1. In calculating net income for taxation a deduction from gross
income is allowable only if there is clear statutory provision
therefor. P.
308 U. S.
493.
2. In determining what are "ordinary and necessary" expenses of
a taxpayer's "trade or business," within the meaning of § 23(a)
under the Revenue Act of 1928, resort is had to the popular or
received import of those words. P.
308 U. S.
493.
3. An ordinary expense is one that is normal, usual or
customary; a transaction that gives rise to it must be of common or
regular occurrence in the type of business involved. P.
308 U. S.
495.
4. The fact that an expense would be an ordinary and common one
in the course of one business does not necessarily make it such in
connection with another business. P.
308 U. S.
495.
5. Carrying charges on short sales of stock made by a
stockholder to assist his corporation and preserve his investment
in it cannot be deducted as ordinary and necessary expenses of his
business where it does not appear that he was in the business of
trading in securities, or that stockholders, engaged in conserving
and enhancing their estates, ordinarily assist their corporations
in similar fashion. Pp.
308 U. S. 493
et seq.
6. In order to aid a plan of his corporation to increase the
efficiency of its management by selling some of its stock to
executive employees -- the corporation not being able legally to
sell directly -- and to the end that, by the plan, his beneficial
interest in the corporation might be conserved and enhanced, a
stockholder made short sales to the executives (the corporation
lending them the price) and borrowed the shares requisite to
fulfill his contracts; when the borrowing period was up, he
restored equivalent shares to the lender by borrowing them
elsewhere under a contract which in time obliged him to pay to the
second lender (a) a sum equal to dividends received by him on the
borrowed shares, and (b) a sum equal to the lender's income tax on
such payments. Assuming that the activities of the stockholder in
conserving and enhancing his estate constitute a "trade" or
"business" within the meaning of § 23(a) of the Revenue Act of
1928,
held:
Page 308 U. S. 489
(1) That these expenditures were not deducible in computing the
stockholder's income, because they proximately resulted not from
the taxpayer's business, but from the business of the corporation,
and because they were neither "ordinary" nor "necessary" expenses
of his business within the meaning of § 23(a). Pp.
308 U. S. 494
et seq.
(2) Such expenditures were not deductible as "interest paid or
accrued . . . on indebtedness" under subsection 23(b) of the Act.
P.
308 U. S.
497.
7. Although an indebtedness is an obligation, an obligation is
not necessarily an "indebtedness" within the meaning of § 23(b).
Interest in its usual import is the amount which one has contracted
to pay for the use of borrowed money. In the business world,
interest on indebtedness means compensation for the use or
forbearance of money. It is assumed that Congress has used the word
in that sense. P.
308 U. S.
497.
103 F.2d 257 reversed;
22 F. Supp.
589 affirmed.
Certiorari,
post, p. 533, to review the reversal of a
judgment of the District Court rendered against the present
respondent in his action to recover money collected as income
taxes.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case presents the question of whether respondent, in
computing his taxable net income for the year 1931, may deduct
payments of $647,711.56 made by him in that year to the Delaware
Realty and Investment Co. (hereinafter called the Delaware
Company). The deduction is sought either under § 23(a) of the
Revenue Act of 1928, 45 Stat. 791, as "ordinary and necessary
expenses paid
Page 308 U. S. 490
or incurred during the taxable year in carrying on" the "trade
or business" of respondent, or under § 23(b) as "interest paid or
accrued within the taxable year on indebtedness." The Commissioner
disallowed the deduction and determined a deficiency, which
respondent paid and now seeks to recover. It is agreed that, if the
deduction is allowed, respondent is entitled to judgment for
$172,351.64. The judgment of the District Court against respondent,
22 F. Supp.
589, was reversed by the Circuit Court of Appeals. 103 F.2d
257. We granted certiorari because of the asserted inconsistency of
that ruling with
Welch v. Helvering, 290 U.
S. 111, which construed the meaning of the words
"ordinary and necessary expenses;" and with
Burnet v.
Clark, 287 U. S. 410,
which limited such deductions to losses directly connected with the
taxpayer's business.
