1988 Tax Ct. Memo LEXIS 321 | Tax Ct. | 1988
MEMORANDUM FINDINGS OF FACT AND OPINION
1988 Tax Ct. Memo LEXIS 321">*323 HAMBLEN,
The issues for decision are: (1) whether petitioners are entitled to claim depreciation deductions under
FINDINGS OF FACT
Some of the facts have been stipulated and are found accordingly. The stipulation of facts, the supplemental stipulation of facts and attached exhibits are incorporated1988 Tax Ct. Memo LEXIS 321">*324 herein by this reference. 2
Petitioners resided in Portland, Oregon, when they filed their petition in this case.
During the taxable years in issue, petitioner Louis Browning was a musician. 3 He performed in a variety of settings such as nightclubs, bars and private engagements. Prior to and during the taxable years in issue, petitioner purchased several instruments, most notably three violins each made by a renowned violin craftsman.
In 1978, petitioner purchased a Ruggeri violin at a cost of $ 24,000. The violin carries a Rembert Wuzlitzer, Inc. certificate which certifies that the violin was made in Cremona, Italy by violin maker Francesca Ruggeri in 1675. On March 19, 1979, petitioner purchased a Stradivarius violin for $ 130,000. Accompanying the Stradivarius violin was a Dario D'Attili certificate of origin certifying that, with the exception of the scroll, the violin was made by Antonio Stradivarius in Cremona, Italy in 1736. On December 3, 1981, petitioner purchased a1988 Tax Ct. Memo LEXIS 321">*325 Gabbrielli violin for $ 27,000. A prestigious William E. Hill & Sons certificate acknowledges that this violin was made by Joannes Battista Gabbrielli of Florence, Italy in 1779.
During taxable year 1980, petitioner utilized one room of his six-room home exclusively for practicing music. He stored his musical instruments in a closet in this room. During 1980, petitioner sustained and paid expenses of $ 400 in connection with this room. 4 Petitioner did not maintain an office elsewhere during taxable year 1980.
During the taxable years in issue, petitioner deducted depreciation expense for his musical instruments under the straight line method as follows:
Depre- | Depre- | ||||
Date | ciation | ciation | |||
Item | Acquired | Cost | Life | 1980 | 1981 |
Violins | 1977 | $ 975 | 8 | $ 122 | $ 122 |
Ruggeri | 19978 | 24,000 | 12 | 2,000 | 2,000 |
Violin | |||||
Schuback | 1978 | 6,000 | 12 | 500 | 500 |
Violin | |||||
Guitar & | 7/1/79 | 2,290 | 8 | 286 | 286 |
Amplifier | |||||
Fiddle & | 7/1/79 | 700 | 5 | 140 | 140 |
Guitar | |||||
Stradivarius | 7/1/79 | 131,200 | 12 | 10,933 | 10,933 |
Hill Violin | 1981 | 2,100 | 5 | -- | 210 |
Bow | |||||
Microphone | 1981 | 360 | 3 | -- | 60 |
Total | $ 13,981 | $ 14,251 |
1988 Tax Ct. Memo LEXIS 321">*326
Additionally, on Schedule C of their 1980 Form 1040 return, petitioners deducted $ 400 for office space expense.
On August 14, 1984, respondent issued a notice of deficiency denying petitioners the depreciation deductions on the Ruggeri and Stradivarius violins, and the deduction with respect to petitioner's music practice room. Petitioners did not claim depreciation on the Gabbrielli violin purchased during taxable year 1981 on their 1981 Form 1040 return. On January 28, 1986, this Court granted petitioners' motion for leave to amend their petition. In their amended petition filed January 28, 1986, petitioners asserted their right to claim depreciation under section 168 and an investment tax credit in taxable year 1981 on the Gabbrielli violin. By amended answer filed February 18, 1986, respondent denies petitioners' claim.
Both petitioners and respondent lodged expert reports concerning the value of petitioner's Stradivarius violin. More particularly, the reports focused on the value of the Stradivarius in 1992, the end of its alleged useful life of 12 years.
