source: Caselaw Access Project

author: Justice White

license: Public Domain

text:
    BUFFERD v. COMMISSIONER OF INTERNAL REVENUE
    No. 91-7804.
    Argued November 30, 1992
    Decided January 25, 1993

      White, J., delivered the opinion for a unanimous Court.

      Stuart J. Filler, by appointment of the Court, 506 U. S. 809, argued the cause for petitioner. With him on the briefs were Toni Robinson and Mary Ferrari.

      Kent L. Jones argued the cause for respondent. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Bruton, Deputy Solicitor General Wallace, Ann B. Durney, and Janet Kay Jones.

       Briefs of amici curiae urging reversal were filed for Arthur H. Boelter and John J. White, Jr., pro se; and for Charles T. Green et al. by Robert I. White.

   Justice White

delivered the opinion of the Court.

On his 1979 income tax return, petitioner, a shareholder in a Subchapter S corporation, claimed as “pass-through” items portions of a deduction and a tax credit reported on the corporation’s return. The question presented is whether the 3-year period in which the Internal Revenue Service is permitted to assess petitioner’s tax liability runs from the filing date of the individual return or the corporate return. We conclude with the Tax Court and the Court of Appeals for the Second Circuit that the relevant date is that on which petitioner’s return was filed.

I

Subchapter S of the Internal Revenue Code, 26 U. S. C. §§ 1361-1379, was enacted in 1958 to eliminate tax disadvantages that might dissuade small businesses from adopting the corporate form and to lessen the tax burden on such businesses. The statute accomplishes these goals by means of a pass-through system under which corporate income, losses, deductions, and credits are attributed to individual shareholders in a manner akin to the tax treatment of partnerships. See §§ 1366-1368. In addition, since 1966, “S corporations” have been liable for certain capital gains and other taxes. 80 Stat. 111, 113; 26 U. S. C. §§ 1374, 1378.

Petitioner was treasurer and a shareholder of Compo Financial Services, Inc., an S corporation. On February 1, 1980, Compo filed a return for the tax year of December 26, 1978, to November 30, 1979, as required by § 6037(a) of the Code. On that return, Compo reported a loss deduction and an investment tax credit arising from its partnership interest in a venture known as Printers Associates. Petitioner and his wife filed a joint return for 1979 on April 15, 1980. Their return claimed a pro rata share of the deduction and credit reported by Compo pursuant to the pass-through provisions of Subchapter S.

Code § 6501(a) establishes a generally applicable statute of limitations providing that the Internal Revenue Service may assess tax deficiencies within a 3-year period from the date a return is filed. That limitations period may be extended by written agreement. § 6501(c)(4). In March 1983, before three years had passed from the time the joint return was filed, petitioner agreed to extend the period in which deficiencies arising from certain claims on the return could be assessed against him. No extension was obtained from Compo with respect to its return for the 1978-1979 tax year.

In 1987, the Commissioner determined that the loss deduction and credit reported by Compo were erroneous and sent a notice of deficiency to petitioner based on the loss deduction and credit that he had claimed on his return. In the Tax Court, petitioner contended that the Commissioner’s claim was time barred because the disallowance was based on an error in Compo’s return, for which the 3-year assessment period had lapsed. The Tax Court found for the Commissioner, relying on its decision in Fehlhaber v. Commissioner, 94 T. C. 863 (1990), aff’d, 954 F. 2d 653 (CA11 1992). See App. 61. The Court of Appeals for the Second Circuit affirmed, holding that, where a tax deficiency is assessed against the shareholder, the filing date of the shareholder’s return is the relevant date for purposes of § 6501(a). 952 F. 2d 675 (1992). Because another Court of Appeals has a contrary view, we granted certiorari. 505 U. S. 1203 (1992).

II

Title 26 U. S. C. § 6501(a) states simply that “the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed . . . The issue before us is whether “the” return is that of petitioner or that of the corporation which was the source of the loss and credit claimed on petitioner’s return. Petitioner’s position is that the Commissioner had three years from the date his return was filed to object to that return in any respect except the loss and credit items passed through to him by the corporation. To disallow those items, petitioner argues, the Commissioner must have acted within three years of the filing of the corporate return. Under this approach, “the” return referred to in § 6501(a) becomes two returns, and petitioner claims that there is adequate statutory basis for his submission. We have no doubt that the courts below properly concluded, as the Commissioner argued, that it is the filing of petitioner’s return that triggers the running of the statutory period.

The Commissioner can only determine whether the taxpayer understated his tax obligation and should be assessed a deficiency after examining that taxpayer’s return. Plainly, then, “the” return referred to in § 6501(a) is the return of the taxpayer against whom a deficiency is assessed. Here, the Commissioner sought to assess taxes which petitioner owed under the Code because his return had erroneously reported a loss and credit to which he was not entitled. The fact that the corporation’s return erroneously asserted a loss and credit to be passed through to its shareholders is of no consequence. In this case, the errors on the corporate return did not and could not affect the tax liability of the corporation, and hence the Commissioner could only assess a deficiency against the stockholder-taxpayer whose return claimed the benefit of the errors. Under the plain language of § 6501(a), the Commissioner’s time to make the assessment ran from the filing date of petitioner’s return.

By contrast, the S corporation’s return, which petitioner asserts triggers the beginning of the limitations period, is deficient precisely because it does not contain all of the information necessary to compute a shareholder’s taxes. If the Internal Revenue Service were required to rely on that return, it would be forced to conduct its assessment on the basis of incomplete information:

“While [the corporate return] may show petitioner’s distributive share of losses, it does not indicate his adjusted basis in his corporate stock, which is information necessary to determine if the loss is deductible. Nor does it show petitioner’s income, losses, deductions, and credits from other sources. Moreover, the information return of the S corporation does not relate to the same taxable period as petitioner’s return . . . .” Fehlhaber, supra, at 869 (citation omitted).

As noted in analogous cases, tax returns that “lack the data necessary for the computation and assessment of deficiencies” generally should not be regarded as triggering the period of assessment. Automobile Club of Mich. v. Commissioner, 353 U. S. 180, 188 (1957) (citing Commissioner v. Lane-Wells Co., 321 U. S. 219 (1944)).

Petitioner asserts that § 6501(a) supports a contrary view when read in light of two related Code provisions pertaining to S corporations. Section 6012(a)(2) requires both Sub-chapter C and Subchapter S corporations to file income tax returns. Section 6037(a) specifies the information that each S corporation’s return must provide (including “each shareholder’s pro rata share of each item of the corporation”) and further states that “[a]ny return filed pursuant to this section shall, for purposes of [26 U. S. C. §§6501-6531], be treated as a return filed by the corporation under section 6012.”

We do not see that these provisions aid petitioner’s cause. Read together, §§ 6012(a)(2), 6037(a), and 6501(a) establish only that each S corporation must file a tax return containing certain information and that a Commissioner desiring to make an assessment must act within three years of filing. Nothing on the face of these provisions demonstrates that an individual’s income tax return is brought within the compass of § 6037(a)’s reference to “any return” simply because a portion of that return reports income and losses that have passed through from the return of an S corporation. If anything, the phrase “[a]ny return filed pursuant to this section,” coupled with the fact that § 6037(a) is concerned with describing the contents of the corporation’s return, indicates that the provision is not meant to determine when the assessment period for a shareholder’s individual tax return begins.

Petitioner argues that this reading of the relevant provisions runs afoul of the fact that, prior to 1966, S corporations were not subject to taxation. According to petitioner, no purpose would have been served by establishing an assessment period that applied to returns reporting corporate income on which no taxes could be assessed but not to the returns of corporate stockholders. This argument fails because even in the period when the S corporation could net be taxed, examination of a corporation’s return was necessary to determine if it could lay valid claim to Subchapter S status. Section 6037(a) thus originally functioned to set the starting date of the 3-year period within which that determination had to be made. See United States v. Adams Building Co., 531 F. 2d 342, 343, n. 2 (CA6 1976); see also 952 F. 2d, at 677 (citing Fehlhaber v. Commissioner, 94 T. C. 863 (1990)). Petitioner maintains that such a function would be superfluous because, if the election of S corporation status were found invalid, the corporation’s return would “automatically be subject to the existing rules for C corporations.” Brief for Petitioner 38. But this proposition is hardly self-evident, and petitioner cites no authority to support it. In the absence of § 6037(a), the Internal Revenue Service could claim that a corporation which flies a return containing an erroneous election of Subchapter S status has failed to file any return, which would allow the Service to issue a notice of deficiency with respect to the return “at any time.” See § 6601(c)(3); cf. Germantown Trust Co. v. Commissioner, 309 U. S. 304, 307 (1940); Mason v. United States, 801 F. Supp. 718, 721 (ND Ga. 1992).

The Ninth Circuit’s rejection in Kelley v. Commissioner, 877 F. 2d 756 (1989), of the view adopted by the Commissioner was prompted in part by a concern to avoid unfairly burdening shareholders, who might find it difficult to obtain corporate records necessary to defend against a deficiency assessment based on an adjustment made to a corporation’s return years after it was filed. The Fifth Circuit’s opinion by Judge Goldberg in Green v. Commissioner, 963 F. 2d 783 (1992), neatly summarizes the appropriate response to that concern:

“First, it is not unfamiliar in the world of tax to have ‘an individual’s income tax return ... dependent on records maintained by another entity.’ Fehlkaber, 954 F. 2d at 658 (citing partnership and trust taxation as examples). Second, the rule generally does not impose an undue burden on the corporation or the shareholder. ... A shareholder can ‘take the necessary steps to ensure that the corporation preserves the relevant records.’ Id. Such protective steps simply do not constitute an overly oppressive task for the shareholder. Bufferd, 952 F. 2d at 678. . . . Finally, we reject any suggestion that we elevate the ‘perceived unfairness to taxpayers’ over our duty to strictly construe in favor of the government a statute of limitation when the petitioner seeks application of the statute so as to bar the rights of the government. Fehlkaber, 954 F. 2d at 658.” Id., at 789.

H-( H-(

As found by the courts below, the plain language of § 6501(a) supports the Commissioner. The statutory evidence and policy considerations proffered by petitioner offer no basis for questioning this conclusion. We hold that the limitations period within which the Internal Revenue Service must assess the income tax liability of an S corporation shareholder runs from the date on which the shareholder’s return is filed. The judgment of the Court of Appeals is affirmed.