Respondent's claim to the deduction arose out of the following
transactions, briefly summarized. Respondent was beneficial owner
of about 16% of the stock of E. I. du Pont de Nemours and Company
(hereinafter called the du Pont Company). In 1919, the du Pont
Company constituted a new executive committee composed of nine
young men. For business reasons, it thought it desirable that these
men have a financial interest in the company. Alleged legal
difficulties stood in the way of the du Pont Company's selling them
the 9,000 shares desired. [
Footnote
1] Accordingly, respondent undertook to sell them 1,000 shares
each.
Page 308 U. S. 491
But, since he did not have readily available that amount from
his own holdings, [
Footnote 2]
he borrowed 9,000 shares of the du Pont Company from Christiana
Securities Company, [
Footnote
3] under an agreement whereby he agreed to return the stock
loaned in kind within ten years and, in the interim, to pay to the
lender all dividends declared and paid on the shares so loaned.
[
Footnote 4] Respondent
thereupon sold the shares to the nine executives, the purchase
price being furnished by the du Pont Company. [
Footnote 5] In October, 1929, when the
ten-year
Page 308 U. S. 492
period was about to expire, respondent did not have available
the number of shares which he was obligated to return to Christiana
Securities Company. [
Footnote
6] Therefore, he arranged for a loan from the Delaware Company
of the number of shares necessary to discharge that obligation.
[
Footnote 7] Under a contract
with that company, respondent agreed to return in kind the number
of shares loaned (plus any increase by stock dividend or otherwise)
within ten years; to pay to the Delaware Company an amount
equivalent to all dividends declared and paid on the borrowed
shares until returned, and to reimburse the Delaware Company for
all taxes accruing against it by reason of the agreement.
Pursuant to that agreement respondent paid the Delaware Company,
in 1931, the sum of $567,648, being an amount equivalent to the
dividends received by him during that period from the du Pont
Company on the borrowed shares, and the sum of $80,063.56, being
the amount of the federal income tax imposed upon the lender by
reason of the foregoing payments which it had received from
respondent. These are the expenditures claimed as a deduction in
the present suit.
The District Court concluded, on the basis of respondent's large
and diversified investment holdings and his
Page 308 U. S. 493
wide financial and business interests, that his business was
primarily that of conserving and enhancing his estate. The
petitioners challenge that conclusion, asserting that respondent's
activities in connection with conserving and enhancing his estate
did not constitute a "trade or business" within the meaning of §
23(a) of the Act.
But, as we view the case, it is unnecessary for us to pass on
that contention and to make the delicate dissection of
administrative practice which that would entail. For we are of the
opinion that the deductions are not permitted either within the
rule of
Burnet v. Clark or
Welch v. Helvering,
supra, even though we were to assume that the activities of
respondent constituted a business, as found by the District
Court.
There is no intimation in the record that the transactions
whereby the stock was borrowed were not in good faith or were
entered into for any reason except a
bona fide business
purpose. Nor is there any suggestion that the transactions were
cast in that form for purposes of tax avoidance. And it is true
that, as respects the dividends received by respondent and paid
over to the Delaware Company, he was little more than a conduit.
But allowance of deductions from gross income does not turn on
general equitable considerations. It "depends upon legislative
grace, and only as there is clear provision therefor can any
particular deduction be allowed."
New Colonial Ice Co., Inc. v.
Helvering, 292 U. S. 435,
292 U. S. 440.
And when it comes to construction of the statutory provision under
which the deduction is sought, the general rule that "popular or
received import of words furnishes the general rule for the
interpretation of public laws,"
Maillard
v.Lawrence, 16 How. 251,
57 U. S.
261.
By those standards the claimed deduction falls for two reasons.
In the first place, the payments in question do not meet the test
enunciated in
Kornhauser v.
United
Page 308 U. S. 494
States, 276 U. S. 145,
since they proximately result not from the taxpayer's business, but
from the business of the du Pont Company. The original transactions
had their origin in an effort by that company to increase the
efficiency of its management by selling its stock to certain of its
key executives. The respondent undertook to furnish the necessary
stock only after the company had been advised that it could not
legally do so. In that posture of the case, these payments are no
more deductible than were the payments made by the stockholder in
Burnet v. Clark, supra, as a result of his endorsements of
the obligations of his corporation. Those payments were disallowed
as deductions from his gross income though they arose out of
transactions which were intended to preserve his investment in the
corporation. Similar payments were disallowed in
Dalton v.
Bowers, 287 U. S. 404.