Petitioners' expert, Paul Schuback ["Schuback"], is the principal in the Paul Schuback Violin Shop, Inc. 1988 Tax Ct. Memo LEXIS 321">*327 in Portland, Oregon. 5 After years of technical training, Schuback is a Master violin-maker. Additionally, Schuback buys and sells fine musical instruments, including Stradivarius violins. Schuback appraises, repairs, and restores fine musical instruments on a regular basis. Schuback sold petitioner his Stradivarius and Gabbrielli violins.
Schuback examines several factors in his evaluation of a musical instrument. First, Schuback ascertains the violin's original maker and the date and location of its construction. Second, Schuback evaluates the violin's present condition and tonal quality. Third, Schuback determines the ownership of the violin over the years. If an instrument was owned during its history by a celebrated soloist, the instrument retains a high value as a collectors' piece. Additionally, Schuback inspects the instrument for replacement parts.
After an examination of petitioner's Stradivarius violin, Schuback found that petitioner's Stradivarius
had already deteriorated1988 Tax Ct. Memo LEXIS 321">*328 and will possibly continue to loose [sic] value over the next several years, due to extreme playing conditions, and stress the instrument is subjected to.
Schuback concluded his report by stating
On June 15, 1983, Schuback provided petitioner with an insurance appraisal of his Stradivarius violin to which Schuback attached a cover letter which read, in pertinent part:
In March 1979, I sold a Stradivarius violin to Louis A. Browning. Although the violin is a beautiful instrument, it is not a prime specimen of a Stradivarius, since the head is not the original head, and the face is marred.
If a violin is used, as opposed to being put in a museum, it is subject to deterioration through ordinary wear and tear. After a period of use, normally 10 to 15 years, the violin will cease the richness of sound required by a professional musician. At that point, 1988 Tax Ct. Memo LEXIS 321">*329 it becomes worth less as a musical instrument. * * *
In 1984, Schuback valued petitioner's Stradivarius for insurance purposes at $ 225,000.
Respondent's expert witness, Wiley C. Grant, ("Grant") is presently a Senior Appraiser for the Internal Revenue Service. 6 In his valuation report, Grant determined the 1992 fair market value of petitioner's Stradivarius violin. Unlike Schuback's report, Grant centered his valuation1988 Tax Ct. Memo LEXIS 321">*330 inquiry on recent sales of Stradivarius violins primarily by auction houses such as Christie's and Sotheby's. With present-day sales of Stradivarius violins ranging from $ 36,741 to $ 308,000, Grant focused in particular on two recent sales of Stradivarius violins which Grant believed were comparable to petitioner's Stradivarius.
First, in January 18, 1984, Christie's New York sold the Lyall Stradivarius violin for $ 231,000. The Lyall Stradivarius carries a William E. Hill and Sons certificate stating that the violin was an authentic Stradivarius violin made in Cremona, Italy, in 1702 with the exception of its head. The 19th century violin craftsman Joseph Rocca created the violin's head. Second, Grant notes the November 20, 1984, sale of a 1720 Stradivarius whose front was constructed by Thomas Dodd and the head built by the Elder Chanot. 71988 Tax Ct. Memo LEXIS 321">*331 This Stradivarius violin sold for $ 36,741. 8
Grant concludes that through these examples it is clear that Stradivarius violins and partial Stradivarius violins are sold on a regular basis by auction houses and command "work of art" prices. Due to the limited supply of Stradivarius violins, Grant asserts that collectors who have never played a violin will pay high prices for Stradivarius even though it may be badly worn, damaged or repaired.
On the basis of the recent sales of Stradivarius violins by auction houses, Grant determined that petitioner's Stradivarius would appreciate rather than depreciate in value for each year of ownership. Applying a discount rate based on inflation, and the upward trend in the market, Grant concluded that petitioner's Stradivarius violin would be worth $ 275,000 in 1992. No expert reports were received concerning petitioner's Ruggeri and Gabbrielli violins.