It is so ordered.

       Subchapter S was substantially amended and recodified by the Sub-chapter S Revision Act of 1982, 96 Stat. 1669. The pass-through provisions in effect in the period relevant to this case, see 26 U. S. C. §§ 1373-1374 (1976 ed.), differ in certain respects from the present provisions. These differences do not affect the case.

       In relevant part, the statute reads:
      “§ 6037. Return of S corporation
      “(a) In general
      “Every S corporation shall make a return for each taxable year, stating specifically the items of its gross income and the deductions allowable by subtitle A [and other information]. Any return filed pursuant to this section shall, for purposes of chapter 66 (relating to limitations), be treated as a return filed by the corporation under section 6012.”

       Phyllis Bufferd settled separately with the Commissioner and is not a party to this action.

       The statute reads in part:
      “§ 6601. Limitations on assessment and collection
      “(a) General rule
      “Except as otherwise provided . . . the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed ...

        Kelley v. Commissioner, 877 F. 2d 766 (CA9 1989), held that the filing date of the corporation’s return controls. The Fifth and Eleventh Circuits have joined the Second Circuit in declining to follow Kelley. See Green v. Commissioner, 963 F. 2d 783 (CA6 1992); Fehlhaber v. Commissioner, 954 F. 2d 653 (CA11 1992).

       Even if it could credibly be argued that § 6501(a) is ambiguous because it does not expressly indicate how it is to be applied to S corporations and their stockholders, the Commissioner’s construction of the section is a reasonable one to say the least, and we should accept it absent convincing grounds for rejecting it. As noted in Badaracco v. Commissioner, 464 U. S. 386 (1984), “ ‘limitations statutes barring the collection of taxes otherwise due and unpaid are strictly construed in favor of the Government.’ ” Id., at 392 (quoting Lucia v. United States, 474 F. 2d 565, 570 (CA5 1973)).

       In these circumstances, the incompleteness of the corporate return provides a reason for doubting petitioner’s understanding of the Code. We do not thereby suggest that, for cases in which a corporate return does supply all of the information necessary to process a shareholder’s return, the mere fact of completeness is sufficient to establish the corporate return as “the” return of § 6501(a).

       Section 6012(a)(2) reads:
      “§ 6012. Persons required to make returns of income
      “(a) General rule
      “Returns with respect to income taxes under subtitle A shall be made by the following:...
      “(2) Every corporation subject to taxation under subtitle A ... .”

       Since S corporations are now subject to limited taxation, § 6037(a) serves the additional function of determining the assessment period for those taxes. See 962 F. 2d, at 678.

       Petitioner’s reading of § 6037(a) is sufficiently lacking in textual support to obviate any need to examine legislative history. However, several courts have noted that the history of § 6037 contains evidence in support of the Commissioner’s interpretation. See, e. g., Green v. Commissioner, 963 F. 2d, at 788-790; Fehlhaber v. Commissioner, 954 F. 2d, at 656-657. Section 6037(a) was introduced in the Technical Amendments Act of 1958, 72 Stat. 1606, 1656. The Senate Report explaining the provision states:
      “Notwithstanding the fact that an electing small-business corporation is not subject to the tax imposed by chapter 1 of the 1954 Code, such corporation must make a return for each taxable year in accordance with new section 6037 .... Such return will be considered as a return filed under section 6012 for purposes of the provisions of chapter 66, relating to limitations. Thus, for example, the period of limitation on assessment and collection of any corporate tax found to be due upon a subsequent determination that the corporation was not entitled to the benefits of subchapter S, will run from the date of filing of the return required under the new section 6037.” S. Rep. No. 1983, 85th Cong., 2d Sess., 226 (1968).
      Although the passage would seem to support the Commissioner’s view, petitioner, following the reasoning of the Ninth Circuit in Kelley v. Commissioner, 877 F. 2d 756 (1989), maintains that the phrase “for example” necessarily implies that the Senate also had in mind the present case. This implication is hardly necessary: The phrase just as easily could have been meant to avoid foreclosing other applications of § 6037(a) to corporate returns. Indeed, had “for example” been omitted, the Commissioner could now rely on this passage to argue that the period for assessing capital gains taxes under 26 U. S. C. § 1374 is not controlled by § 6037(a), but is instead governed by the filing date of a shareholder’s return or some other triggering event. Likewise, in the absence of the phrase, it could be argued that, because the legislative history refers exclusively to a case in which taxes are assessed against a corporation that erroneously claims Subchapter S status, the period in which penalties may be assessed against the corporation should not be governed by § 6037(a).
      The Commissioner claims additional support in the Senate Report accompanying the 1982 amendments to Subchapter S, which states in relevant part:
      “Under present law, a taxpayer’s individual tax liability is determined in proceedings between the Internal Revenue Service and the individual whose tax liability is in dispute. Thus, any issues involving the income or deductions of a subchapter S corporation are determined separately in ... proceedings involving the individual shareholder whose tax liability is affected. Statutes of limitations apply at the individual level, based on the returns filed by the individual. The filing by the corporation of its return does not affect the statute of limitations applicable to the shareholders.” S. Rep. No. 97-640, p. 25 (1982).
      This passage is of little value to either side. While the views of a Congress engaged in the amendment of existing law as to the intent behind that law are “entitled to significant weight,” Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U. S. 572, 596 (1980), in this instance, the Report’s account of “present law” may have been colored, if not wholly determined, by the Tax Court, which had already adopted the view espoused by the Commissioner. See Leonhart v. Commissioner, 27 TCM 443 (1968), ¶ 68,098 P-H Memo TC, aff’d on other grounds, 414 F. 2d 749 (CA4 1969).

      Petitioner additionally asserts that the returns of shareholders of a Subchapter C corporation cannot be adjusted after the limitations period has run for assessing the corporation’s return, and that therefore S corporation shareholders are entitled to identical treatment. Brief for Petitioner 11-12, 21-22. However, petitioner has not provided a single authority in support of the premise of this assertion. At oral argument, the Commissioner maintained that the opposite is the case, see Tr. of Oral Arg. 27-28, relying mainly on Commissioner v. Munter, 331 U. S. 210 (1947), which, without addressing the limitations issue, allowed an adjustment of shareholders’ 1940 taxes based upon the Commissioner’s finding that, at the time of its creation by merger in 1928, the corporation had acquired the accumulated earnings and profits of its predecessor corporations. A recent Tax Court decision also provides indirect support for the Commissioner’s view:
      “We have held that the relevant return for determining whether, at the time a deficiency notice was issued, the period for assessment had expired under section 6601(a) ‘is that of petitioner against whom respondent has determined a deficiency.’ [Citing Fehlhaber, 94 T. C., at 868.] We have maintained that position consistently, without regard to the nature of the source entity involved. See [cases involving partnerships, trusts, and S corporations].” Lardas v. Commissioner, 99 T. C. 490, 493 (1992).
      In any event, it is doubtful that petitioner’s conclusion follows from his premise, for the taxation of C corporations and their stockholders is so markedly different from that of S corporations.


author: Justice O’Connor Justice Stevens,

text:
    ZAFIRO et al. v. UNITED STATES
    No. 91-6824.
    Argued November 2, 1992
    Decided January 25, 1993

      O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and White, Blackmun, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 541.

      Kenneth L. Cunniff, by appointment of the Court, 504 U. S. 906, argued the cause and filed briefs for petitioners.

      John F. Manning argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Kristina L. Ament.

   Justice O’Connor

delivered the opinion of the Court.

Rule 8(b) of the Federal Rules of Criminal Procedure provides that defendants may be charged together “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Rule 14 of the Rules, in turn, permits a district court to grant a severance of defendants if “it appears that a defendant or the government is prejudiced by a joinder.” In this case, we consider whether Rule 14 requires severance as a matter of law when codefendants present “mutually antagonistic defenses.”

I

Gloria Zafiro, Jose Martinez, Salvador Garcia, and Alfonso Soto were accused of distributing illegal drugs in the Chicago area, operating primarily out of Soto’s bungalow in Chicago and Zafiro’s apartment in Cicero, a nearby suburb. One day, Government agents observed Garcia and Soto place a large box in Soto’s car and drive from Soto’s bungalow to Zafiro’s apartment. The agents followed the two as they carried the box up the stairs. When the agents identified themselves, Garcia and Soto dropped the box and ran into the apartment. The agents entered the apartment in pursuit and found the four petitioners in the living room. The dropped box contained 55 pounds of cocaine. After obtaining a search warrant for the apartment, agents found approximately 16 pounds of cocaine, 25 grams of heroin, and 4 pounds of marijuana inside a suitcase in a closet. Next to the suitcase was a sack containing $22,960 in cash. Police officers also discovered 7 pounds of cocaine in a car parked in Soto’s garage.

The four petitioners were indicted and brought to trial together. At various points during the proceeding, Garcia and Soto moved for severance, arguing that their defenses were mutually antagonistic. Soto testified that he knew nothing about the drug conspiracy. He claimed that Garcia had asked him for a box, which he gave Garcia, and that he (Soto) did not know its contents until they were arrested. Garcia did not testify, but his lawyer argued that Garcia was innocent: The box belonged to Soto and Garcia was ignorant of its contents.

Zafiro and Martinez also repeatedly moved for severance on the ground that their defenses were mutually antagonistic. Zafiro testified that she was merely Martinez’s girlfriend and knew nothing of the conspiracy. She claimed that Martinez stayed in her apartment occasionally, kept some clothes there, and gave her small amounts of money. Although she allowed Martinez to store a suitcase in her closet, she testified, she had no idea that the suitcase contained illegal drugs. Like Garcia, Martinez did not testify. But his lawyer argued that Martinez was only visiting his girlfriend and had no idea that she was involved in distributing drugs.

The District Court denied the motions for severance. The jury convicted all four petitioners of conspiring to possess cocaine, heroin, and marijuana with the intent to distribute. 21 U. S. C. § 846. In addition, Garcia and Soto were convicted of possessing cocaine with the intent to distribute, § 841(a)(1), and Martinez was convicted of possessing cocaine, heroin, and marijuana with the intent to distribute, ibid.

