1974 U.S. Tax Ct. LEXIS 142">*142
The petitioner leased its property for use as a theater or broadcast studio pursuant to a lease whereby the lessee was obligated to restore the property to its original condition, reasonable wear and tear excepted. In the negotiations for a new lease, the lessee paid the petitioner $ 125,000 for "updating" the restoration clause.
61 T.C. 723">*723 SUPPLEMENTAL OPINION
In our opinion entered January 27, 1972 (
1974 U.S. Tax Ct. LEXIS 142">*144 The appellate court agreed with our holding that there was no compulsory or involuntary conversion of property. However, that court remanded the case for reconsideration of our decision that the payment 61 T.C. 723">*724 did not constitute an amount realized from the sale or exchange of property used in the trade or business within the meaning of
(a) General Rule. -- If, during the taxable year, the recognized gains on 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. * 1974 U.S. Tax Ct. LEXIS 142">*145 * *
It will be noted that the statute, by its very terms, recognizes that there may be a distinction between "a sale or exchange" of property and "the compulsory or involuntary conversion" of property. This distinction stems in part from the decision of the Supreme Court in
In
Generally speaking, the language in the Revenue Act, just as in any statute, is to be given its ordinary meaning, and the words "sale" and "exchange" are1974 U.S. Tax Ct. LEXIS 142">*146 not to be read any differently. Compare
The Congress thereupon enacted
1974 U.S. Tax Ct. LEXIS 142">*147 The amendment in question merely modified the decision in the
We find no justification in the absence of congressional action to disregard the tests established in
The determination of the rentals for an additional term and the determination of the amount to be paid for updating the restoration clause were but steps in a single negotiation relating to the terms upon which the lessee would continue to occupy the property. As a result, the petitioner received a "premium" in the form of a payment for updating the restoration clause and the lessee was given a new lease upon terms more favorable with respect to restoration than its1974 U.S. Tax Ct. LEXIS 142">*148 prior lease.
The liability of the lessee encompassed not only the replacement of curtains, seats, and the like, which had long since been removed and presumably "junked," but also the removal of the walls, partitions, and other installations made by the lessee to convert the property to its use. To the extent that the obligation to restore related to the seats, carpets, curtains, and other property which had been removed by the lessee in the conversion of the theater, we are dealing with depreciable assets, the cost of which had long since been recovered by the petitioner through the composite depreciation claimed on the property as a whole. To the extent that the obligation related to the cost of removing walls, partitions, and wiring installed by the lessee, it was incumbent upon the petitioner to show that the modifications damaged its property in the economic sense. At this time there could be no proof of any damage or economic loss on account 61 T.C. 723">*726 of the changes made by the lessee. As evidenced by the new lease, the value of the property was, if anything, enhanced. 3
1974 U.S. Tax Ct. LEXIS 142">*149
1974 U.S. Tax Ct. LEXIS 142">*150 Notwithstanding the opinion of the appellate court remanding this case to us for consideration, we must profess our inability to distinguish in principle between our opinion in this case and the opinion of the appellate court in
Nor do we find the decision in
61 T.C. 723">*727 By contrast, in the
Accordingly, having reconsidered our opinion in this matter, we find no reason to change our views and, therefore, reaffirm that opinion.
1. All statutory references are to the Internal Revenue Code of 1954, as amended.↩
2. In explanation thereof, the report of the Committee on Finance states:
"
3. Where a payment represents compensation for measurable damages to the property, this Court has held that the amount received should be charged initially to the taxpayer's basis and only the excess is taxable.
4. In explaining the apparent inconsistency of his position in the