Hence, the fact that the transaction out of which the carrying
charges here in question arose might benefit respondent does not
bring it within the ambit of his alleged business of conserving and
enhancing his estate. The well established decisions of this Court
do not permit any such blending of the corporation's business with
the business of its stockholders. Accordingly, the payments made
under the 1919 agreement would certainly not be deductible. And the
fact that a new and different arrangement was made in 1929 with the
Delaware Company does not alter the conclusion, for it is the
origin of the liability out of which the expense accrues which is
material. Otherwise, carrying charges on any short sale, whether or
not related to the business of the taxpayer, would be allowable as
deductible expenses. That cannot be, if the notion of proximate
result implicit in the statutory words "expenses paid or incurred .
. . in carrying on any trade or business" is to have any
vitality.
In the second place, these payments were not "ordinary" ones for
the conduct of the kind of business in which, we
Page 308 U. S. 495
assume
arguendo, respondent was engaged. The District
Court held that they were "beyond the norm of general and accepted
business practice," and were, in fact, "so extraordinary as to
occur in the lives of ordinary business men not at all," and in the
life of the respondent "but once." [
Footnote 8] Certainly there are no norms of conduct to
which we have been referred or of which we are cognizant which
would bring these payments within the meaning of ordinary expenses
for conserving and enhancing an estate. We do not doubt the
correctness of the District Court's finding that respondent
embarked on this program to the end that his beneficial stock
ownership in the du Pont Company might be conserved and enhanced.
But that does not make the cost to him an "ordinary" expense within
the meaning of the Act. Ordinary has the connotation of normal,
usual, or customary. To be sure, an expense may be ordinary though
it happen but once in the taxpayer's lifetime.
Cf. Kornhauser
v. United States, supra. Yet the transaction which gives rise
to it must be of common or frequent occurrence in the type of
business involved.
Welch v. Helvering, supra, 290 U. S. 114.
Hence, the fact that a particular expense would be an ordinary or
common one in the course of one business, and so deductible under §
23(a), does not necessarily make it such in connection with another
business. Thus, it has been held that one who was an active trader
in securities might take as deductions carrying charges on short
sales, since selling short was common in that business. [
Footnote 9] But the carrying charges on
respondent's short sale in this
Page 308 U. S. 496
case cannot be accorded the same privilege under § 23(a). The
record does not show that respondent was in the business of trading
in securities. Nor does it show that a stockholder engaged in
conserving and enhancing his estate ordinarily makes short sales or
similarly assists his corporation in financing stock purchase plans
for the benefit of its executives. As stated in
Welch v.
Helvering, supra, pp.
290 U. S. 113-114:
". . . What is ordinary, though there must always be a strain of
constancy within it, is none the less a variable affected by time
and place and circumstance."
One of the extremely relevant circumstances is the nature and
scope of the particular business out of which the expense in
question accrued. The fact that an obligation to pay has arisen is
not sufficient. It is the kind of transaction out of which the
obligation arose and its normalcy in the particular business which
are crucial and controlling.
Review of the many decided cases is of little aid, since each
turns on its special facts. But the principle is clear. And, on
application of that principle to these facts, it seems evident that
the payments in question cannot be placed in the category of those
items of expense which a conservator of an estate, a custodian of a
portfolio, a supervisor of a group of investments, a manager of
wide financial and business interests, or a substantial stockholder
in a corporation engaged in conserving and enhancing his estate
would ordinarily incur. We cannot assume that they are embraced
within the normal overhead or operating costs of such activities.
There is no evidence that stockholders or investors, in furtherance
of enhancing and conserving their estates, ordinarily or frequently
lend such assistance to employee stock purchase plans of their
corporations. And, in absence of such evidence, there is no basis
for an assumption, in experience or common knowledge, that these
payments are to be placed in the same category as typically
ordinary expenses of such activities
Page 308 U. S. 497
--
e.g., rental of safe deposit boxes, cost of
investment counsel or of investment services, salaries of
secretaries, and the like. Rather, these payments seem to us to
represent most extraordinary expenses for that type of activity.
Therefore, the claim for deduction falls, as did the claim of an
officer of a corporation who paid its debts to strengthen his own
standing and credit.