Petitioners appealed their convictions. Garcia, Soto, and Martinez claimed that the District Court abused its discretion in denying their motions to sever. (Zafiro did not appeal the denial of her severance motion, and thus, her claim is not properly before this Court.) The Court of Appeals for the Seventh Circuit acknowledged that “a vast number of cases say that a defendant is entitled to a severance when the ‘defendants present mutually antagonistic defenses’ in the sense that ‘the acceptance of one party’s defense precludes the acquittal of the other defendant.’ ” 945 F. 2d 881, 885 (1991) (quoting United States v. Keck, 773 F. 2d 759, 765 (CA7 1985)). Noting that “mutual antagonism . .. and other . . . characterizations of the effort of one defendant to shift the blame from himself to a codefendant neither control nor illuminate the question of severance,” 945 F. 2d, at 886, the Court of Appeals found that the defendants had not suffered prejudice and affirmed the District Court’s denial of severance. We granted the petition for certiorari, 503 U. S. 935 (1992), and now affirm the judgment of the Court of Appeals.

II

Rule 8(b) states that “[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials “play a vital role in the criminal justice system.” Richardson v. Marsh, 481 U. S. 200, 209 (1987). They promote efficiency and “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Id., at 210. For these reasons, we repeatedly have approved of joint trials. See ibid.; Opper v. United States, 348 U. S. 84, 95 (1954); United States v. Marchant, 12 Wheat. 480 (1827); cf. 1 C. Wright, Federal Practice and Procedure § 223 (2d ed. 1982) (citing lower court opinions to the same effect). But Rule 14 recognizes that joinder, even when proper under Rule 8(b), may prejudice either a defendant or the Government. Thus, the Rule provides:

“If it appears that a defendant or the government is prejudiced by a joinder of . . . defendants ... for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”

In interpreting Rule 14, the Courts of Appeals frequently have expressed the view that “mutually antagonistic” or “irreconcilable” defenses may be so prejudicial in some circumstances as to mandate severance. See, e. g., United States v. Benton, 852 F. 2d 1456, 1469 (CA6), cert. denied, 488 U. S. 993 (1988); United States v. Smith, 788 F. 2d 663, 668 (CA10 1986); Keck, supra, at 765; United States v. Magdaniel-Mora, 746 F. 2d 715, 718 (CA11 1984); United States v. Berkowitz, 662 F. 2d 1127, 1133-1134 (CA5 1981); United States v. Haldeman, 181 U. S. App. D. C. 254, 294-295, 559 F. 2d 31, 71-72 (1976), cert. denied, 431 U. S. 933 (1977). Notwithstanding such assertions, the courts have reversed relatively few convictions for failure to grant a severance on grounds of mutually antagonistic or irreconcilable defenses. See, e. g., United States v. Tootick, 952 F. 2d 1078 (CA9 1991); United States v. Rucker, 915 F. 2d 1511, 1512-1513 (CA11 1990); United States v. Romanello, 726 F. 2d 173 (CA5 1984). The low rate of reversal may reflect the inability of defendants to prove a risk of prejudice in most cases involving conflicting defenses.

Nevertheless, petitioners urge us to adopt a bright-line rule, mandating severance whenever codefendants have conflicting defenses. See Brief for Petitioners i. We decline to do so. Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion. See, e. g., United States v. Lane, 474 U. S. 438, 449, n. 12 (1986); Opper, supra, at 95.

We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U. S. 750, 774-775 (1946). Evidence that is probative of a defendant’s guilt but technically admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U. S. 123 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e. g., Tifford v. Wainwright, 588 F. 2d 954 (CA5 1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U. S., at 211.

Turning to the facts of this case, we note that petitioners do not articulate any specific instances of prejudice. Instead they contend that the very nature of their defenses, without more, prejudiced them. Their theory is that when two defendants both claim they are innocent and each accuses the other of the crime, a jury will conclude (1) that both defendants are lying and convict them both on that basis, or (2) that at least one of the two must be guilty without regard to whether the Government has proved its case beyond a reasonable doubt.

As to the first contention, it is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. See, e. g., United States v. Martinez, 922 F. 2d 914, 922 (CA1 1991); United States v. Manner, 281 U. S. App. D. C. 89, 98, 887 F. 2d 317, 324 (1989), cert. denied, 493 U. S. 1062 (1990). Rules 8(b) and 14 are designed “to promote economy and efficiency and to avoid a multiplicity of trials, [so long as] these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.” Bruton, 391 U. S., at 131, n. 6 (internal quotation marks omitted). While “[a]n important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence,” ibid, (emphasis added), a fair trial does not include the right to exclude relevant and competent evidence. A defendant normally would not be entitled to exclude the testimony of a former codefendant if the district court did sever their trials, and we see no reason why relevant and competent testimony would be prejudicial merely because the witness is also a codefendant.

As to the second contention, the short answer is that petitioners’ scenario simply did not occur here. The Government argued that all four petitioners were guilty and offered sufficient evidence as to all four petitioners; the jury in turn found all four petitioners guilty of various offenses. Moreover, even if there were some risk of prejudice, here it is of the type that can be cured with proper instructions, and “juries are presumed to follow their instructions.” Richard son, supra, at 211. The District Court properly instructed the jury that the Government had “the burden of proving beyond a reasonable doubt” that each defendant committed the crimes with which he or she was charged. Tr. 864. The court then instructed the jury that it must “give separate consideration to each individual defendant and to each separate charge against him. Each defendant is entitled to have his or her case determined from his or her own conduct and from the evidence [that] may be applicable to him or to her.” Id., at 865. In addition, the District Court admonished the jury that opening and closing arguments are not evidence and that it should draw no inferences from a defendant’s exercise of the right to silence. Id., at 862-864. These instructions sufficed to cure any possibility of prejudice. See Schaffer v. United States, 362 U. S. 511, 516 (1960).

■Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts. Because petitioners have not shown that their joint trial subjected them to any legally cognizable prejudice, we conclude that the District Court did not abuse its discretion in denying petitioners’ motions to sever. The judgment of the Court of Appeals is

Affirmed.

Justice Stevens,

concurring in the judgment.

When two people are apprehended in possession of a container filled with narcotics, it is probable that they both know what is inside. The inference of knowledge is heightened when, as in this case, both people flee when confronted by police officers, or both people occupy the premises in which the container is found. See ante, at 535-536. At the same time, however, it remains entirely possible that one person did not have such knowledge. That, of course, is the argument made by each of the defendants in this case: that he or she did not know what was in the crucial box or suitcase. See ante, at 536.

Most important here, it is also possible that both persons lacked knowledge of the contents of the relevant container. Moreover, that hypothesis is compatible with individual defenses of lack of knowledge. There is no logical inconsistency between a version of events in which one person is ignorant, and a version in which the other is ignorant; unlikely as it may seem, it is at least theoretically possible that both versions are true, in that both persons are ignorant. In other words, dual ignorance defenses do not necessarily translate into “mutually antagonistic” defenses, as that term is used in reviewing severance motions, because acceptance of one defense does not necessarily preclude acceptance of the other and acquittal of the codefendant.

In my view, the defenses presented in this case did not rise to the level of mutual antagonism. First, as to Garcia and Martinez, neither of whom testified, the only defense presented was that the Government had failed to carry its burden of proving guilt beyond a reasonable doubt. Nothing in the testimony presented by their codefendants, Soto and Zafiro, supplemented the Government’s proof of their guilt in any way. Soto’s testimony that he did not know the contents of the box he delivered with Garcia, as discussed above, could have been accepted in toto without precluding acquittal of his codefendant. Similarly, the jury could have accepted Zafiro’s testimony that she did not know the contents of the suitcase found in her apartment, and also acquitted Martinez.

It is true, of course, that the jury was unlikely to believe that none of the defendants knew what was in the box or suitcase. Accordingly, it must be acknowledged that if the jury had believed that Soto and Zafiro were ignorant, then it would have been more likely to believe that Garcia and Martinez were not. That, however, is not the standard for mutually antagonistic defenses. And in any event, the jury in this case obviously did not believe Soto and Zafiro, as it convicted both of them. Accordingly, there is no basis, in law or fact, for concluding that the testimony of Soto and Zafiro prejudiced their codefendants.

There is even less merit to the suggestion that Soto or Zafiro was prejudiced by the denial of their severance motions. Neither Garcia nor Martinez testified at all, of course, and the District Court explicitly cautioned the jury that the arguments made by their attorneys were not to be considered as evidence. Ante, at 541. Moreover, the assertion by his counsel that Garcia did not know the contents of the box is not inconsistent with Soto’s ignorance or innocence; nor is the similar assertion by counsel for Martinez inconsistent with Zafiro’s possible innocence. In my opinion, the District Court correctly determined that the defenses presented in this case were not “mutually antagonistic.” See App. 88-89.

1 would save for another day evaluation of the prejudice that may arise when the evidence or testimony offered by one defendant is truly irreconcilable with the innocence of a codefendant. Because the facts here do not present the issue squarely, I hesitate in this case to develop a rule that would govern the very different situation faced in cases like People v. Braune, 363 Ill. 551, 557, 2 N. E. 2d 839, 842 (1936), in which mutually exclusive defenses transform a trial into “more of a contest between the defendants than between the people and the defendants.” Under such circumstances, joinder may well be highly prejudicial, particularly when the prosecutor’s own case in chief is marginal and the decisive evidence of guilt is left to be provided by a codefendant.

The burden of overcoming any individual defendant’s presumption of innocence, by proving guilt beyond a reasonable doubt, rests solely on the shoulders of the prosecutor. Join-der is problematic in cases involving mutually antagonistic defenses because it may operate to reduce the burden on the prosecutor, in two general ways. First, joinder may introduce what is in effect a second prosecutor into a case, by turning each codefendant into the other’s most forceful adversary. Second, joinder may invite a jury confronted with two defendants, at least one of whom is almost certainly guilty, to convict the defendant who appears the more guilty of the two regardless of whether the prosecutor has proven guilt beyond a reasonable doubt as to that particular defendant. Though the Court is surely correct that this second risk may be minimized by careful instructions insisting on separate consideration of the evidence as to each co-defendant, ante, at 540-541, the danger will remain relevant to the prejudice inquiry in some cases.

