidence indicates that U. S. Steel employees were paid wages or salaries during the period of the 1949 strike only if they were "ready and willing to work at management's direction" during the strike. (See Findings of Fact #81, #82) In contrast to the situations in Arrow-Hart and National Biscuit, payments of salaries and wages to U. S. Steel employees during the strike period were subject to the same basic requirements as payments during other periods. Employees received wages and salaries only upon the condition that they satisfied the directives of management and exhibited a readiness to work during the strike period.

  Plaintiff also relies on United Steelworkers of America v. C.C.I. Corporation, 395 F.2d 529 (10th Cir. 1968), cert. denied, 393 U.S. 1019, 89 S. Ct. 627, 21 L. Ed. 2d 564 (1969); and W. L. Mead, Inc. v. International Brotherhood of Teamsters, 129 F. Supp. 313 (D.Mass.1955), aff'd, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 25, A.F.L. v. W. L. Mead, 230 F.2d 576 (1st Cir. 1956), appeal dismissed on other grounds, 352 U.S. 802, 77 S. Ct. 21, 1 L. Ed. 2d 37 (1956). However, neither of these cases dealt with tax considerations. Instead, the actions involved employers' claims against unions for damages resulting from breaches of collective bargaining agreements.

  Plaintiff included "accrued" ad valorem taxes and "accrued" depreciation as items of expense under its broad classification of "strike expense." Ad valorem property taxes are based upon ownership of property, and are payable regardless of whether the property is used or not. See Finding of Fact #83; Powell v. Gleason, 50 Ariz. 542, 74 P.2d 47, 50 (1937); see also Pacific Fruit Express Co. v. Oklahoma Tax Commission, 27 F. Supp. 279, 283 (W.D.Okla.1939); United States v. Allegheny County, 322 U.S. 174, 184, 64 S. Ct. 908, 88 L. Ed. 1209 (1944).

  Depreciation in general is a measured allowance (for wear and tear and absolescence of a depreciable asset) allocated on a time basis for the period of the estimated useful life of the asset. See Fribourg Navigation Co., Inc. v. Commissioner of Internal Revenue, 383 U.S. 272, 276-277, 86 S. Ct. 862, 15 L. Ed. 2d 751 (1966); United States v. Ludey, 274 U.S. 295, 300-301, 47 S. Ct. 608, 71 L. Ed. 1054 (1927); Accountants' Handbook, section 17 (4th ed. 1965). Depreciation expense accrues during a period when production at steel-making facilities is stopped completely due to a strike as well as during other periods.

  U. S. Steel, pointing to Rooney's letter of February 22, 1946, argues that "it was plaintiff's accounting practice to label all expenses incurred during the course of a general steel strike as 'strike expense.'" (Plaintiff's Memorandum of Law, April 24, 1970, p. 11; Findings of Fact #71, #75) However, plaintiff's witness Scott conceded that the primary purpose of labeling all such expenses as "strike expense" was to show U. S. Steel's total cash costs during the period of the strike. (Finding of Fact #79) Plaintiff failed to establish that many of the items of expense labeled as "strike expense" differed in character from comparable items of expense incurred during other periods. (Findings of Fact #81-#85, #86)

  As far as plaintiff's accounting practice is concerned, I believe that the testimony of its witnesses on the § 433 (b) (9) claim was inconclusive. At any rate, a taxpayer's accounting practice is but one factor to be considered by a court in weighing a claim for separate classification of deductions under § 433 (b) (9) and its forerunner in the World War II Act, 26 U.S.C. Excess Profits Taxes § 711 (b) (1) (J). See Quaker Oats Co., supra, 28 T.C. at 644; Frank H. Fleer Corporation, 10 T.C. 191, 199 (1948). If accounting practice were necessarily determinative, eligibility for relief might be based upon the complex nature of a taxpayer's accounting system rather than upon reasonableness in classification of deductions. See, generally, Great American Indemnity Co., supra, 19 T.C. at 237-238.