Welch v. Helvering, supra. And the
fact that the payments might have been necessary in the sense that
consummation of the transaction with the Delaware Company was
beneficial to respondent's estate is of no aid. For Congress has
not decreed that all necessary expenses may be deducted. Though
plainly necessary, they cannot be allowed unless they are also
ordinary.
Welch v. Helvering, supra.
We conclude, then, on this phase of the case that, as the
District Court, on a correct interpretation of the Act, found that
these payments did not proximately result from, and were not
ordinary expenses for the conduct of, respondent's alleged
business, it was error for the Circuit Court of Appeals to reverse
the judgment for petitioners.
McCaughn v. Real Estate Land
Title & Trust Co., 297 U. S. 606.
There remains respondent's contention that these payments are
deductible under § 23(b) as "interest paid or accrued . . . on
indebtedness." Clearly, respondent owed an obligation to the
Delaware Company. But although an indebtedness is an obligation, an
obligation is not necessarily an "indebtedness" within the meaning
of § 23(b). Nor are all carrying charges "interest." In
Old
Colony R. Co. v. Commissioner, 284 U.
S. 552, this Court had before it the meaning of the word
"interest" as used in the comparable provision of the 1921 Act, 42
Stat. 227. It said, p.
284 U. S. 560,
" . . . as respects
interest,' the usual import of the term is
the amount which one has contracted to pay for the use of borrowed
money."
Page 308 U. S.
498
It there rejected the contention that it meant "effective
interest" within the theory of accounting, or that "Congress used
the word having in mind any concept other than the usual, ordinary,
and everyday meaning of the term." P. 284 U. S. 561.
It refused to assume that the Congress used the term with reference
to "some esoteric concept derived from subtle and theoretic
analysis." P. 284 U. S.
561.
We likewise refuse to make that assumption here. It is not
enough, as urged by respondent, that "interest" or "indebtedness"
in their original classical context may have permitted this broader
meaning. [
Footnote 10] We
are dealing with the context of a revenue act and words which have
today a well known meaning. In the business world, "interest on
indebtedness" means compensation for the use or forbearance of
money. [
Footnote 11] In
absence of clear evidence to the contrary, we assume that Congress
has used these words in that sense. In sum, we cannot sacrifice the
"plain, obvious and rational meaning" of the statute even for "the
exigency of a hard case."
See Lynch v. Alworth-Stephens
Co., 267 U. S. 364,
267 U. S.
370.
Petitioners throughout have referred to these payments by
respondent as being capital in nature.
Cf. Bonwit Teller &
Co. v. Commissioner, 53 F.2d 381;
Hutton v.
Commissioner, 39 F.2d 459;
Bing v. Helvering, 76 F.2d
941. What appropriate treatment may be accorded
Page 308 U. S. 499
these items of cost under other provisions of the Act we do not
undertake to say, as that issue is not here.
The judgment of the Circuit Court of Appeals is reversed, and
that of the District Court is affirmed.
Reversed.
[
Footnote 1]
As stated by the District Court, counsel advised that the du
Pont Company could issue stock only for money paid, labor
performed, or real or personal property acquired, and that, if the
stock were to be issued for cash, it must first be offered to
existing stockholders. According to the findings, the du Pont
Company did not have 9,000 shares of its stock, other that unissued
stock; that stock was not then listed on the New York Stock
Exchange, and the over-the-counter market was quite inactive. Nine
thousand shares could not have been purchased on this market
without substantially raising the price per share.
[
Footnote 2]
Respondent had available only 74 shares. He had a reversionary
interest in two trusts which held 24,000 shares. And he was the
owner of 29,125 shares of common stock of Christiana Securities
Company out of a total of 75,000 shares issued and outstanding.
That company was then the owner of 183,000 shares of common stock
of the du Pont Company out of a total of 588,542 shares issued and
outstanding.
[
Footnote 3]
Supra, note 2
[
Footnote 4]
As security, respondent gave Christiana Securities Company 3,800
shares of its capital stock. All dividends on that stock were to be
paid to respondent.
[
Footnote 5]
These sales were made at the price of $320 a share, that being
approximately their book value. The du Pont Company loaned to each
of the nine executives the necessary funds to purchase his 1,000
shares. They paid respondent.$2,880,000 in cash for the 9,000
shares. According to respondent's brief, he turned over this sum
through transactions in General Motors stock which ultimately
yielded him a great profit.