Given these concerns, I cannot share the Court’s enthusiastic and unqualified “preference” for the joint trial of defendants indicted together. See ante, at 537. The Court correctly notes that a similar preference was announced a few years ago in Richardson v. Marsh, 481 U. S. 200, 209 (1987), and that the Court had sustained the permissibility of joint trials on at least two prior occasions. There will, however, almost certainly be multidefendant cases in which a series of separate trials would be not only more reliable, but also more efficient and manageable than some of the mammoth conspiracy cases which the Government often elects to prosecute. And in all cases, the Court should be mindful of the serious risks of prejudice and overreaching that are characteristic of joint trials, particularly when a conspiracy count is included in the indictment. Justice Jackson’s eloquent description of these concerns in his separate opinion in Krulewitch v. United States, 336 U. S. 440, 454 (1949), explains why there is much more at stake here than administrative convenience. See also United States v. Romanello, 726 F. 2d 173 (CA5 1984).

I agree with the Court that a “bright-line rule, mandating severance whenever codefendants have conflicting defenses” is unwarranted. See ante, at 538. For the reasons discussed above, however, I think district courts must retain their traditional discretion to consider severance whenever mutually antagonistic defenses are presented. Accordingly, I would refrain from announcing a preference for joint trials, or any general rule that might be construed as a limit on that discretion.

Because I believe the District Court correctly decided the severance motions in this case, I concur in the Court’s judgment of affirmance.

       See ante, at 538, citing cases. See also State v. Kinkade, 140 Ariz. 91, 93, 680 P. 2d 801, 803 (1984) (defining “mutually exclusive” defenses).

       Cf. Kinkade, 140 Ariz., at 93, 680 P. 2d, at 803 (distinguishing “competing” from mutually, antagonistic defenses).

       “Defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their codefendant. In order to zealously represent his client, each codefendant’s counsel must do everything possible to convict the other defendant. The existence of this extra prosecutor is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on the government prosecutor.” United States v. Tootick, 952 F. 2d 1078, 1082 (CA9 1991). See also United States v. Romanello, 726 F. 2d 173, 179 (CA5 1984).

       See State v. Vinal, 198 Conn. 644, 652, 504 A. 2d 1364, 1368 (1986) (in joint trial with mutually antagonistic defenses, “where one defendant is found not guilty, it becomes likely under these circumstances that the conviction of the losing defendant is more a result of his codefendant’s success in defending himself than it is a product of the state’s satisfaction of its constitutional duty to prove the accused guilty beyond a reasonable doubt”).

        Tootick, 952 F. 2d, at 1082. See also People v. Braune, 363 Ill. 551, 556, 2 N. E. 2d 839, 842 (1936) (“[N]o judge, however learned and skillful,” could have prevented risk of prejudice in particularly aggravated case).

       In neither Opper v. United States, 348 U. S. 84 (1954), nor United States v. Marchant, 12 Wheat. 480 (1827), however, did the Court express a “preference” for joint trials.


author: Justice Souter

text:
    UNITED STATES v. HILL et ux.
    No. 91-1421.
    Argued November 2, 1992
    Decided January 25, 1993

      Souter, J., delivered the opinion for a unanimous Court.

      Kent L. Jones argued the cause for the United States. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Bruton, Deputy Solicitor General Wallace, Ann Belanger Durney, and Charles Bricken.

      Richard B. Robinson argued the cause for respondents. With him on the brief was Robert A. Wherry, Jr

        Timothy B. Dyk filed a brief for the National Coal Association et al. as amicus curiae urging affirmance.

   Justice Souter

delivered the opinion of the Court.

Under §§56 and 57(a)(8) of the Internal Revenue Code of 1954, 26 U. S. C. §§56, 57(a)(8) (1976 ed.), a taxpayer must pay a “minimum tax” on the excess of the allowable depletion deduction for an interest in a mineral deposit over the taxpayer’s adjusted basis for that interest. The question presented here is whether the term “adjusted basis,” as used in § 57(a)(8), includes certain depreciable drilling and development costs identified in § 1.612-4(c)(l) of the Treasury Department regulations. We hold that the term does not cover such costs.

I

In 1981 and 1982, respondents William F. and Lola E. Hill were in the oil and gas exploration and production business, and, on their federal income tax returns for those respective years, they deducted $439,884 and $371,636 for depletion with respect to their interests in oil and gas deposits. Under 26 U. S. C. § 57(a)(8) (1976 ed.), the excess of the allowable depletion deduction for each of the deposit interests over the interest’s “adjusted basis” is an “ite[m] of tax preference” on which a taxpayer must pay a “minimum tax” for the tax year in question. See § 56(a). In determining the adjusted bases of their deposit interests, the Hills included not only the unrecovered portions of the amounts they originally paid to purchase the interests, but also the unrecovered costs of depreciable tangible items (machinery, tools, pipes, and so forth) used to exploit the deposits. Having thus reduced the amount of each item of tax preference under § 57(a)(8), they calculated and paid minimum taxes on those items of $29,812 for 1981 and $26,736 for 1982.

The Commissioner of Internal Revenue disputed the inclusion of the tangible costs in the deposits’ adjusted bases, and assessed a larger minimum tax based on their exclusion. The Hills paid the resulting respective deficiencies of $30,963 and $18,733, and filed a refund claim, which the Commissioner denied. The taxpayers then sued the United States, petitioner here, for a refund in the Claims Court, which granted summary judgment in their favor. 21 Cl. Ct. 713 (1990). The Court of Appeals for the Federal Circuit affirmed. 945 F. 2d 1529 (1991). Because of the importance of the issue to the federal fisc, we granted certiorari. 503 U. S. 1004 (1992). We now reverse.

1 — 1

An oil and gas producer cannot ordinarily depreciate or otherwise recover (before disposition) his investment in land ' on which he drills wells because the process of producing his taxable income does not wear out or use up the land. See, e. g., Treas. Reg. §1.167(a)-2 (disallowing a depreciation deduction for “land apart from the improvements or physical development added to it”). Part of the purchase price of a fee simple interest in the land, however, represents investment in the right to extract any oil and gas from subsurface deposits, which (unlike the land) are “wasting assets,” gradually depleted as the minerals are removed. An owner of such wasting assets, according to basic income tax theory, should accordingly be allowed a “reasonable allowance for depletion,” 26 U. S. C. § 611(a) (1976 ed.), “to compensate [him] for the part exhausted in production, so that when the minerals are gone, the owner’s capital and his capital assets remain unimpaired.” Paragon Jewel Coal Co. v. Commissioner, 380 U. S. 624, 631 (1965).

To a degree, however, practice and theory have drifted apart. The Code and associated Treasury Department regulations require taxpayers to calculate depletion allowances by whichever of two methods produces the larger deduction for the current taxable year. Treas. Reg. §-1.611 — 1(a)(1); see also 26 U. S. C. § 613(a) (1976 ed.) (“In no case shall the allowance for depletion under section 611 be less than it would be if computed without reference to this section [concerning' percentage depletion]”). The first method, “cost depletion,” remains firmly moored to the rationale articulated in Paragon Jewel. Under that method, the taxpayer estimates the number of recoverable units in his mineral deposit, and deducts an appropriate portion of the deposit’s adjusted basis for each unit extracted and sold. See Treas. Reg. §§ 1.611-2, 1.612-1. When the sum of prior deductions equals the cost or other basis of the deposit, plus allowable capital additions, “[n]o further deductions for cost depletion shall be allowed.” Treas. Reg. § 1.611 — 2(b)(2). The second method, “percentage depletion,” has no such ties. It generously allows the taxpayer extracting minerals from a deposit to deduct a specified percentage of his gross income, even when his prior depletion deductions have exceeded his investment in the deposit. See 26 U. S. C. § 613 (1976 ed. and Supp. V); Treas. Reg. § 1.613-1. For the tax years at issue, percentage depletion produced the larger deduction for the Hills, and they accordingly calculated their depletion allowance according to that method.

For those tax years, however, percentage depletion’s gleam is dimmed by the minimum tax. Section 57(a)(8) of the Code requires a taxpayer to calculate as a “tax preference” “[w]ith respect to each [interest in a mineral deposit], the excess of the deduction for depletion allowable under section 611 for the taxable year over the adjusted basis of the [mineral deposit interest] at the end of the taxable year (determined without regard to the depletion deduction for the taxable year).” In turn, §56 of the Code requires a taxpayer to pay an extra minimum tax of 15% on the amount by which the sum of the enumerated tax-preference items in § 57(a) exceeds the specific deductions permitted by §56. Because the amount subject to the extra tax is reduced dollar for dollar by every outlay that can be added to the adjusted basis of the mineral deposit interest, a taxpayer would like as long a list of eligible outlays as possible.

In this case the dispute is about the inclusion in the adjusted basis of certain tangible drilling and development costs, as defined by the Treasury Regulations implementing §§ 263(c) and 612 of the Code. Section 263(c) grants taxpayers an option to deduct against current income certain “intangible drilling and development costs.” The regulations limit the costs recoverable under that option by distinguishing “intangible costs” from costs for “capital items,” which the parties refer to as “tangible costs”:

“The option with respect to intangible drilling and development costs does not apply to expenditures by which the taxpayer acquires tangible property ordinarily considered as having a salvage value. Examples of such items are the costs of the actual materials in those structures which are constructed in the wells and on the property, and the cost of drilling tools, pipe, casing, tubing, tanks, engines, boilers, machines, etc. . . . These are capital items and are returnable through depreciation.” Treas. Reg. § 1.612-4(c)(l).

It is the cost of such capital items as these, to the extent that they have not already been recovered through depreciation, that the Hills would like to add to the bases of their mineral deposit interests for purposes of calculating the amount of their percentage depletion deductions subject to the minimum tax.