OPINION
The first issue for determination is whether petitioners are entitled to claim1988 Tax Ct. Memo LEXIS 321">*332 depreciation deductions under
1988 Tax Ct. Memo LEXIS 321">*333
(a) GENERAL RULE. - There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) -
(1) of property used in the trade or business, * * *
In order to deduce depreciation expense for an asset used in trade or business or for the production of income, a taxpayer must establish three essential facts: (1) the depreciable basis of the property,
1988 Tax Ct. Memo LEXIS 321">*335 As the parties have concentrated their efforts in disputing the salvage value of the Stradivarius violin, we will begin our examination of petitioner's evidence there. Because the taxpayer must determine the salvage value of property at the time the property is placed into service, the taxpayer's determination is an estimation only.
In particular, with regard to Schuback's testimony and expert report, we find a complete failure to establish a salvage value for petitioner's Stradivarius in any amount at any point in time. Schuback testified generally and concluded that, while the tonal quality of the violin would deteriorate in 10 to 15 years, it was in essence impossible to place a salvage value on this instrument on anything but the most speculative basis. Schuback would not commit to a specific figure for a reasonably estimated salvage value nor would he state that petitioner's Stradivarius had a zero salvage value. However, for insurance purposes, Schuback1988 Tax Ct. Memo LEXIS 321">*337 appraised petitioner's Stradivarius violin at $ 225,000 in 1984. 13 Schuback was petitioner's sole witness. Other than Schuback's expert testimony and expert report, petitioner has presented us with little evidence. Although we are not convinced of the accuracy of Grant's discount rate method of determining the 1992 salvage value of petitioner's Stradivarius, we are persuaded, in the absence of any concrete evidence from petitioner, that petitioner's Stradivarius violin could not have a salvage value of zero in 1992. Under these circumstances, we hold for respondent.
1988 Tax Ct. Memo LEXIS 321">*338 Assuming arguendo that petitioner could prove a salvage value so as to fall within the purview of
The useful life of an asset is the period over which the asset may reasonably be expected to be useful to a taxpayer in his trade or business.
Petitioner1988 Tax Ct. Memo LEXIS 321">*339 concedes that he had no actual past experience with similar assets but looked to the industry as a whole in his estimation of both useful life and salvage value. However, the record does not show what industry criteria caused petitioner to estimate a useful life of twelve years or a zero salvage value for his Stradivarius violin. Further, petitioner admits that Schuback did not advise petitioner on useful life and salvage value for depreciation purposes. Petitioner states that he consulted counsel and relied on
In
Recreation:
Includes assets used in the provision of entertainment1988 Tax Ct. Memo LEXIS 321">*340 services on payment of a fee or admission charge, as in the operation of bowling alleys, billiard and pool establishments, theaters, concert halls, and miniature golf courses. Does not include amusement and theme parks and assets which consist primarily of specialized land improvements or structures, such as gold courses, sports stadia, race tracks, ski slopes, and buildings which house the assets used in entertainment services.
Revenue Rulings and Revenue Procedures are not binding on this Court. 15
It is difficult to conceive that violins over 200 years old have useful lives of twelve years and fall within1988 Tax Ct. Memo LEXIS 321">*341 the "Recreation" category of
Neither petitioner testified in this case and the record does not contain sufficient stipulated facts for us to answer some important questions. 16
Of key importance is the amount of time petitioner actually played the Stradivarius. Schuback attended some of petitioner's performances. Schuback stated that petitioner played the Stradivarius at performances on1988 Tax Ct. Memo LEXIS 321">*342 several occasions but Schuback did not know how many times petitioner used the Stradivarius. Given Schuback's testimony that performance use of the Stradivarius will cause deterioration, it is important to know how much petitioner actually played the violin. While we found Schuback's testimony generally credible, we cannot find as a fact that petitioner frequently used the Stradivarius in his performances. In fact, from the record, we have no definite answer as to how often the three antique violins were used, if ever. Even if the Stradivarius lost some or all of its tonal value, it is probable that it would retain substantial value as a antique collectible. In fact, we suspect that petitioner was forming a collection of antique violins not only as musical tools of the trade but as antique collectibles. In light of the testimony before us, we must sustain respondent's determination with respect to petitioner's Stradivarius violin.