  In several decisions, the Tax Court has commented generally that § 711 (b) (1) (J) and its Korean Act counterpart, § 433 (b) (9), were intended as "remedial" statutes. However, in each case where this general comment has been made, the Tax Court has proceeded to examine the evidence presented in order to make a factual determination. In some instances, the court found that a taxpayer's proposed classification was justified. (See, e. g., Green Bay Lumber Co., supra; National Biscuit Co., supra) In another, the court decided that the taxpayer was not entitled to relief under the relevant statute. (See Quaker Oats Co., supra, 28 T.C. at 644 ("The objective and purpose for all four types of expenditures was substantially the same, and we know of no reason why they should be grouped into more than one 'class' for the purpose of the statute."))

  On the record presented herein, this court concludes that U. S. Steel has failed to establish its alleged "strike expense" as a separate and distinct class of deductions within the meaning of § 433 (b) (9) and its concomitant regulation. (See Findings of Fact #68-#89)

  CONCLUSIONS OF LAW

  1. The court has jurisdiction of this action pursuant to 28 U.S.C. § 1346 (a) (1).

  2. As to plaintiff's claim for additional depletion deductions pursuant to 26 U.S.C. §§ 23 (m) and 114 (b) (4) (1939 Code), there is no genuine issue as to any material fact and defendant is entitled to judgment as a matter of law. 270 F. Supp. 253 (S.D.N.Y.1967).

  3. As to plaintiff's claim that "low quality of coking coal and iron ore, resulting in loss of production" was a qualifying abnormality for excess profits tax purposes within the meaning of 26 U.S.C. Excess Profits Taxes § 442 (1939 Code), there is no genuine issue as to any material fact and defendant is entitled to judgment as a matter of law. 305 F. Supp. 497 (S.D.N.Y.1969), 305 F. Supp. 516 (S.D.N.Y.1969).

  4. As to plaintiff's claim that "abnormal cost-price relationships, resulting in the depression of Plaintiff's business and earnings" constituted a qualifying abnormality within the meaning of § 442, there is no genuine issue as to any material fact and defendant is entitled to judgment as a matter of law. 305 F. Supp. 508 (S.D.N.Y.1969), 305 F. Supp. 516 (S.D.N.Y.1969).

  With respect to the issues tried by the court January 19-23, January 26-30, February 2-3, February 19-20, February 24-27, March 2-5, and May 22, 1970, this court makes the following conclusions of law:

  5. Plaintiff has failed to prove by a fair preponderance of the credible evidence that two 1948 strikes were "unusual" events within the meaning of § 442 (a) (1).

  6. Plaintiff has failed to prove by a fair preponderance of the credible evidence that its normal production, output or operation was interrupted or diminished to a legally significant extent in 1948 as a result of the South Works explosion, the only "unusual" occurrence within the meaning of § 442 which U. S. Steel established for 1948.

  7. Plaintiff has failed to prove by a fair preponderance of the credible evidence that it is entitled to application of § 442 for the year 1948.

  8. Plaintiff has proved by a fair preponderance of the credible evidence that its normal production, output or operation was interrupted or diminished to a legally significant extent in 1949 as a result of the 1949 strike by the United Steel Workers, an "unusual" occurrence within the meaning of § 442.

  9. Plaintiff has proved by a fair preponderance of the credible evidence that it is entitled to application of § 442 (c) for the year 1949.

  10. Plaintiff has failed to prove by a fair preponderance of the credible evidence that its alleged "strike expense" is a separate and distinct class of deductions within the meaning of 26 U.S.C. Excess Profits Taxes § 433 (b) (9) (1939 Code).

  11. Plaintiff has failed to prove by a fair preponderance of the credible evidence that it is entitled to application of § 433 (b) (9) for the year 1949.

  To summarize briefly, plaintiff is entitled to application of § 442 (c) for the year 1949; in all other respects, the complaint must be dismissed.

  Settle judgment on notice in accordance with the above determinations. No costs.


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