1925 BTA LEXIS 2434 | B.T.A. | 1925
Lead Opinion
During the term of the lease, and eleven years prior to its expiration date, the lessors and lessee agreed to an extension of the term for ten years beyond the original date of expiration. The lessors agreed to the extension only on the condition that the lessee
In that situation, is the lessee entitled to depreciate the cost of improvements over the period ending with the original expiration date, or should the depreciation be spread over the full period as extended ?
It is a fact of no importance in this connection, if true, that the legal title to the improvements vests immediately in the lessee. Appeal of National City Bank of Seattle, 1 B. T. A. 139. Nor is it important that the title vests in the lessors on December 31, 1930, the original date for the expiration of the lease. The improvements were all made after the extension was agreed upon. Both parties then knew that the lessee would enjoy the beneficial use of the improvements up to 1941 or for the life of the improvements, whichever would be the shorter period. As stated by us in Appeal of National City Bank of Seattle, supra:
From the standpoint of the lessee they [payments made by a lessee for improvements npon the lessor’s premises] represent an investment of capital for improvements which will inure to the benefit of the lessee for the term of the lease, or for the term of the useful life of the improvements.
“ Depreciation ” is an allowance for the recovery of a capital investment. Appeal of Even Realty Co., 1 B. T. A. 355; Appeal of The Brevoort Hotel Co., 1 B. T. A. 132. It is not predicated upon ownership of the property, but rather upon an investment in property which is thereafter used. The important question is not, in whom vests the fee or when it vested, but who made the investment of the capital which is to be recovered over the period of the exhaustion of the property. The one who made the investment is entitled to its return.
Obviously, a lessee has no opportunity to afford himself such recovery after his right to the use and enjoyment of the property has expired. It is equally apparent that a lessor' who has made no investment possesses nothing upon which such a recovery of capital can be predicated. That improvements made upon his property do, by operation of law, vest in him the ownership of the improvements, has no bearing upon the investment which is to be returned. He then has a bare legal title and nothing more. He is debarred from any enjoyment of the improvements so long as the terms of the lease are performed. His enjoyment is confined to the receipt of rental payments and, until a default under the lease, he has nothing but a mere expectation of future realization.
Conversely, if the lessor makes the improvements at his expense during the term of the lease, or otherwise, the fact that the lessee
The material elements are, the person who makes the investment, use of the property, and the period over which that investment is to be recovered out of income. Ordinarily, such recovery should be made during the probable useful life of the improvement, or, as stated by us in Appeal of Richmond Dairy Lunch, 1 B. T. A. 876, 878, 879:
The reason for such deduction is to provide a method by which the capital investment of a taxpayer may be. kept intact while its physical properties, or some of them, may be losing their capital value by reason of their use in business or by lapse of time. This deduction, however, must be computed ratably over the period of the useful life of the property and at a rate that will restore the capital cost at the end of the period when the property may be presumed to have lost its usefulness.
See also, Appeal of Willimn J. Ostheimer, 1 B. T. A. 18; Appeal of The Brevoort Hotel Co., 1 B. T. A. 132; Appeal of Grosvenor Atterbury, 1 B. T. A. 169; Appeal of Wigwam Amusement Co., 1 B. T. A. 335.
When the lessee makes the investment the period of exhaustion of the property and recovery of the capital should be spread over the time that the lessee is entitled to the enjoyment of the use of the property.
In many cases depreciation'in the capital investment is equivalent to the exhaustion of the property acquired with the capital. The proportionate recovery of the capital out of income provides a fund that equally replaces the exhaustion by a monetary equivalent, but it is the use of the property, through the period of time in which that use takes place, that finds a resultant in the exhaustion of the property and the contemporaneous depreciation of the capSal. Unless recovered during the period of enjoyment a real and substantial loss will result. Just as “ depreciation ” has a meaning in its .ordinary and usual sense as understood by business men, Von Baumbach v. Sargent Land Co., 242 U. S. 503, so with the “reasonable allowance for exhaustion, wear and tear of property used in business.”
In the present appeal, expense of $450,000 was incurred within three years after the extension agreement was made. Prudent business men would not have caused that expense to the corporation except with the expectation of obtaining the return of the expenditure by reason of the ten-year extension. They obviously desired the extension for the very purpose of therein recovering the capital expenditure — of having twenty-one years instead of eleven during which the earnings would prove the justification for the improvement expense borne by the corporation. With their responsibility to stockholders they could hardly have done otherwise. Obviously,
We impute to the taxpayer the exercise of such reasonable business-judgment as the ordinarily prudent business man would exercise under like or similar circumstances. It would be reasonable to prorate the expense over the entire period of the enjoyment of the improvements by the taxpayer. Accordingly, the determination by the-Commissioner was correct.