Ill

The taxpayers enter the race with a handicap. As we have noted, see n. 4, supra, § 57(a)(8) defines the “property” with which it is concerned by reference to §614, which speaks in terms of the adjusted basis of “each separate interest owned by the taxpayer in each mineral deposit.” 26 U. S. C. § 614(a) (1976 ed). A regulation defines “mineral deposit” as “minerals in place,” Treas. Reg. § 1.611-l(d)(4), while a neighboring regulation defines another term, “mineral enterprise,” to include “the mineral deposit or deposits and improvements, if any, used in mining or in the production of oil and gas,” Treas. Reg. § 1.611-l(d)(3) (emphasis added). Because these regulatory definitions were well established at the time Congress passed § 57(a)(8), see 25 Fed. Reg. 11796 (1960); Pub. L. 91-172, §301, 83 Stat. 580, 582, we think it reasonable to assume that Congress relied on the accepted distinction between them in its reference to “mineral deposit” as contained in §614. Thus the definitional scheme suggests strongly that the “property” we are concerned with in § 67(a)(8) excludes just those improvements that the Hills wish to treat as part of the property’s adjusted basis.

They assert, however, (and the Government does not dispute) that the term “mineral enterprise” occurs in only that one operative provision in the regulations, Treas. Reg. § 1.611-l(d)(4), which concerns the allocation of a portion of the cost of a mineral enterprise to a mineral deposit or deposits. On that basis, the Hills argue that the term has the limited function of “assisting] in identifying depletable and depreciable costs when an operating mineral property is acquired as a unit.” Brief for Respondents 18, n. 21. Consistently with that view, they note, a regulation implementing § 57(a)(8) directs us to “see section 1016 and the regulations thereunder . . . [f]or the determination of the adjusted basis of the property.” Treas. Reg. § 1.57-l(h)(3). The computation of adjusted basis under 26 U. S. C. § 1016 (1976 ed. and Supp. V), they argue, is independent of the definition and function of “mineral enterprise” in the §611 regulations; thus, the implications of this term’s definition do not extend to the calculation at issue in this case.

We agree that § 1016 is the proper place to look for the rules concerning adjustment of basis; but we conclude that the computation of adjusted basis under §1016 is wholly predicated on, rather than independent of, an understanding of “mineral deposit” as distinct from “improvements” within the meaning of the regulations under §611.

Section 1016 is one of a number of general provisions that together determine the amount of gain or loss a taxpayer must recognize when he sells or otherwise disposes of any type of property. Section 1001(a) provides the basic rule: gain or loss is determined by subtracting “adjusted basis” from “amount realized.” Section 1011(a) defines “adjusted basis” as “basis (determined under section 1012 [or other parts of the Code]), adjusted as provided in section 1016.” Section 1016 provides the rules for making “[adjustments to basis.”

The taxpayers, acknowledging the centrality of §1016, seize on the last phrase of a regulation addressing that section:

“The cost or other basis shall be properly adjusted for any expenditure ... or other item, properly chargeable to capital account, including the cost of improvements and betterments made to the property.” Treas. Reg. § 1.1016-2(a).

The ordinary meanings of the terms “improvements” and “betterments,” the Hills say, include all valuable additions to property that are more than mere repairs; the tangible costs that they have incurred to exploit their mineral deposits increase the value of those deposits, and in any case are specifically referred to in the regulations implementing §611 as “improvements,” see Treas. Reg. § 1.611-5; therefore, those costs should be included in the adjusted basis of the mineral deposit for purposes of § 1016.

The Hills’ chosen passage, however, cannot carry the weight they ask it to bear. The purpose of the phrase “including the cost of improvements and betterments made to the property” in Treas. Reg. § 1.1016 — 2(a) is not to provide guidance in particular cases as to whether, for tax accounting purposes, an expense should be added to the basis of an existing “property,” or treated as a separate “property” of its own. Rather, it is to ensure coordination of §1016 with § 263, the Code section from which the term “improvements and betterments” (which should probably be read as a unit) is borrowed. Section 263(a)(1) provides that an expenditure may not currently be deducted from income if it is “paid out for new buildings or for permanent improvements or better-ments made to increase the value of any property or estate.” 26 U. S. C. § 263(a)(1) (1976 ed. and Supp. V). We have said that “[t]he purpose of § 263 is to reflect the basic principle that a capital expenditure may not be deducted from current income. It serves to prevent a taxpayer from utilizing currently a deduction properly attributable, through amortization, to later tax years when the capital asset becomes income producing.” Commissioner v. Idaho Power Co., 418 U. S. 1, 16 (1974). In turn, inclusion of the term “improvements and betterments” in Treas. Reg. § 1.1016-2(a) ensures the fulfillment of §263’s implicit promise: If a taxpayer cannot deduct an expenditure from current income because it has been deemed an “improvement or betterment” to property, he will be able to recover it later, either through a form of cost recovery such as depreciation or depletion, or upon sale as a deduction from the amount realized.

Thus it is not by deciphering particular terms in the regulations accompanying § 1016 that the question in this case is answered, but by relying on the basic principles embodied in §1016’s directives. For our purposes, the most important mandate is found in § 1016(a)(2), which requires a taxpayer to subtract from his original basis in the property sold or exchanged “not less than the amount allowable [for exhaustion, wear and tear, obsolescence, amortization, and depletion] under this subtitle or prior income tax laws.” In other words, whether or not the taxpayer ever took a depreciation, amortization, or depletion deduction with respect to the item he is selling, he must, for purposes of §1016, determine whether such deductions were allowable with respect to that item, and reduce his basis by at least that allowable amount.

To follow this directive, the taxpayer must determine whether parts of the item sold are subject to different tax treatments, and must treat those parts as different properties for purposes of § 1016. Thus, a taxpayer who bought an apartment building and the land it sits on for a single price must determine how much of that price went to pay for each, and must treat each cost as a separate asset for purposes of § 1016. This is so because the depreciation deduction allowable for the building (if the building is used to produce income) must, upon the sale or exchange of the property, be subtracted from the taxpayer’s basis in the building whether the deduction was taken or not; but there is no subtraction from the land’s basis since no such deduction is allowable for the land. See, e. g., Treas. Reg. § 1.167(a)-5 (requiring an apportionment of basis when a taxpayer has acquired “a combination of depreciable and nondepreciable property for a lump sum, as for example, buildings and land”).

Although the Code and regulations allow some flexibility within such major categories of tax treatment, the boundaries between the major categories are almost completely impassable. When a taxpayer is dealing with associated items falling into two different major categories, he cannot, as a general matter, choose to treat those items as a single property falling into one category or the other; a taxpayer may not, for example, decide to treat some or all of his apartment building as more land. Nor may a taxpayer choose to add “improvement” costs to the basis of whichever item he pleases: some costs, say of a new roof, must be treated as adding to the value of the depreciable building (or as separate depreciable assets), whereas other costs, like that of grading a building site, must be treated as additions to the value of the nondepreciable land. See, e. g., Rev. Rul. 74-265, 1974-1 Cum. Bull. 56 (distinguishing between deprecia-ble and nondepreciable improvements to land).

Depletion and depreciation are two of these major categories of tax treatment. As this Court said almost a half-century ago, “[t]h[e] distinction between depletion and depreciation runs through the basis provisions of the [Internal Revenue Code].” Choate v. Commissioner, 324 U. S. 1, 3 (1945). Thus, the Code’s depreciation allowance “does not apply to natural resources which are subject to the allowance for depletion provided in section 611.” Treas. Reg. §1.167(a)-2. Accordingly, §611 itself carefully appends, to its provision for “a reasonable allowance for depletion” in the case of natural deposits and timber, the qualification “and for depreciation of improvements, according to the peculiar conditions in each case.” 26 U. S. C. § 611(a) (1976 ed.); see Treas.. Reg. §1.611-5(a). To implement this distinction, the regulations under §611, mentioned above, separately define “mineral deposit” as “minerals in place,” Treas. Reg. § 1.611— 1(d)(4), and “mineral enterprise” as including “the mineral deposit or deposits and improvements,” § 1.611-1 (d)(3). The section defining “mineral deposit” then further provides that “[w]hen a mineral enterprise is acquired as a unit, the cost of any interest in the mineral deposit or deposits is that proportion of the total cost of the mineral enterprise which the value of the interest in the deposit or deposits bears to the value of the entire enterprise at the time of its acquisition.” Treas. Reg. § 1.611 — 1(d)(4); see also § 1.611 — 2(g)(2)(vii) (requiring a statement to be attached to the taxpayer’s return showing “[a]n allocation of the cost or value among the mineral property, improvements and the surface of the land for purposes other than mineral production”). These provisions are designed to isolate those portions of the cost of a “mineral enterprise” that are subject to recovery through depletion.

Thus, just as one generally cannot calculate an adjusted basis under §1016 by treating an apartment building as “more land,” one generally cannot treat tangible tools and equipment as “more mineral deposit.” If a mineral deposit and associated equipment are sold together, § 1016 requires the seller to separate them for the purpose of determining his gain or loss on the sale, just as §§ 167 and 611 required him to keep them separate for the purpose of calculating his depreciation and depletion deductions. Since, as the Hills point out, a regulation incorporates the §1016 rule into § 57(a)(8), and since the Hills have identified no exception to this rule, we infer that the Hills’ tangible costs may not be included in the basis of depletable mineral deposits for purposes of calculating the amount of percentage depletion subject to the minimum tax.

IV

Our conclusion is confirmed by the astonishing, circuitously achieved results of reading § 57(a)(8) as the taxpayers urge. A regulation that the Hills do not challenge provides that “[i]n no event shall percentage depletion in excess of cost or other basis of the property be credited to the improvements account or the depreciation reserve account.” Treas. Reg. § 1.611-2(b)(2). The tangible costs at issue here are recorded in these accounts. Thus, under this regulation, a tangible cost is not itself adjusted for the amount of percentage depletion that on the Hills’ theory it would shelter from the minimum tax each year. As a result, the tangible cost would shelter, • over the years the taxpayer owned the capital item it represented, an amount of percentage depletion many times that of the cost itself. For example, a $21,000 capital item, subject to straight-line depreciation over 20 years with a salvage value of $1,000, would add $20,000 to the basis of the mineral deposit the first year, $19,000 the second year, and so on for 20 years. At the end • of the 20th year, the item would be fully depreciated, and the taxpayer’s basis in the item would then remain at $1,000, the salvage value, for as many more years as he continued to own it. Thus, over the first 20 years, the capital item would shelter $210,000, or 10 times its cost, from the minimum tax; beginning in the 21st year, it would shelter $1,000 per year for as long as it remained in the taxpayer’s hands. At a minimum tax rate of 15%, a taxpayer would realize a tax benefit, from his $21,000 investment, of $31,500 over the first 20 years from § 57(a)(8) alone, without regard to the additional tax benefit from ordinary depreciation of the item. It is hard to believe that Congress would enact a minimum tax to limit the benefit that taxpayers could realize from “items of tax preference,” only to define one of those items in a way that would create an even greater proportional tax benefit from investing in tangible items, and to do so in an oblique fashion that, as far as we know, has no precedent in the history of the federal income tax.

