1926 BTA LEXIS 2354 | B.T.A. | 1926
Lead Opinion
Two issues are presented for the consideration of the Board in the determination of this appeal: (1) Whether the depreciated cost at March 1, 1913, or the fair market value as of that date, shall be used as the basis for computing the petitioner’s deduction from gross income for the year 1918 as exhaustion of a certain leasehold on real estate; and (2) ivhether the petitioner may take a deduction for obsolescence of its bank building in its income-tax return for the year 1918 in excess of the amount of ordinary depreciation allowed by the Commissioner.
The parties agree as to the values involved. The petitioner acquired the leasehold in 1904 at a cost of $116,806.50, and the depreciated cost of its interest therein was $81,086.99 on March 1,
There is, however, an additional element in this controversy which must be considered. Prior to or about March 1, 1913, the petitioner became the owner of two-sixths of the fee of the real estate covered by the leasehold in question, and, some time during the year 1918, it acquired an additional two-sixths interest in such fee. Neither party bases its contentions on the petitioner’s ownership of such fractions of the fee, and the petitioner voluntarily concedes that it is not entitled to exhaustion of that part of the leasehold represented by its two-sixths interest in the fee on March 1, 1913. The Commissioner suggests that there may have been a merger of the lesser with, the greater estate resulting from the petitioner’s ownership of a fraction of the fee, and insists, in any event, that the petitioner is entitled to exhaustion of only two-sixths of whatever value of the leasehold is the proper basis for the computation of exhaustion.
The rule as to the merger of lesser estatés with greater estates is well established:
Whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater. Thus, if there be a tenant for years, and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the inheritance and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right and he has a term in right of another (en auter droit) there is no merger. Sharswood’s Blackstone, Vol. I, Book II, 177.
Bouvier says, under the caption “ Merger of Estates ”:
• When a greater estate and less coincide and meet in one and the same person, without any intermediate estate, the less is immediately merged, that is, sunk or drowned, in the latter; but they must be in one and the same person, at one and the same time, in one and the same right. Nicholson v. Halsey, 1 Johns. Ch. (N. Y.) 417; Lockwood v. Sturdevant, 6 Conn. 373.
To have the union operate a merger, the estates must unite in one and the same person, having a commensurate and coextensive interest in each, with*113 no intervening interest in another. A legal estate in fee in one who has only a partial equitable interest, or vice versa, would not merge. In re Washburn's Estate, 11 Cal. App. 735; 106 Pac. 415.
Where the lessee of land becomes the owner thereof in fee, the lease is terminated and the lesser estate is merged into the greater. 24 Cyc. 1342. McMahan v. Jacoway, (Ala.) 17 So. 39; Hudson Bros. Com. Co. v. Glencoe Sand & G. Co., (Mo.) 41 S. W. 450; Story v. Ulman (Md.), 41 Atl. 120.
In order that there may be a merger it is essential that there should be at least two distinct estates, a greater and a lesser, meeting in the same person, or class of persons, at the same time and without any intervening estate. 21 Corpus Juris, 1035-36.
In this appeal the parties agree that the lease was not terminated by the acquisition of a fraction of the fee by the petitioner which was the owner of the entire leasehold. Although the lessee purchased portions of the fee at different times, the leasehold, nevertheless, continued to have a legal existence in its entirety and so could have been sold or otherwise transferred as a whole at any time prior to legal merger of the lesser and greater estate through acquisition of the entire fee by such lessee.
The Board is of the opinion that no merger of the lesser with the greater estate involved in this appeal took place until the entire fee was acquired by the petitioner at a date subsequent to the year involved. The petitioner is entitled to deduct four-sixths of an aliquot part of $193,130.96 from its gross income for éxhaustion of the leasehold in question during the calendar year 1918.
In making its income and profits-tax return for the calendar year 1918, the petitioner deducted the amount of $100,000 for ordinary depreciation and obsolescence of the Pabst Building, which it owned at that time. Such deduction was based on the, decision of its directors that such building should be demolished and one more suitable for banking purposes erected as soon as possible after January 1, 1918. The Commissioner has disallowed all this deduction in excess of the normal or ordinary annual depreciation of such building.
The law permits, and, in some instances, the Board has sanctioned, deduction for obsolescence of tangible property. The petitioner argues that it was certain that the building in question would be demolished within three years at the outside, and that it was, therefore, entitled under the law to recover the unextinguished useful value of its property during that period, and so, for the first year of such period, took a deduction equal approximately to one-third of the remaining book value of the building which it had decided to demolish.
The evidence discloses that the demolition and construction plans considered prior to December 31, 1918, were not carried out. ' The petitioner was consolidated with another corporation in the same
Order of redetermination will he entered on 15 days' notice, under Rule 50.
