1946 U.S. Tax Ct. LEXIS 126">*126
Petitioner, an attorney at law, owned and occupied, as a residence, property in Kansas City, Missouri, which he abandoned as such and took up his residence in Pittsburgh, Pennsylvania. The Kansas City property was rented and depreciation allowed thereon from January 1, 1940, until its sale in the taxable year 1943.
7 T.C. 372">*373 This proceeding involves a deficiency in income tax for the calendar year 1943 in the amount of $ 4,467.24. The only issue submitted is whether a loss sustained upon the sale of improved1946 U.S. Tax Ct. LEXIS 126">*128 real estate, formerly occupied by petitioner as a residence, is deductible in full as an ordinary loss or as a long term capital loss. The case was submitted upon a stipulation of facts, oral testimony, and exhibits. The stipulated facts are so found. Other facts are found from the record.
FINDINGS OF FACT.
Petitioner is an individual, residing at 5023 Frew Street, Pittsburgh, Pennsylvania. The return for the period involved was prepared on the cash basis and filed with the collector of internal revenue for the twenty-third district of Pennsylvania. Prior to 1938 petitioner engaged in the general practice of law at Kansas City, Missouri. Effective in October 1938, petitioner was employed as general counsel for the Pittsburgh Plate Glass Co., which employment required him to maintain his office and post of duty at Pittsburgh. Prior to 1940 petitioner severed his law partnerships in Kansas City, and he has since devoted his entire time to the Pittsburgh Plate Glass Co., for which he received a salary of $ 50,000 in 1943.
In 1930 petitioner purchased a residence at No. 1005 Brentwood Circle, Kansas City, Missouri, at a cost of $ 27,000, allocated on a basis of $ 6,000 for the 1946 U.S. Tax Ct. LEXIS 126">*129 land and $ 21,000 for the improvements. Subsequently he made additional improvements, aggregating $ 5,600, so that his total original cost was $ 32,600. Petitioner and his family occupied such residence until July 1, 1939, when they moved to Pittsburgh. In February 1940, petitioner purchased stock in a cooperative apartment building in Pittsburgh, entitling him to an apartment therein, which he and his family have occupied since the purchase. Prior to 1943 petitioner registered and voted in Allegheny County, Pennsylvania. On March 18, 1940, he was duly admitted to practice before the Supreme Court of Pennsylvania. On or about January 1, 1940, petitioner listed his Kansas City home with real estate agents for rent or for sale. Early in 1940 said property was rented at $ 75 per month. The property was continuously rented until sold on November 1, 1943. The depreciation on the building and the additions, from the date of acquisition to January 1, 1940, based on an estimated life of 33 1/3 years from the acquisition date, is as follows:
$ 21,000 at 28 1/2% | $ 5,985.00 |
1,000 at 19 1/2% | 195.00 |
600 at 10 1/2% | 63.00 |
3,000 at 4 1/2% | 135.00 |
Total | 6,378.00 |
The depreciated1946 U.S. Tax Ct. LEXIS 126">*130 value at January 1, 1940, was $ 25,222, allocated on a basis of $ 6,000 to the land and $ 19,222 to the improvements. The fair 7 T.C. 372">*374 market value of the properties on January 1, 1940, was equal to the depreciated value.
During the time the property was rented it continued to be listed for sale. In his Federal income tax returns for the years 1941, 1942, and 1943 petitioner claimed and was allowed depreciation on the buildings. The rate of 2 per cent per annum was claimed in petitioner's return for 1943. For the period January 1, 1940, to the date of sale on November 1, 1943, $ 1,819.38 in depreciation was claimed and allowed.
The sale price of the properties in question was $ 18,500, on which petitioner claimed a net loss of $ 6,844.92, computed as follows:
Fair market value on January 1, 1940 | $ 25,222.00 | |
Less: Depreciation on $ 19,222, value of dwelling for period | ||
Jan. 1, 1940, to Nov. 1, 1943, on estimated life of 40 1/2 years | 1,819.38 | |
Adjusted value of property Nov. 1, 1943 | 23,402.62 | |
Sale price of property | $ 18,500.00 | |
Less furniture, carpets, tools and equipment | 1,000.00 | |
17,500.00 | ||
Less cost of sale | 942.36 | |
$ 16,557.70 | ||
Net loss from sale | 6,844.92 |
1946 U.S. Tax Ct. LEXIS 126">*131 The respondent determined the loss sustained is allowable as a long term capital loss to the extent of $ 1,000, computed as follows:
Net loss from sale | $ 6,844.92 |
Loss taken into account | 3,422.46 |
Limitation of capital loss under sec. 117 (d) (2), I. R. C. | 1,000.00 |
Capital loss carry-over | 2,422.46 |
OPINION.
The sole question presented is the extent the loss of $ 6,844.92 sustained by the petitioner, an attorney at law, on the sale of his former residence in Kansas City, is deductible for income tax purposes. Petitioner contends that the total net loss is deductible under
While the Revenue Act of 1942 amended
* * * Property held for the production of income, but not used in a trade or business of the taxpayer, is not excluded from the term "capital assets" even though depreciation may have been allowed with respect to such property under
The property here, however, was "used in the trade or business of the taxpayer." The quoted regulation, by its terms, specifically excludes such from its purview. We conclude that petitioner's Kansas City real estate, formerly occupied as his residence, was not a "capital asset" at the time of its sale. 4 Petitioner is, therefore, entitled to a deduction for the total net loss of $ 6,844.92, as an ordinary loss under
The petition also assigns as error the disallowance as a deduction of the sum of $ 185 paid to the Duquesne Club of Pittsburgh for membership dues. No evidence was offered and petitioner's brief does not discuss that issue. It is deemed abandoned and1946 U.S. Tax Ct. LEXIS 126">*136 the respondent's disallowance of said amount is sustained.
1.
(a) Real Property Not Treated as Capital Asset. --
(b) Gains and Losses From Involuntary Conversion and From the Sale or Exchange of Certain Property Used in the Trade or Business. --
"(j) Gains and Losses From Involuntary Conversion and From the Sale or Exchange of Certain Property Used in the Trade or Business. --
"(1) Definition of Property Used in the Trade or Business. -- For the purposes of this subsection, the term 'property used in the trade or business' means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in
"(2) General Rule. -- If, during the taxable year, the recognized gains upon sales or exchanges of property used in the trade or business, plus the recognized gains from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of property used in the trade or business and capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. For the purposes of this paragraph:
"(A) In determining under this paragraph whether gains exceed losses, the gains and losses described therein shall be included only if and to the extent taken into account in computing net income, except that subsections (b) and (d) shall not apply.
"(B) Losses upon the destruction, in whole or in part, theft or seizure, or requisition or condemnation of property used in the trade or business or capital assets held for more than 6 months shall be considered losses from a compulsory or involuntary conversion."↩
2. H. Rept. No. 2333, 77th Cong., 1st sess., on Revenue Act of 1942.↩
3. S. Rept. No. 1631, 77th Cong., 2d sess.; H. Rept. No. 2586, 77th Cong., 2d sess. (conference report).↩
4. See Harvard Law Review, Nov. 1945, p. 119.↩