V

The Hills contend that two Treasury Department regulations we have not yet discussed foreclose our conclusion. They point first to one of the cost depletion regulations under §612, which, but for its title and one adjective, would independently reinforce our conclusion:

“The basis for cost depletion of mineral or timber property does not include:
“(i) Amounts recoverable through depreciation deductions, through deferred expenses, and through deductions other than depletion, and
“(ii) The residual value of land and improvements at the end of operations.” Treas. Reg. § 1.612 — 1 (b)(1).

This, of course, is exactly the conclusion in the case of percentage depletion that we have reached after a long detour through § 1016. Section 1.612 — 1(b)(1) applies by its terms, however, only to the determination of mineral deposit basis for the purpose of calculating cost depletion; and the title of § 1.612 — 1(b) is “Special rules.” Therefore, reason the Hills, the “general rule” for determining mineral deposit basis under § 1016 must include the items, such as “[ajmounts recoverable through depreciation deductions,” excluded in the “special rule.” But this argument proves too much. If the Hills stuck to their logic, they would have to claim that they could also add “[t]he residual value of land and improvements at the end of operations” to their bases in their mineral deposit interests, an absurdity that they cannot, and do not try to, support. The simple answer is that when an arguable suggestion of the title of one subsection of a regulation is pitted against the entire Code framework for determining basis, the Code wins, and the title is at most an infelicity.

The infelicity is understandable here. The calculation of percentage depletion is unconnected to the concept of basis; the annual percentage depletion deduction is not measured in relation to basis, nor are the cumulative deductions limited by basis. See 26 U. S. C. §613 (1976 ed. and Supp. V). The concepts of basis and percentage depletion meet only in the minimum tax provisions, for the purpose of calculating the item of tax preference in § 57(a)(8). Since § l'.612-l(b)(l) was issued long before the minimum tax was enacted, see 25 Fed. Reg. 11801 (1960); Pub. L. 91-172, §301, 83 Stat. 580, that regulation’s reference to a “special rule” for “cost” depletion cannot have been intended to indicate that some other rule applied to the calculation of basis for percentage depletion. After the minimum tax was enacted, the Treasury Department inserted a regulation about basis for percentage depletion where one would expect it: among the regulations implementing the minimum tax. That regulation, § 1.57-l(h)(3), directs us to § 1016, but unfortunately contains no correlative reference to the regulations under § 612.

Second, the Hills argue that excluding tangible costs from the adjusted basis of their mineral deposit interests would run counter to regulations specifying the inclusion of certain intangible costs. As we have already noted, 26 U. S. C. § 263(c) (1976 ed., Supp. V) grants taxpayers an option to deduct as expenses certain “intangible drilling and development costs.” If a taxpayer chooses instead to capitalize those costs, the regulations require the taxpayer to sort the costs into two bins. Costs “represented by physical property” are recoverable through depreciation, either through adjustments to the bases of pre-existing items to which the costs relate, or through an initial entry in a new .depreciation account. Treas. Reg. § 1.612-4(b)(2). Costs “not represented by physical property” are recoverable through depletion, as adjustments to the bases of the mineral deposit interests to which they relate. § 1.612 — 4(b)(1); see § 1.612-4(d) (if a taxpayer fails to elect to expense intangible costs correctly, “he shall be deemed to have elected to recover such costs through depletion to the extent that they are not represented by physical property, and through depreciation to the extent that they are represented by physical property”). Since these latter costs are added to depletable basis, the taxpayers argue, so should the tangible costs that are excluded altogether from the § 263(c) option. We fail to see the logic of this argument. To the extent that the. regulation allowing intangible costs “not represented by physical property” to be added to a mineral deposit’s basis deviates from general principles of basis allocation, we see no reason why one deviation should force the Government, or this Court, to create another. Nor have the Hills explained why this regulation in fact represents a deviation.

The judgment of the Court of Appeals is

Reversed.

      A11 references to the Internal Revenue Code and related Treasury Regulations are to those that applied during the tax years at issue. The Treasury Regulations are cited as codified in the 1981 and 1982 editions of Title 26 of the Code of Federal Regulations. In the course of enacting the Internal Revenue Code of 1986, Congress redesignated § 57(a)(8) as § 57(a)(1) for taxable years beginning after 1986. See Tax Reform Act of 1986, Pub. L. 99-514, §§ 701(a) and 701(f)(1), 100 Stat. 2333,2343. In October 1992, Congress enacted the Energy Policy Act of 1992, Pub. L. 102-486, 106 Stat. 2776. Section 1915(a) of that Act amends § 57(a)(1) of the Internal Revenue Code and provides that, for taxable years beginning after December 31, 1992, the depletion allowance permitted under §613A(c) of the Code will not be treated as an item of tax preference subject to taxation as alternative minimum taxable income. See n. 3, infra.

       Allowable capital additions include intangible drilling and development costs that are “not represented by physical property,” such as expenditures for clearing ground, draining, road making, surveying, geological work, grading, and the drilling, shooting, and cleaning of wells, to the extent that the taxpayer opts to capitalize these costs rather than deducting them as expenses. Treas. Reg. § 1.612 — 4(b)(1). For further discussion of these costs, see infra, at 563-564.

       The Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248, § 201, 96 Stat. 411, repealed the “minimum tax” for noncorporate taxpayers for tax years beginning after December 31, 1982. See §§ 201(c)(1), 201(e)(1). At the same time, however, the Act also included items of tax preference, such as excess percentage depletion under § 67(a)(8), in the calculation of a taxpayer’s “alternative minimum taxable income.” § 201(a). While the “minimum tax” was simply added to the amount of income tax due under the normal provisions, the “alternative minimum tax” provision, 26 U. S. C. § 55 (1982 ed.), requires the recalculation of a taxpayer’s income under a different set of rules. A tax is then imposed at a graduated rate on the taxpayer’s “alternative minimum taxable income”; if the amount of alternative minimum tax so calculated is greater than the income tax calculated under the ordinary provisions, the taxpayer must pay both the normal tax and the amount by which his alternative minimum tax liability exceeds his ordinary tax liability. Because items of tax preference were added to “alternative minimum taxable income,” the issue in this case continued to be relevant for tax years beginning after December 31, 1982. For the subsequent history of § 57(a)(8), see n. 1, swpra.

       Section 67(a)(8) applies to “each property (as defined in section 614).” Section 614(a) defines “property,” “[f]or the purpose of computing the depletion allowance in the case of mines, wells, and other natural deposits,” as “each separate interest owned by the taxpayer in each mineral deposit in each separate tract or parcel of land.” (The remainder of § 614 provides detailed rules about when a taxpayer may, and sometimes must, combine separate interests and treat them as one “property.”) Section 1.614-l(a) of the Treasury Department regulations makes the definition in §614 applicable “[f]or purposes of subtitle A of the [Internal Revenue] Code.”

       The regulations also foreclose the option with respect to the cost of “labor, fuel, repairs, hauling, supplies, etc., in connection with the operation of the wells and of other facilities on the property for the production of oil or gas.” Treas. Reg. § 1.612-4(c)(2). These costs must be “charged off as expense.” Ibid.

       Section 263(a)(1) has one of the longest lineages of any provision in the Internal Revenue Code. The Revenue Act of 1864 included a provision specifying that “no deduction shall be made for any amount paid out for new buildings, permanent improvements, or betterments, made to increase the value of any property or estate.” § 117, 13 Stat. 282. The wording of this provision remained the same in § 28 of the Revenue Act of 1894, 28 Stat. 553, and in § 2(B) of the Revenue Act of 1913, 38 Stat. 167. The current wording of the provision was adopted in the Revenue Act of 1918. See § 215(b) of the Revenue Act of 1918, 40 Stat. 1069. The language of Treas. Reg. § 1.1016-2(a) apparently originated in a passage in a House Committee Report on the Revenue Act of 1924, discussing the progenitor of 26 U. S. C. § 1016. See H. R. Rep. No. 179, 68th Cong., 1st Sess., 50 (1924) (“Under this provision capital charges, such as improvements and betterments . .. are to be added to the cost of the property in determining the gain or loss from its subsequent sale”). The forerunner to Treas. Reg. § 1.1016-2(a) was issued that same year. See Treas. Regs. 65, Art. 581 (1924).

       After tracing the word “improvement” from the regulations implementing § 611 through the regulations implementing § 1016 to the text of §263, one might hope that §263 itself would provide some insight into whether tangible development costs should be treated as an “improvement” to the mineral deposit, or as a separate property. Two circumstances dash this hope. First, as we said above, the phrase “improvements and betterments,” as used in the § 1016 regulations and in § 263, should probably be read as a single term unrelated to the term “improvements” in §611 and the regulations thereunder. Second, §263 is concerned only with identifying those payments that “serv[e] to create or enhance . . . what is essentially a separate and distinct additional asset.” Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345, 354 (1971). So long as one can say that a payment must either be “creating” a separate asset or “enhancing” one that already exists, one need not, for purposes of § 263, identify which of these is the case. Here, we are presented with precisely that question.

       The directive is phrased “not less than the amount allowable” to account for the case in which a taxpayer has erroneously deducted more than that amount in a prior year. In that case, the taxpayer must reduce the basis by the greater amount actually deducted, to the extent that it resulted “(by reason of the deductions so allowed) in a reduction for any taxable year of [his] taxes.” 26 U. S. C. § 1016(a)(2)(B) (1976 ed.); see § 1016(a)(2)(A).

