586 F2d 967 Cities Service Company v. United States

586 F.2d 967

78-2 USTC P 9802

CITIES SERVICE COMPANY, Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.

No. 320, Docket 78-6100.

United States Court of Appeals,
Second Circuit.

Argued Nov. 3, 1978.
Decided Nov. 6, 1978.

James W. Robinson, Asst. Gen. Counsel, Cities Service Co., Tulsa, Okl. (Thomas E. Tyre, New York City, Victor K. Kulp, John A. Lyckman, Attys., Cities Service Co., Tulsa, Okl., of counsel), for plaintiff-appellant.

Frederick P. Schaffer, Asst. U. S. Atty., Southern District of New York, New York City (Robert B. Fiske, Jr., U. S. Atty., William G. Ballaine, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee.

Before KAUFMAN, Chief Judge, and FEINBERG and TIMBERS, Circuit Judges.


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We affirm essentially for the reasons stated in Judge Tenney's opinion for the district court, reported at 443 F.Supp. 392 (S.D.N.Y.1978). In the prior appeal in this case, Cities Service Co. v. United States, 522 F.2d 1281 (2d Cir. 1974), Cert. denied, 423 U.S. 827, 96 S.Ct. 43, 46 L.Ed.2d 43 (1975), we held that issue price for the purpose of calculating "bond discount" was the market value of the debentures on the date of issue. In addition, following the Supreme Court's holding in Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 147, 94 S.Ct. 2129, 40 L.Ed.2d 717 (1974), we held that "bond discount" and "loss on repurchase" are merely different terms for the same economic phenomenon. 522 F.2d at 1282 n.2. That holding is dispositive of the instant appeal. Appellant's contention would permit it, over the life of the debentures, to recover in deductions the entire difference between the amount it pays on repurchase or retirement and the $45 million original consideration for the preferred. This is clearly contrary to our opinion on the first appeal. The judgment is affirmed.