Petitioners presented no evidence on the Ruggeri and Gabbrielli violins except to state that the same principles which Schuback applied to the Stradivarius violin applied to the Ruggeri and Gabbrielli violins. As petitioners bear the burden of proving1988 Tax Ct. Memo LEXIS 321">*343 their entitlement to depreciation deductions for the Ruggeri and Gabbrielli violin,
Petitioners assert that they are entitled to an investment tax credit on the Gabbrielli violin in taxable year 1981. In general, an investment tax credit is permitted on "property with respect to which depreciation * * * is allowable and having a useful life * * * of three years or more."
Finally, petitioners contend that in 1980, they are entitled to a $ 400 deduction for office space which was a portion of their residence. Petitioners have the burden of proving that they are entitled to this deduction.
1988 Tax Ct. Memo LEXIS 321">*345 We have considered petitioners' other arguments and find them to be without merit.
Based on the foregoing,
Footnotes
1. All section references are to the Internal Revenue Code of 1954, as amended and in effect during the years in issue. All rule references are to the Tax Court Rules of Practice and Procedure. ↩
2. On February 11, 1986, the supplemental stipulation of facts was read into the record at trial. ↩
3. The term "petitioner" shall hereinafter refer to petitioner Louis A. Browning. ↩
4. The record does not disclose what this $ 400 expense represents. ↩
5. Schuback also owns the Amati Shop, Inc. in Houston, Texas. He is a member of The American Federation of Violin and Bow Makers, The International Entente, and the Violin Society of America. ↩
6. Grant commenced his career as a cultural property appraiser in 1973. He serves as Chairman of respondent's Print Advisory Panel and collaborates professionally with respondent's Art Advisory Panel. In his position as Senior Appraiser, he has reviewed appraisals of valuable musical instruments including Stradivarius cellos. ↩
7. Both Thomas Dodd and the Elder Chanot are historic violinmakers. ↩
8. In his original report, Grant reported this sale as $ 52,000. He corrected his error in writing and through testimony. ↩
9. In their petition, petitioners asserted that respondent's determination in the notice of deficiency was arbitrary, capricious and discriminatory. In general, respondent's determination of a deficiency in tax is presumptively correct and petitioners bear the burden of proving it wrong.
;Welch v. Helvering, 290 U.S. 111">290 U.S. 111, 290 U.S. 111">114 (1933)Rule 142(a) . Where however, it is demonstrated that the statutory notice of deficiency is arbitrary and excessive, the presumption of correctness evaporates and the burden of going forward with evidence supporting the determination of deficiency shifts to respondent. ;Helvering v. Taylor, 293 U.S. 507">293 U.S. 507 (1935) . With certain limited exceptions, the Court will not look behind the notice of deficiency to examine the evidence used, the propriety of respondent's motives, the administrative policy or procedure followed by respondent in the determination of the statutory notice of deficiency.Dellacroce v. Commissioner, 83 T.C. 269">83 T.C. 269, 83 T.C. 269">280, 83 T.C. 269">287 (1984)83 T.C. 269"> Dellacroce v. Commissioner, supra ; . Our determination of a taxpayer's tax liability is based on the merits of the case as presented and is not based on the administrative record.Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324">62 T.C. 324, 62 T.C. 324">327 (1974)62 T.C. 324"> This case does not fall outside the general rule ofGreenberg's Express, Inc. v. Commissioner, supra. Greenberg's Express Inc.↩ and we find that respondent's determinations within the statutory notice of deficiency were not arbitrary, capricious or discriminatory.10.
Section 167(g) provides:(g) Basis for depreciation. - The bases on which exhaustion, wear and tear and obsolescence are to be allowed in respect of any property shall be the adjusted basis provided in section 1011 for the purpose of determining the gain on the sale or other disposition of such property. ↩
11.
