The Court of Appeals felt that the foregoing was the obvious inference to be drawn from the history that Court had narrated. We had denied petitioner's claim that, since certain of its leasehold improvements did not constitute the structural shell of a building or an integral part thereof (thus being classifiable under Class 65.0, Building Service), they were classified in asset depreciation range (ADR) 57.0, Distributive Trades and Services (the successor to Class 50.0, see below). We rejected petitioner's claim on the ground that the Treasury Department had failed to represcribe section 1250 property "explicitly".

The Court of Appeals stated:

We hold that Class 50.0 (now 57.0), Wholesale and Retail Trade, includes all section 1250 property not classified in Class 65.0, Building Services, and therefore remand to the Tax Court for a determination whether any of Walgreen's leasehold improvements are section 1250 property not classified in Class 65.0, in which event Walgreen is entitled to depreciate it, for the taxable years in question, on the basis of a useful life 1996 Tax Ct. Memo LEXIS 390">*395 of 10 years. [Walgreen Co. & Subs. v. Commissioner, 68 F.3d 1006">68 F.3d at 1010.]

We now address that task.

The relevant part of Class 65.0, Building Services, reads as follows:

Building Services:

Provision of the services of buildings, whether for use by others or for taxpayer's own account. Assets in the classes listed below include the structural shells of buildings and all integral parts thereof; equipment that services normal heating, plumbing, air conditioning, illumination, fire prevention, and power requirements; equipment for the movement of passengers and freight within the building; and any additions to buildings or their components, capitalized remodeling costs, and partitions both permanent and semipermanent. [ Rev. Proc. 72-10, 1972-1 C.B. 721, 730; fn. ref. omitted.]

Class 50.0, Wholesale and Retail Trade, reads as follows:

Wholesale and retail trade:

Includes assets used in carrying out the activities of purchasing, assembling, storing, sorting, grading, and selling of goods at both the wholesale and retail level. Also includes assets used in such activities as the operation of restaurants, 1996 Tax Ct. Memo LEXIS 390">*396 cafes, coin-operated dispensing machines, and in brokerage of scrap metal. [Id.]

Class 57.0, Distributive Trades and Services, which the Court of Appeals held is the successor to Class 50.0, now reads as follows:

Distributive Trades and Services:

Includes assets used in wholesale and retail trade, and personal and professional services. Includes section 1245 assets used in marketing petroleum and petroleum products. [ Rev. Proc. 83-35, 1983-1 C.B. 745, 762.]

In the reply brief that petitioner filed in the previous proceeding before us, the items in dispute were identified as follows:

1. Interior partitions, including primarily drywall partitions, but also including some glass partitions in Walgreen drugstores and metal partitions in washrooms, and including the carpentry, framing, millwork, metalwork, and trimwork necessary for installation, and also including doors;

2. ceilings, including the acoustic ceiling system consisting of panels and grid, and also including some drywall ceilings;

3. electrical lighting fixtures, including recessed and lay-in lighting, beyond emergency lighting, night lighting, and exit lighting, 1996 Tax Ct. Memo LEXIS 390">*397 and the branch circuit systems and power system relating thereto;

4. interior floor finishes, including carpet, vinyl or rubber tile, ceramic and quarry tile, and epoxy or sealers; and,

5. decor finishes, primarily the decorative canopy system relating to the Wag's restaurants, including the concrete foundation, concrete piers, lumber, and signs attached thereto.

In its opinion, the Court of Appeals noted that the parties agree that any asset that might be included in both "Wholesale and Retail Trade" and "Building Services" would be classified in Building Services. Walgreen Co. & Subs. v. Commissioner, 68 F.3d 1006">68 F.3d at 1008. In complying with the Mandate of the Court of Appeals to fit a legal definition to the facts of this case, we find that, though items in categories 1 through 4, supra, might arguably fall within Wholesale and Retail Trade (or Distributive Trades and Services), they more logically and comfortably fit within Building Services, and so must be included in that class. We reach this conclusion without resorting to an analysis of real property concepts of "fixtures", a legal analysis which might well require us to go beyond the parameters1996 Tax Ct. Memo LEXIS 390">*398 of our assigned fact finding task. Instead, we compare the items in controversy with the descriptions contained in Rev. Proc. 72-10. The items in categories 1 through 4, above, fall squarely within "equipment that services * * * illumination * * * and any additions to buildings or their components, capitalized remodeling costs, and partitions both permanent and semipermanent", and we so find. Rev. Proc. 72-10, supra at 730 (emphasis added).

On the other hand, all of the items referred to in category 5 can be described as "assets used in such activities as the operation of restaurants, cafes, * * *" and are not building components. Id. These items are largely decorative and not integral parts of any structural shell. They therefore fall exclusively within Class 50.0, Wholesale and Retail Trade or, alternatively, Class 57.0, Distributive Trades and Services. Rev. Proc. 72-10, supra; Rev. Proc. 83-35, supra.

In petitioner's supplemental brief, filed in response to an Order of this Court1996 Tax Ct. Memo LEXIS 390">*399 following the reversal and remand of our prior Opinion, petitioner argues that a taxpayer providing building services might utilize assets described in Class 65.0, and such assets would be properly classified in Class 65.0; but petitioner says it is not in the business of providing "building services". Petitioner argues that it was the recipient of building services, not the provider, and Class 65.0 by its express terms embraces only items used to provide "Building Services". Therefore, petitioner reasons that none of the property in question falls under Class 65.0.

Petitioner's provider-recipient argument raises an issue that was not addressed by the Court of Appeals, nor was it raised in the prior proceeding before this Court. Since this new issue is beyond the scope of the remand, it is inappropriate to address it now, and we do not do so.

To reflect the above findings,

Decision will be entered under Rule 155.