15 B.T.A. 141 | B.T.A. | 1929
Lead Opinion
Concerning the first issue, the petitioner does not claim that the deficiency is barred by the statute of limitations, but contends that inasmuch as the deficiency notice was mailed after the estate had been fully administered and the assets distributed in accordance with a decree of the court having jurisdiction over the estate, the respondent is precluded from making an assessment of the taxes alleged to be due. A complete answer to this question is found in Elna S. Evans, 12 B. T. A. 334, wherein we held that notwithstanding the fact that an estate has been fully administered and the administrator discharged, the Government has a right to collect the tax due from the estate within the statutory period provided by Congress. See also Joseph Simon, 9 B. T. A. 84.
It is claimed that the respondent erred in “treating the entire income of the estate of Jacob Kaufmann, deceased, as taxable to the estate of Augusta Kaufmann, deceased.” This is denied by the respondent.
In his audit of the returns the respondent found that the assets of the two estates were so intermingled that it was impossible to separate the income derived from each one, with the result that he taxed all of the income to the petitioner. The petitioner seeks to avoid the result of this action by showing that the property which produced the income in controversy was not owned by either estate, but was held by the five sons through a gift of their mother, the decedent, completed after the meeting of the family referred to in our findings of fact.
It seems clear from the evidence that the decedent desired to make some division of her husband’s estate, as well as of her separate property, among her sons, but the record does not disclose to what extent her wishes in that respect were carried out.
The evidence before us is insufficient to overcome the presumption existing in favor of the respondent’s determination and we must, ■therefore, approve his action.
The decedent did not hold title to the Penn Avenue and St. Clair Street, and Superior Place properties and is not entitled under the taxing acts to depreciation thereon, Military Equipment Co., 2 B. T. A. 36, and Frank Holton & Co., 10 B. T. A. 1317, and as the beneficiary of the estate of Jacob Kaufmann she is not entitled to a deduction for depreciation on the John Street property held in name of the executors of the estate, Marguerite T. Whitcomb, 4 B. T. A. 80; affd. 25 Fed. (2d) 528; and Codman v. Miles, 28 Fed. (2d) 823.
The Fourth Avenue property was acquired by the decedent on November 17,1908, at a cost of $95,000. Of the total purchase price, ■the petitioner’s witness testified that the cost of the building was '$25,000, the value used in the decedent’s returns for exhaustion purposes. No evidence was offered to prove the March 1, 1913, value of the building. Lacking the March 1, 1913, value of the building, we have no alternative but to sustain the respondent’s action as to this piece of property.
Judgment will be entered for the respondent.