Sec. 1.167(a)-1(b), Income Tax Regs. , provides:(b) Useful life. For the purpose of
section 167↩ the estimated useful life of an asset is not necessarily the useful life inherent in the asset but is the period over which the asset may reasonably be expected to be useful to the taxpayer in his trade or business or in the production of his income. This period shall be determined by reference to his experience with similar property taking into account present conditions and probable future developments. Some of the factors to be considered in determining this period are (1) wear and tear and decay or decline from natural causes, (2) the normal progress of the art, economic changes, inventions, and current developments with the industry and the taxpayer's trade or business, (3) the climatic and other local conditions peculiar to the taxpayer's trade or business, and (4) the taxpayer's policy as to repairs, renewals, and replacements. Salvage value is not a factor for the purpose of determining useful life. * * *12.
Sec. 1.167(a)-1(c), Income Tax Regs. , provides:(c) Salvage. (1) Salvage value is the amount (determined at the time of acquisition) which is estimated will be realizable upon sale or other disposition of an asset when it is no longer useful in the taxpayer's trade or business or in the production of his income and is to be retired from service by the taxpayer. Salvage value shall not be changed at any time after the determination made at the time of acquisition merely because of changes in price levels. * * * The time at which an asset is retired from service may vary according to the policy of the taxpayer. If the taxpayer's policy is to dispose of assets which are still in good operating condition, the salvage value may represent a relatively large portion of the original basis of the asset. However, if the taxpayer customarily uses an asset until its inherent useful life has been substantially exhausted, salvage value may represent no more than the junk value. Salvage value must be taken into account in determining the depreciation deduction either by a reduction of the amount subject to depreciation or by a reduction in the rate of depreciation, but in no event shall an asset (or an account) be depreciated below a reasonable salvage value. * * * ↩
13. Petitioners object to the admission of the insurance appraisals on grounds of relevancy.
Rule 401, Federal Rules of Evidence , applicable in the Court pursuant to Rule 143, and sec. 7453, defines relevant evidence as "evidence having any tendency to make the existence of anyfact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See . Upon reviewing the insurance appraisals, we find these documents contain facts which are relevant and material within the meaning ofArmco, Inc. v. Commissioner, 87 T.C. 865">87 T.C. 865, 87 T.C. 865">867 (1986)Rule 401, Federal Rules of Evidence.↩ Thus, petitioners' objection is overruled and the evidence is made a part of this record.14. This statement contradicts petitioners' claims in the original brief that "petitioner made his determination as to salvage value with the benefit of discussion with Mr. Schuback at the time of acquisition as to conditions and expectations of the violins at issue." ↩
15. A Revenue Procedure is used to promulgate rules of a procedural nature. Like Revenue Rulings, Revenue Procedures are "statements of general policy or interpretation formulated and adopted by the agency for guidance of the public." See H. Rept. No. 1980, 79th Cong., 2d Sess. 19 (1946); S. Doc. No. 248, 79th Cong., 2d Sess. 253 (1946). ↩
16. We note that we cannot assume that the testimony of a critical absentee witness would have been favorable. Indeed, the normal inference is that it would have been unfavorable.
, affd.Pollack v. Commissioner, 47 T.C. 92">47 T.C. 92, 47 T.C. 92">108 (1966)392 F.2d 409">392 F.2d 409 (5th Cir. 1968) . See also ;Tokarski v. Commissioner, 87 T.C. 74">87 T.C. 74, 87 T.C. 74">77 (1986) ;Bresler v. Commissioner, 65 T.C. 182">65 T.C. 182, 65 T.C. 182">188 (1975) , affd.Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158">6 T.C. 1158, 6 T.C. 1158">1165 (1946)162 F.2d 513">162 F.2d 513↩ (10th Cir. 1947) .17. We recognize that in
, the Court of Appeals for the Second Circuit allowed certain musicians to deduct the cost of practice areas in their homes. See alsoDrucker v. Commissioner, 715 F.2d 67">715 F.2d 67 (2d Cir. 1983) ;Meiers v. Commissioner, 782 F.2d 75">782 F.2d 75 (7th Cir. 1986) . However, the court based that allowance on its finding that "Both in time and in importance, home practice was the 'focal point' of the appellant musicians' employment-related activities."Weissman v. Commissioner, 751 F.2d 512">751 F.2d 512 (2d Cir. 1984)715 F.2d at 69 . Here, we cannot make that determination due to the lack of evidence. Therefore, applying theDrucker↩ test does not change our determination.