1949 U.S. Tax Ct. LEXIS 196">*196
Petitioner in 1941 acquired real estate in Chicago improved with a theatre building, against which there were outstanding tax liens and penalties exceeding $ 120,000. It set up the cost of the property on its books by including therein the full amount of such liens and penalties in addition to the substantial cash amounts paid to its vendor. In 1946, upon the availability to it of new capital, it purchased, at public sale, the outstanding tax liens for approximately $ 50,000, plus other capital charges. Respondent reduced petitioner's basis for depreciation of the building for the years prior to 1946 by adding to its cash payments to its vendor only the amount expended to acquire the liens, plus charges.
12 T.C. 801">*802 OPINION.
Respondent determined deficiencies in income tax for the years 1942, 1943, and 1944 and in excess profits tax for 1943, in the following amounts:
Year | Income tax | Excess |
profits tax | ||
1942 | $ 1,123.93 | |
1943 | 1,088.54 | $ 8,771.50 |
1944 | 1,431.69 |
Petitioner claims an overpayment in income tax for 1943.
Because of certain concessions by petitioner 1 and because the determination of petitioner's net operating loss carry-back from 1945 has been reserved by the parties for Rule 50 computation, dependent upon the outcome of this proceeding, only one issue is presented -- petitioner's basis for purposes of depreciation during the years before us of a theatre building it acquired1949 U.S. Tax Ct. LEXIS 196">*198 in April 1941. Stated more narrowly, the problem is whether there should be included in petitioner's basis the full amount of tax liens outstanding against the property when it was acquired, as petitioner contends; or whether the basis should be retroactively reduced to reflect the purchase of the tax liens by petitioner at public sale at a discount of more than 50 per cent in May 1946, as respondent urges.
All of the facts have been stipulated and are hereby found accordingly.
Petitioner, an Illinois corporation, was organized in February 1941, with the corporate name of Slavin Amusement Co. Its name was changed in 1945 to Blackstone1949 U.S. Tax Ct. LEXIS 196">*199 Theatre Co. For the taxable years involved it filed its income tax returns with the collector at Chicago, Illinois.
On April 13, 1941, petitioner purchased the land and building located at 60 East Balbo Avenue, Chicago, Illinois, and continued to hold title to the property during the years before us. The building has been generally known as the Blackstone Theatre Building.
At the date of purchase, tax liens were outstanding on the property in the sum of $ 120,950.03, representing real estate taxes and penalties for the years 1929 to 1940, inclusive, which had been assessed and which were unpaid.
12 T.C. 801">*803 Between 1941 and 1945 petitioner did not have available funds with which to purchase the outstanding tax liens. In the latter part of 1945 new interests acquired one-half of petitioner's capital stock, and these parties agreed to advance to petitioner the funds needed to purchase the liens.
Thereafter, in February 1946, petitioner bid the sum of $ 40,220.77 for the tax liens outstanding, at a hearing before the County Court of Cook County, Illinois, in connection with the foreclosure of the liens. A sale was not approved at that time, and petitioner's bid was not accepted because1949 U.S. Tax Ct. LEXIS 196">*200 of the availability of another offer to pay $ 10,000 as a guarantee on a $ 50,000 bid. In May 1946, however, a public sale was held by order of the court, and petitioner purchased the outstanding liens for $ 50,220.77. It was required to pay $ 10,000 in legal fees and $ 3,000 for title fees in connection with the acquisition of the liens.
At the time of the acquisition of the Balbo Avenue property, petitioner set up its cost on its books, as follows:
Purchase price for vendor's equity | $ 36,800.00 |
Attorney's fees | 998.04 |
Fire escapes | 525.00 |
Accrued taxes, year 1941 | 6,243.50 |
Accrued taxes and penalties, years 1929-1940 | 120,950.03 |
Total (land and building) | 165,516.57 |
Of this sum, petitioner allocated $ 27,964.02 to the cost of land and the remainder of $ 137,552.55 to the cost of the building, which it used as a basis for computing depreciation thereon.
Respondent has determined the original cost basis of the building to be $ 79,823.52, as follows:
Purchase contract | $ 36,800.00 |
Attorney's fees | 998.04 |
Fire escapes | 525.00 |
Taxes -- 1941 | 6,243.50 |
Taxes -- 1940 and prior years | 50,221.00 |
Legal fees and title fees paid at time of purchasing tax liens | 13,000.00 |
Total (land and building) | 107,787.54 |
Less: Allocated to land | 27,964.02 |
Balance allocated to building | 79,823.52 |
1949 U.S. Tax Ct. LEXIS 196">*201 In the statement attached to the notice of deficiency, respondent explained the contested adjustment:
It is held that the cost of the building for depreciation purposes, under
Whatever vitality respondent's present position, or a sterner one he asserts he may have taken, 2 may have had before the Supreme Court spoke in
If petitioner had personally assumed liability for the discharge of the tax liens, then authorities even antedating the
12 T.C. 801">*805 We are unconvinced that the result to which we are led by the reasoning and underlying theory of the
Much of the administrative difficulty which, in part, prompted the decision in the
In no case to which we have been referred was retroactivity, as here pressed by respondent, sought or sanctioned. See
On the record before us, 8 we conclude that petitioner's basis for the Balbo Avenue property for the years herein involved1949 U.S. Tax Ct. LEXIS 196">*207 should include the full amount of the tax liens then outstanding.
1949 U.S. Tax Ct. LEXIS 196">*208
1. Petitioner concedes that the respondent properly disallowed deductions claimed by petitioner for maintenance and repairs amounting to $ 881.28 for 1941, $ 605.33 for 1942, $ 3,512.02 for 1943, $ 2,495.70 for 1944, and $ 5,219.30 for 1945. These amounts were added by respondent to the cost basis of the property for the purpose of computing depreciation thereon in the respective years.↩
2. See
3. See Engel, "Effects of the Crane Case"; Proceedings of N. Y. U., 6th Annual Institute on Federal Taxation, 379-382. See also Greenbaum, "The Basis of Property shall be the Cost of such Property: How is Cost Defined?"
4. The Bureau practice of long standing has been to allow depreciation on the basis of the equity plus the amount of the mortgage, and there was a desire [in the
5. In
6. What tax consequences may flow from this purchase of the tax liens in 1946 is a matter not presented for our disposition in this proceeding.↩
7. "* * * The original capital sum for depreciation must * * * be tested against the latest developments of the year for which the return is made." 4 Mertens, Law of Federal Income Taxation, p. 28.↩
8. What the result might be in a case where the value of the acquired property is less than the amount of the liens, we need not now decide. Cf.