See du Pont v. Commissioner,
37 B.T.A. 1198.
By March, 1921, the stock of the du Pont Company had declined in
value, and the bargain made by the executives had become a
disadvantageous one. Respondent thereupon offered to turn over 400
shares of the Christiana Securities Company (of a net value of
$160,000) to be held by the du Pont Company as additional
collateral on the loan made to these executives, respondent to have
the right to redeem those 400 shares by payment of $160,000 on
maturity of the loan, that payment, if made, to be applied to the
loan. If respondent failed to redeem those shares, they were to
become the property of the executives on payment of their loans.
Meanwhile, dividends on the 400 shares up to $8,000 per annum were
to go to the executives, the balance to respondent, who was,
however, to return his portion to the executives if he did not
redeem the stock. This offer was accepted by the executives.
Respondent, when he proposed it, stated that he did so "as a large
stockholder, and perhaps, the one to be most benefited by the
recovery in value of the Company's shares." He also stated that he
wanted the executives to be "free of worry over the unexpected
outcome" of the stock purchase plan.
[
Footnote 6]
Due to stock dividends and split-ups, respondent was obligated
to return to Christiana Securities Company 142,212 shares to
replace the 9,000 shares which he had borrowed.
[
Footnote 7]
Respondent was not a stockholder of the Delaware Company,
although it appears that his brother was one of its executive
officers.
[
Footnote 8]
22 F. Supp.
589, 597.
[
Footnote 9]
Dart v. Commissioner, 74 F.2d 845.
Cf. Terbell
v. Commissioner, 29 B.T.A. 44,
aff'd, 71 F.2d 1017, where
such carrying charges were disallowed as deductions. The Board of
Tax Appeals said, 29 B.T.A. at 45,
"We have only the stipulated facts, and there is no suggestion
in those facts that the decedent was engaged in the business of
making short sales or in dealing in securities generally."
[
Footnote 10]
Respondent refers to the
mutuum in Roman law. Ledlie's
Sohm's Institutes of Roman Law, 2d Ed., p. 395; Hare, The Law of
Contracts, p. 73.
[
Footnote 11]
This makes irrelevant other lines of authority cited by
respondent where "interest" in a different context has been used to
describe damages or compensation for the detention or use of money
or of property.
See United States v. North Carolina,
136 U. S. 211,
136 U. S. 216;
N.Y. General Business Law, Consol.Laws, c. 20, § 370, which
provides,
"The rate of interest upon the loan or forbearance of any money,
goods, or things, in action . . . shall be six dollars upon one
hundred dollars, for one year. . . ."
MR. JUSTICE FRANKFURTER, concurring.
What the activities of a tax payer are is an issue for
determination by triers of fact. Whether such activities constitute
a "trade or business" as conceived by § 23(a) of the Revenue Act of
1928, 45 Stat. 791, 799, is open for determination here unfettered
by findings and rulings below except for the weight of the
intrinsic authority of all lower court opinions. To avail of the
deductions allowed by § 23(a), it is not enough to incur expenses
in the active concern over one's own financial interest. " . . .
[C]arrying on any trade or business," within the contemplation of §
23(a), involves holding one's self out to others as engaged in the
selling of goods or services. This the taxpayer did not do.
Expenses for transactions not connected with trade or business,
such as an expense for handling personal investments, are not
deductible. It is otherwise with losses. § 23(e)(2). Without
elaborating the reasons for this construction, and not unmindful of
opposing considerations, including appropriate regard for
administrative practice, I prefer to make the conclusion explicit,
instead of making the hypothetical, litigation-breeding assumption
that this taxpayer's activities, for which expenses were sought to
be deducted, did constitute a "trade or business."
MR. JUSTICE REED joins in these views.
MR. JUSTICE ROBERTS, dissenting.
I feel constrained to state my views not because this case
raises any important issue of law which should be
Page 308 U. S. 500
settled by this Court, but, on the contrary, because I think it
presents a question the answer to which depends solely upon the
facts disclosed by the record. Decision of the controversy cannot
be helpful in the administration of the Revenue Acts or set any
important precedent. I think the writ should not have been granted,
and that it now should be dismissed as improvidently granted. The
amount of taxes involved or the insistence of the Government that
the court below erred in its application of the law to the facts
are not adequate reasons for review. There is no dispute as to
principle, and no conflict with any case in the application of any
principle.
