Lansburgh & Bro., Inc. v. Commissioner , 23 B.T.A. 66 ( 1931 )

LANSBURGH & BROTHER, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Lansburgh & Bro., Inc. v. Commissioner

Docket No. 23125.

United States Board of Tax Appeals

23 B.T.A. 66; 1931 BTA LEXIS 1932;

May 6, 1931, Promulgated

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Where a taxpayer buys real estate upon which is located a building which he proceeds to raze within a short time thereafter with a view to erecting thereon another building, he has not sustained a deductible loss by reason of the demolition of the old building.

Ben Jenkins, Esq., A. F. Prescott, Jr., Esq., and Earle W. Wallick, Esq., for the petitioner.

Brooks Fullerton, Esq., for the respondent.

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SMITH

The respondent has determined a deficiency in petitioner's income tax for the fiscal year ended January 31, 1924, in the amount of $7,115. The entire proposed deficiency results from the disallowance from gross income of a deduction of $56,920 representing an amount claimed by the petitioner in its return as a loss resulting from the demolition of a building which it acquired in 1922.

The petitioner has alleged further errors in the respondent's computation with respect to his allowance for depreciation on certain buildings, furniture and equipment. The parties reached an agreement upon all of the issues except that relating to the alleged loss resulting from the demolition of the building.

FINDINGS OF FACT.

The petitioner is a corporation organized under the laws of the District of Columbia, with its principal office at 430 Seventh Street N.W., Washington, D.C. It is and was for several years prior to the taxable year engaged in operating a department store at that location.

At a directors' meeting held November 6, 1922, a resolution was adopted authorizing the purchase of a certain parcel of real estate located at the southeast corner of the intersection of Eighth and E Streets N.W., described at Lot 804, Square 431, upon which was situated the Concordia or Rathskeller Building. The property was purchased by Samuel C. Taylor and Harry S. Welch, Jr., trustees for the petitioner, on November 9, 1922, at a cost of $143,750. The trustees conveyed the property to the petitioner on April 11, 1923.

The Rathskeller Building was a two-story structure erected in 1890 by one Christian Heurich for the use of the German Singing Societies of Washington. In the basement were bowling alleys. The first floor was several feet above the street level. On the second floor was a hall with a very high ceiling, intended for the use of the Singing Societies. The building was never intended as a money-making venture and Heurich, who owned the property until May, 1922, never made any profit from it. The building was not adapted to commercial enterprises. During the years 1917 to 1921, and until May, 1922, it was rented to Charles M. Schneider for $2,000 per annum, who conducted a restaurant known as the Rathskeller on the first floor and used the other floors for bowling alleys, lodge rooms, and other purposes. In May, 1922, Schneider's lease expired by limitation and was renewed at a rental of $4,000 per year, the lease permitting the lessor to terminate it at his option on six months notice. In June, 1922, Christian Heurich contracted to sell the lot and building to one Marie Ramsdell for $113,568, the amount at which it was assessed. On June 23, 1922, he gave notice to the tenant to vacate in six months so that the purchaser might have possession. The contract for sale was consummated by deed dated October 12, 1922.

The petitioner's main store in 1922 was on Seventh Street, but it owned the major portion of the block in which its store was located. It owned the lots adjoining the corner lot occupied by the so-called Rathskeller Building both on E Street on the east and Eighth Street on the south and all of the north portion of the block except Lot 804.

As early as March, 1922, the petitioner had considered the possibility of building on the corner lot on which the Rathskeller Building stood and an architect had submitted a plan for the improvement of the entire north side of the block. The plans showed the manner of setting foundation pillars so that the improvement of the corner lot would conform to the general improvement plan.

On January 12, 1923, shortly after the petitioner had acquired Lot 804, its board of directors authorized one Heister, petitioner's architect, to immediately draw plans for a new building to be erected on the Rathskeller site.

Solomon Lansburgh, president of the petitioner corporation, in his message to the stockholders at their twelfth annual meeting on March 5, 1923, referred specifically to the extensive building operations of the petitioner then in progress and in contemplation.

At a directors' meeting held August 9, 1923, Mark Lansburgh, one of the directors, said, (1) that the plans for the proposed new building on the Rathskeller site had been completed; (2) that James L. Parsons, Jr., had made an approximate estimate of the cost; and (3) that Parsons had been authorized to deposit the plans in the District Building for a permit to build, but with the specific reservation:

* * * it being understood that the Building Inspector's Office would not get to these plans for some time, and that we would be under no obligations to build, even though the plans were approved.

Under the notice served by Heurich upon Schneider, his tenant, on June 23, 1922, Schneider's lease terminated, provided the notice was valid and properly served, on December 23, 1922. When Schneider received the notice to vacate he consulted an attorney, who advised him that the notice was defective and that he did not have to vacate on December 23, 1922.