       For example, a taxpayer may set up a depreciation account for a new furnace separate from that of the account of the building in which it is installed; he may also, under some circumstances, set up a “composite” account which combines the cost of the building with the cost of “improvements,” such as the furnace. See generally Treas. Reg. § 1.167(a)-7 (describing “group,” “classified,” “composite,” and component accounts for depreciable property).

       As we have noted, see n. 7, supra, the word “improvements” carries a different meaning here than it does within the term “improvements or betterments” as used in § 263(a).

       Under § 57(a)(8), percentage depletion is offset by “the adjusted basis of the [mineral deposit interest] at the end of the taxable year." (Emphasis added.) Assuming that the capital item was placed in service at the beginning of a taxable year, by the end of the year the taxpayer’s basis in it would be reduced by the first year’s depreciation. Thus, in our example, the $21,000 capital item would add $20,000 to the taxpayer’s basis in the mineral deposit, for purposes of § 57(a)(8), the first year it was placed in service.

       The taxpayers also cite Internal Revenue Service Technical Advice Memorandum 8314011 (Dec. 22, 1982), which holds that unamortized deferred development expenditures under § 616 of the Code are included in the basis of a mineral deposit for purposes of § 57(a)(8). As respondents acknowledge, the Code specifically provides that such memoranda “may not be used or 'cited as precedent.” 26 U. S. C. §6110(j)(3) (1976 ed.). In any case, § 616 sets up a system for the treatment of development expenditures entirely different from the system at issue here; in particular, § 616(c) specifically mandates that expenses deferred under § 616(b) “shall be taken into account in computing the adjusted basis of the mine or deposit.” Thus, Technical Advice Memorandum 8314011 simply is not relevant to the question presented in this case.


author: Justice Stevens,

text:
    October 5, 1992
    No. 91-1546.
    Slagle v. Terrazas et al.
   Affirmed on appeal from D. C. W. D. Tex.

Justice Stevens,

with whom Justice Blackmun joins,

dissenting.

The Report of the Special Committee of the Fifth Circuit Judicial Council demonstrated that neither corruption nor improper motive affected the District Court’s determination of the boundaries of Senate Districts 19 and 26. Nevertheless, the procedures that were followed in drawing the boundaries of those districts, as established in the order under review, represented such a serious departure from procedures that should be observed in fashioning relief in adversary litigation that I would vacate the judgment of the District Court with instructions to redraw the boundaries of those two Senate Districts after the parties have been given an adequate opportunity to be heard on issues that relate to those two districts.


text:
    No. 91-2038.
    Pope et al. v. Blue et al.
   Affirmed on appeal from D. C. W. D. N. C.

Justice Blackmun would note probable jurisdiction and set case for oral argument.


text:
    No. 91-1862.
    Gantt et al. v. Skelos et al.
   Appeal from D. C. E. D. N. Y. Judgment vacated and case remanded with instructions to dismiss the appeal as moot. United States v. Munsingwear, Inc., 340 U. S. 36 (1950).


text:
    No. 91-1493.
    Georgia v. Carr.
   Sup. Ct. Ga. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Georgia v. McCollum, 505 U. S. 42 (1992).


text:
    No. 91-1593.
    Munoz-Romo v. United States.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed June 24, 1992.


text:
    No. 91-1793.
    Coones v. Federal Deposit Insurance Corporation.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Taylor v. Freeland & Kronz, 503 U. S. 638 (1992).


text:
    No. 91-1925.
    City of Rocklin et al. v. Sierra Lakes Reserve.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Yee v. Escondido, 503 U. S. 519 (1992).


text:
    No. 91-1938.
    Yellow Freight System, Inc. v. United States.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded with directions to dismiss as moot. United States v. Munsingwear, Inc., 340 U. S. 36 (1950).


text:
    No. 91-1988.
    Longo v. United States Postal Service et al.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Burson v. Freeman, 504 U. S. 191 (1992).


text:
    No. 91-7430.
    Jackson v. Illinois.
   Sup. Ct. Ill. Motion of petitioner for leave to proceed in forma pauperis granted. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Morgan v. Illinois, 504 U. S. 719 (1992).


text:
    No. 91-8445.
    Bacigalupo v. California.
   Sup. Ct. Cal. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Stringer v. Black, 503 U. S. 222 (1992).


text:
    No. 91-8584.
    Ponticelli v. Florida.
   Sup. Ct. Fla. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Espinosa v. Florida, 505 U. S. 1079 (1992).


text:
    No. 92-249.
    American Airlines, Inc. v. Wolens et al.
   Sup. Ct. Ill. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992).


text:
    No. 92-5228.
    Hodges v. Florida.
   Sup. Ct. Fla. Motion of petitioner for leave to proceed in forma pauperis granted. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Espinosa v. Florida, 505 U. S. 1079 (1992).


text:
    No. 91-8064.
    Davis v. Ohio.
   Sup. Ct. Ohio. Certiorari dismissed.


text:
    No. 91-8294.
    Allbee v. Maas, Superintendent, Oregon State Penitentiary.
   C. A. 9th Cir. Certiorari dismissed.


text:
    No.-.
    Mason v. United States District Court.
   Motion to direct the Clerk to file petition for writ of certiorari without paying the docket fee and/or without filing an affidavit in support of a motion for leave to proceed in forma pauperis denied.


text:
    No.-.
    Progress Engineering & Consulting Enterprise, Inc. v. Massongill.
   Motion of a nonattorney to direct the Clerk to file petition for writ of certiorari on behalf of a corporation and in forma pauperis denied.


text:
    No.-.
    No.-.
    No.-.
    Stojanowski v. Metropolitan Government of Nashville and Davidson County, Tennessee; Harvill v. Harvill; and Condado Plaza & Casino v. Asociacion de Empleados de Casino de Puerto Rico Conciliation et al.
   Motions to direct the Clerk to file petitions for writs of certiorari out of time denied.


text:
    No.-.
    E. S. v. Illinois.
   Motion for leave to proceed in forma pauperis without an affidavit of indigency executed by petitioner denied.


text:
    No. A-154.
    Thom v. United States et al.
   C. A. 8th Cir. Application for stay, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. A-157.
    Heung-Kong v. Seifert, Warden.
   D. C. C. D. Cal. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-174.
    Smalis v. Court of Common Pleas Bail Agency.
   Application for certificate of probable cause, addressed to Justice White and referred to the Court, denied.


text:
    No. A-212.
    Heung-Kong v. Seifert, Warden.
   C. A. 9th Cir. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. D-1121.
    In re Disbarment of Ragano.
   Frank Ragano, of Tampa, Fla., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on May 18, 1992 [504 U. S. 904], is hereby discharged.


text:
    No. D-1126.
    In re Disbarment of Martin.
   Motion to defer consideration denied. Disbarment entered. [For earlier, order herein, see 504 U. S. 988.]


text:
    No. D-1134.
    In re Disbarment of Kimura.
   Robert Yutaka Kimura, of Honolulu, Haw., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on June 8, 1992 [504 U. S. 970], is hereby discharged.


text:
    No. D-1143.
    In re Disbarment of Byrd.
   Disbarment entered. [For earlier order herein, see 505 U. S. 1217.]


text:
    No. 65,
    Orig.
    Texas v. New Mexico.
   Final Report of the River Master for Accounting Year 1991 received and ordered filed. [For earlier order herein, see, e. g., 504 U. S. 954.]


text:
    No. 105,
    Orig.
    Kansas v. Colorado.
   Motion of the Special Master for award of interim fees and reimbursement of expenses granted, and the Special Master is awarded a total of $244,063.47 to be paid as follows: 40% by Kansas, 40% by Colorado, and 20% by the United States. [For earlier order herein, see, e. g., 502 U. S. 1027.3


text:
    No. 108,
    Orig.
    Nebraska v. Wyoming et al.
   Motion of Wyoming for leave to file a reply brief granted. Exceptions to the Reports of the Special Master are set for oral argument in due course. [For earlier order herein, see, e. g., 504 U. S. 982.]


text:
    No. 111,
    Orig.
    Delaware v. New York.
   Motions of Midwest Securities Trust Co. et al. and Securities Industries Association et al. for leave to file briefs as amici curiae granted. Motion of Delaware for leave to file a brief in reply to briefs of the Texas Group Intervenors granted. Motion of New York for leave to file a reply brief granted. Motion of Massachusetts for leave to file a complaint in intervention granted. Exceptions to the Report of the Special Master are set for oral argument in due course. [For earlier order herein, see, e. g., 504 U. S. 939.]


text:
    No. 119,
    Orig.
    Connecticut et al. v. New Hampshire.
   Answer of New Hampshire to the complaint of the utility interve-nors referred to the Special Master.

Justice Souter took no part in the consideration or decision of this order.

[For earlier order herein, see, e. g., 505 U. S. 1202.]


text:
    No. 90-114.
    Consolidation Coal Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, et al.,
   501 U. S. 680. Motion of respondent Albert C. Dayton for award of attorney’s fees denied without prejudice to refiling in the United States Court of Appeals for the Fourth Circuit.