The function of this Court is to resolve conflicts of decision
and to settle important principles of law. The discretionary power
of this Court to review judgments of lower federal courts was not
intended to be exercised in every case where those courts have
adjudicated the conflicting claims of the parties, which involves
no important principle of law and no conflict of decision amongst
the federal courts. Our rules adopted to carry out the policy of
the statutes granting the power to bring cases here by certiorari
have apprised the Bar and the public that we will not take cases
fully heard and adjudicated below for the mere purpose of
reexamining the correctness of the result. (
See Rule 38,
par. 5.)
The dominant purpose evidenced by the income tax statutes is to
tax net income. The policy is to credit against gross income the
expenses of the business which begets earnings. The taxpayer is
entitled to deduct that which he reasonably and in good faith
expended in the effort to realize a profit. The revenue acts have
always characterized deductible expenses as the ordinary and
necessary expenses of the business, incurred and paid during the
taxable year. The opinion assumes that the expenditure here in
question was necessary in the conduct of the taxpayer's business,
but holds that it was not an
Page 308 U. S. 501
ordinary expense of that business. Obviously what is an ordinary
expense of a given business must depend upon the nature and scope
of the business, the nature and occasion of the expenditure, and
other considerations which will emerge in each specific case.
Necessarily, the decision of one case will have slight, if any,
bearing upon the proper decision of another. If this Court is to
take under review every dispute in which the Government and a
taxpayer differ as to whether a given expenditure is an ordinary or
an extraordinary expense of the taxpayer's business, we shall be
involved in the decision of myriad cases, each turning upon its own
facts, without furnishing any light to the taxpayers for their
future guidance. I think this is the result of the court's opinion.
It is admitted that the fact that the expenditure occurred but once
in the taxpayer's experience does not render it extraordinary. It
must be admitted that the fact that it is a large transaction does
not render it extraordinary. What the opinion does, in the upshot,
is to canvass all the circumstances and reach, as I think, a
conclusion based solely upon the peculiar facts of this single
case. We have repeatedly warned the Bar and the public that this we
will not do, because we do not sit for any such purpose.
An added reason for refusing to decide the case is the admission
that the Treasury and the Board of Tax Appeals, in years past, have
held a similar expense incurred in earlier years an expense of the
taxpayer's business. In a matter resting so much in judgment and
discretion as the determination of what is ordinary and what
extraordinary expenditure in a business, the weight of a continued
administrative construction is of peculiar importance, and we ought
not now depart from the rule long observed that such practice is
entitled to high consideration at the hands of the courts, and
should not be overturned unless clearly wrong, and for the most
cogent reasons.
Page 308 U. S. 502
Since the case has been taken and considered on the merits, I
think the judgment below should be affirmed. I need add little to
the opinion of Judge Maris of the Circuit Court of Appeals, 103
F.2d 257, with which I agree. The taxpayer borrowed stock in order
to sell it for cash to others. His contract obligated him either to
return the stock or to pay the carrying charges to the lender. What
he paid was not technically interest, but it was an expense
necessary to his obtaining and using the stock. He had several
alternatives: to pay the annual carrying charges, or to default,
and, in that case, to go into the market to buy the stock and
return it to the lender or to pay the lender the value thereof.
What was there extraordinary about this transaction as compared
with the borrowing of any commodity other than stock for a business
reason and with a business purpose? In the conduct of every
business, situations arise which must be met. The circumstance that
such a situation had not theretofore arisen, or that the
transaction was the first of its kind in the respondent's business
experience, does not render it extraordinary in the sense in which
the statute uses the term. The limitation placed by Congress upon
the types of expenditures made deductible was intended to prevent
evasion of payment of tax on true net income, which confessedly was
not a motive in the present instance. I think that, under the guise
of enforcing the plain mandate of the statute, the court is really
reading into the law what is not there, and what Congress did not
intend to place there.
To suggest, even by indirection, that perchance the taxpayer's
expenditure may be treated as a capital expenditure is, in my
judgment, to keep the word of promise to the ear and break it to
the hope. In my view, the carrying charge of the taxpayer's loan
was either an ordinary expense of his business or it was nothing of
consequence under any provision of the statute.
MR. JUSTICE McREYNOLDS joins in this opinion.