The petitioner not being able to get possession of the Rathskeller Building as expected, put the matter in the hands of its attorneys who, on May 17, 1923, instituted suit against Schneider for possession of the Rathskeller property. The litigation continued until September 26, 1923, when the matter was compromised by the execution of a lease from the petitioner to Schneider for one year at a rental of $8,000 per year, but with the privilege to either party of terminating the lease on sixty days' notice. Prior to that time Schneider had negotiated for the purchase of other property and the acquisition of such property merely awaited the return of the owner from Europe, the owner's agent having contracted for the sale of it. Schneider served written notice on the petitioner on October 29, 1923, that he would vacate the Rathskeller property on December 31, 1923. The petitioner's board of directors, on December 19, 1923, authorized Parsons and Hyman to raze the Rathskeller Building, and the demolition was begun in January, 1924. The petitioner received $500 salvage from the contractors.

In its income-tax return for the fiscal year ended January 31, 1924, the petitioner deducted from gross income $56,290 as a loss on account of the demolition of the Rathskeller Building. The deduction of this loss was disallowed by the Commissioner in the computation of the deficiency.

OPINION.

SMITH: Section 234(a) of the Revenue Act of 1924 provides in part:

In computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions:

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(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise. * * *

Article 142 of Regulations 65, promulgated under the provisions of the Revenue Act of 1924, provides in part:

* * * When a taxpayer buys real estate upon which is located a building, which he proceeds to raze with a view to erecting thereon another building, it will be considered that the taxpayer has sustained no deductible loss by reason of the demolition of the old building, and no deductible expense on account of the cost of such removal, the value of the real estate, exclusive of old improvements, being presumably equal to the purchase price of the land and building plus the cost of removing the useless building.

In this proceeding the petitioner contends that it is entitled to deduct from its gross income of the fiscal year ended January 31, 1924, $56,920 as a loss sustained by it in the demolition of a building upon property acquired by it in November, 1922, at a total cost of $143,750. It contends that the property was purchased as an investment, and for the purpose of obtaining control of the lot, and especially to prevent its acquisition by a competitor; further, that prior to its acquisition there had been no discussion by the officers of the petitioner of the possibility of building on it in the near future and that it was not purchased with that intention in view. It further contends that when it could not obtain a tenant for the premises at what it regarded as a fair rental, it determined to raze the building and that in doing so it sustained a loss of the difference between the fair value of that building, which it contends was approximately $60,000, and the salvage value received therefrom, namely, $500.

From a consideration of the entire record we can not escape the conclusion that the petitioner purchased the real estate in question with the intention of eventually razing or remodeling the Rathskeller Building or eventually erecting a commercial building upon the site. The rental which had been received by the previous owners of the property was unquestionably a grossly inadequate return upon an investment of $143,750. One of petitioner's valuation witnesses testified that the property in the condition that it was in at the time it was purchased would not rent readily and was not suitable for the lot or for a commercial retail business.

When the petitioner acquired the property it was apparently of the impression that the tenant would vacate the premises within the near future. The tenant had been served with a notice to vacate on June 23, 1922. Under the lease the tenant had only six months from that date within which to occupy the premises. The petitioner apparently relying upon the fact that it would soon have possession of the premises, in January, 1923, or within approximately two months after it had acquired title to the premises, instructed its architect to prepare plans for the erection of another building upon the site. The tenant, Schneider, did not vacate the premises as was expected. He resisted the demand to vacate and the petitioner, on May 17, 1923, instituted suit to dispossess him. The tenant had about that time, or shortly thereafter, entered into negotiations for the purchase of a building on Eleventh Street. By agreement of petitioner with the tenant in September, 1923, he was permitted to continue as tenant but at double the rental for a period. But, it was provided that either party to the lease could terminate the same upon sixty days' written notice.

The petitioner contends that when it received notice from Schneider in October, 1923, that he would not continue as a tenant at the agreed rental of $8,000 per annum beyond December 31, 1923, it sustained a loss of the difference between the fair market value of the building at the time it was acquired, less depreciation to the date of razing, and the salvage value. This contention is not supported by the facts in the case. Long prior to September the petitioner had planned to raze the building.

The facts in this case are much the same as those which obtained in the Liberty Baking Co. case, , in which the Board disallowed a deduction of loss for the demolition of a building. That company paid the tax, filed a claim for refund, and, at the expiration of six months brought suit for refund of the tax paid in the United States District Court for the Western District of Pennsylvania. That court considered the matter on its merits and decided:

On the merits of the case, the plaintiff is not entitled to recover. The item of $11,000 for demolition of buildings was not a deductible loss. This property, as it stood, was bought for the purpose of enlarging the plaintiff's plant. There was no loss sustained because of the demolition which was in contemplation at the time the property was bought. * * * (.)

The Liberty Baking Company appealed the case to the , and the decision of the District Court was affirmed in an opinion which also approved as an existing rule of law article 142 of Regulations 45.

We fail to see wherein the petitioner sustained a deductible loss by reason of the demolition of the Rathskeller Building. Undoubtedly, the Rathskeller Building would have been razed at a much earlier date had the petitioner's calculations not miscarried by reason of the unwillingness of the tenant to vacate after he had been served by the former owner with a notice to vacate at the end of six months. The mere delay of the date of razing the Rathskeller Building does not, in our opinion, warrant a conclusion that the petitioner sustained a deductible loss. The action of the respondent in disallowing the claimed deduction is sustained. Cf. .

Judgment will be entered under Rule 50.