Justice Kennedy took no part in the consideration or decision of this motion.


text:
    No. 91-155.
    No. 91-339.
    International Society for Krishna Consciousness, Inc., et al. v. Lee, Superintendent of Port Authority Police, Lee, Superintendent of Port Authority Police v. International Society for Krishna Consciousness, Inc., et al.,
   505 U. S. 672; and

505 U. S. 830. Motion of Walter Lee to retax costs denied.


text:
    No. 91-261.
    No. 91-274.
    Building & Construction Trades Council of the Metropolitan District v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., et al.; and Massachusetts Water Resources Authority et al. v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., et al.
   C. A. 1st Cir. [Certiorari granted, 504 U. S. 908.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 91-1353.
    Conroy v. Aniskoff et al.
   Sup. Jud. Ct. Me. [Certiorari granted, 505 U. S. 1203.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 91-1496.
    Reiter et al. v. Cooper, Trustee for Carolina Motor Express, Inc., et al.
   C. A. 4th Cir. [Certiorari granted, 504 U. S. 907.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 91-1600.
    Hazen Paper Co. et al. v. Biggins.
   C. A. 1st Cir. [Certiorari granted, 505 U. S. 1203.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 91-1958.
    Helling et al. v. McKinney.
   C. A. 9th Cir. [Certiorari granted, 505 U. S. 1218.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 91-5397.
    Negonsott v. Samuels, Warden, et al.
   C. A. 10th Cir. [Certiorari granted, 505 U. S. 1218.] Motion of the Solicitor General for leave to participate in oral argument as ami-cus curiae and for divided argument granted.


text:
    No. 91-7358.
    Brecht v. Abrahamson, Superintendent, Dodge Correctional Institution.
   C. A. 7th Cir. [Certiorari granted, 504 U. S. 972.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 91-522.
    Saudi Arabia et al. v. Nelson et ux.
   C. A. 11th Cir. [Certiorari granted, 504 U. S. 972.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motions of Human Rights Watch and International Human Rights Law Group et al. for leave to file briefs as amici curiae granted.


text:
    No. 91-538.
    Forsyth County, Georgia v. Nationalist Movement,
   505 U. S. 123. Motion of petitioner to permit late filing or response to motion for attorney’s fees granted. Motion of respondent for attorney’s fees denied.


text:
    No. 91-610.
    Local 144 Nursing Home Pension Fund et al. v. Demisay et al.
   C. A. 2d Cir. [Certiorari granted, 505 U. S. 1203.] Motion of petitioners to substitute Frank Russo et al., Trustees of the Local 144 Nursing Home Pension Fund and New York City Nursing Home — Local 144 Welfare Fund, in place of Peter Ottley,, deceased, and John Kelley et al. granted. Motions of Western Conference of Teamsters Pension Trust Fund, National Coordinating Committee for Multiemployer Plans, and Central States, Southeast and Southwest Areas Health and Welfare Pension Funds et al. for leave to file briefs as amici curiae, granted.


text:
    No. 91-687.
    Montana v. Imlay.
   Sup. Ct. Mont. [Certiorari granted, 503 U. S. 905.] Motion of respondent for leave to proceed further herein in forma pauperis granted. Motion for appointment of counsel nunc pro tunc granted, and it is ordered that Billy B. Miller, Esq., of Great Falls, Mont., be appointed to serve as counsel for respondent in this case. Motion of petitioner to strike supplemental brief of respondent denied.


text:
    No. 91-790.
    No. 91-1206.
    CSX Transportation, Inc. v. Easterwood; and Easterwood v. CSX Transportation, Inc.
   C. A. 11th Cir. [Certiorari granted, 505 U. S. 1217.] Motion of respondent/cross-petitioner to permit Tambra Pannell Colston, Esq., to present oral argument pro hac vice granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.

Justice Blackmun would deny this motion.


text:
    No. 91-794.
    Harper et al. v. Virginia Department of Taxation.
   Sup. Ct. Va. [Certiorari granted, 504 U. S. 907.] Motion of Tax Executives Institute, Inc., for leave to file a brief as amicus curiae denied.


text:
    No. 91-904.
    Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California.
   C. A. 9th Cir. [Certiorari granted, 504 U. S. 940.] Motion of Pension Benefit Guaranty Corporation for leave to participate in oral argument as amicus curiae and for divided argument granted. Motions of National Coordinating Committee for Multiemployer Plans and Central States, Southeast and Southwest Areas Pension Fund for leave to file briefs as amici curiae granted.


text:
    No. 91-1160.
    Arave, Warden v. Creech.
   C. A. -9th Cir. [Certiorari granted, 504 U. S. 984.] Motion for appointment of counsel granted, and it is ordered that Cliff Gardner, Esq., of San Francisco, Cal., be appointed to serve as counsel for respondent in this case.


text:
    No. 91-1188.
    Rowland, Former Director, California Department of Corrections, et al. v. California Men’s Colony, Unit II Men’s Advisory Council.
   C. A. 9th Cir. [Certiorari granted, 503 U. S. 905.] Motion of respondent to direct the Clerk to print respondent’s supplemental brief granted.


text:
    No. 91-1300.
    United States v. Dunnigan.
   C. A. 4th Cir. [Certiorari granted, 504 U. S. 940.] Motion of respondent for leave to proceed further herein in forma pauperis granted. Motion for appointment of counsel granted, and it is ordered that Brent E. Beveridge, Esq., of Fairmont, W. Va., be appointed to serve as counsel for respondent in this case.


text:
    No. 91-1306.
    United States v. Olano et al.
   C. A. 9th Cir. [Certiorari granted, 504 U. S. 908.] Motion for appointment of counsel granted, and it is ordered that Carter G. Phillips, Esq., of Washington, D. C., be appointed to serve as counsel for respondent Guy W. Olano, Jr., in this case. Motion of the Solicitor General to permit William K. Kelley, Esq., to present oral argument pro hac vice granted.


text:
    No. 91-1526.
    Alexander v. United States.
   C. A. 8th Cir. [Certiorari granted, 505 U. S. 1217.] Motion of petitioner for leave to enlarge questions presented for review denied.


text:
    No. 91-1618.
    Voinovich, Governor of Ohio, et al. v. Quilter, Speaker Pro Tempore of Ohio House of Representatives, et al.
   D. C. N. D. Ohio. [Probable jurisdiction noted, 504 U. S. 954.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of the Solicitor General to permit Thomas G. Hungar, Esq., to present oral argument pro hac vice granted.


text:
    No. 91-1950.
    No. 91-1970.
    No. 91-1992.
    No. 92-97.
    American Dredging Co. v. Miller. Kalitta Flying Service, Inc., et al. v. G. S. Rasmussen & Associates, Inc. Figures et al. v. Hunt, Governor of Alabama, et al. Northwest Airlines, Inc., et al. v. County of Kent, Michigan, et al.
   Sup. Ct. La.;

C. A. 9th Cir.;

Appeal from D. C. S. D. Ala.; and

C. A. 6th Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 91-7328.
    Herrera v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. [Certiorari granted, 502 U. S. 1085.] Motion for appointment of counsel nunc pro tunc granted, and it is ordered that Mark Olive, Esq., of Tallahassee, Fla., be appointed to serve as counsel for petitioner in this case.


text:
    No. 91-7742.
    Huffsmith v. Wyoming County Prison Board et al.
   C. A. 3d Cir. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [504 U. S. 907] denied.


text:
    No. 91-7758.
    In re Landes.
   Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [504 U. S. 971] denied.


text:
    No. 91-8013.
    Clampitt v. Interinsurance Exchange et al.
   Ct. App. Cal, 2d App. Dist. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [504 U. S. 971] denied.


text:
    No. 91-8173.
    Martin v. Delaware.
   Sup. Ct. Del. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [505 U. S. 1203] denied.


text:
    No. 91-7804.
    Bufferd v. Commissioner of Internal Revenue.
   C. A. 2d Cir. [Certiorari granted, 505 U. S. 1203.] Motion for appointment of counsel granted, and it is ordered that Stuart Jay Filler, Esq., of Bridgeport, Conn., be appointed to serve as counsel for petitioner in this case.


text:
    No. 91-8258.
    No. 91-8729.
    No. 92-5068.
    No. 92-5105.
    No. 92-5407.
    No. 92-5417.
    Martin v. Delaware. Dempsey v. Sears, Roebuck & Co. et al. Martin v. Sparks et al. Jones v. Wright, Judge, United States District Court for the Western District of Missouri, et al. Martin v. Smith et al. Brigman v. United States.
   Sup. Ct. Del.;

C. A. 1st Cir.;

C. A. 3d Cir.;

C. A. 8th Cir.;

C. A. 3d Cir.; and

C. A. 5th Cir. Motions of petitioners for leave to proceed in forma pauperis denied. See this Court’s Rule 39.8. Petitioners are allowed until October 26, 1992, within which to pay the docketing fee required by Rule 38(a) and to submit petitions in compliance with Rule 33 of the Rules of this Court.

Justice Blackmun and Justice Stevens would deny the petitions for writs of certiorari.


text:
    No. 91-8428.
    In re Jones.
   Motion of petitioner for leave to proceed in forma pauperis denied. See this Court’s Rule 39.8. Petitioner is allowed until October 26, 1992, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Blackmun and Justice Stevens would deny the petition for writ of mandamus and/or prohibition.


text:
    No. 91-8492.
    Sampang v. United States.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until October 26, 1992, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), I would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


author: Justice Blackmun and Justice Stevens,

text:
    No. 91-8579.
    No. 91-8581.
    No. 91-8773.
    Medina v. Kansas. McDonald v. Yellow Cab Metro, Inc. Quinn v. Feltham et al. Oyegbola v. United States. Schultz et ux. v. Parr Elevator, Inc. Carver v. Carver et al.
   Ct. App. Kan.;

Sup. Ct. Tenn.;

C. A. 2d Cir.;

No. 92-5047.

No. 92-5205.

No. 92-5384.

C. A. 1st Cir.;

C. A. 7th Cir.; and

C. A. 11th Cir. Motions of petitioners for leave to proceed informa pauperis denied. Petitioners are allowed until October 26, 1992, within which to pay the docketing fee required by Rule 38(a) and to submit petitions in compliance with Rule 33 of the Rules of this Court.

Justice Blackmun and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petitions for writs of certiorari without reaching the merits of the motions to proceed in forma pauperis.


text:
    No. 92-74.
    Department of Revenue of Oregon v. ACF Industries, Inc., et al.
   C. A. 9th Cir. Motion of Multistate Tax Commission for leave to file a brief as amicus curiae granted. Motion of Multistate Tax Commission for leave to file an amended brief as amicus curiae granted.


text:
    No. 92-402.
    Nichols et al. v. Romberg et ux.
   C. A. 9th Cir. Motion of respondents for leave to participate in oral argument in No. 91-990, Farrar et al., Coadministrators of Estate of Farrar, Deceased v. Hobby [certiorari granted, 502 U. S. 1090], and for expedited consideration of this petition with that case denied.


text:
    No. 92-5282.
    In re Fowler.
   Motion of petitioner for leave to proceed informa pauperis denied. Petitioner is allowed until October 26, 1992, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.


text:
    No. 92-5688.
    In re Kaltenbach.
   Motion of petitioner for leave to proceed in forma pauperis denied. See this Court’s Rule 39.8. Petitioner is allowed until October 26, 1992, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Blackmun and Justice Stevens would deny the petition for writ of habeas corpus.