Pig & Whistle Co. v. Commissioner , 9 B.T.A. 668 ( 1927 )

PIG & WHISTLE CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Pig & Whistle Co. v. Commissioner

Docket No. 6811.

United States Board of Tax Appeals

9 B.T.A. 668; 1927 BTA LEXIS 2540;

December 19, 1927, Promulgated

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The unextinguished cost of acquiring an original lease was part of the cost of acquiring a new lease on the same premises and should be prorated over the term of the new lease.

Lloyd S. Ackerman, for the petitioner.

Thomas P. Dudley, Jr., Esq., for the respondent.

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VAN FOSSAN

In this proceeding a redetermination is sought of a deficiency of $2,379.54 for the nine-month period ending September 30, 1921. The alleged error arose from the action of the Commissioner in prorating over the term of a new lease the unamortized or unextinguished cost of acquiring the original lease. Petitioner claims a loss of the whole amount in the year 1921.

FINDINGS OF FACT.

Petitioner is a California corporation owning and operating a group of stores known as Pig & Whistle. In 1911 it purchased for $27,000 a lease of a certain property in the City of Oakland, said lease having 13 years to run, and expiring May 31, 1924. During each of the years 1911 to 1920, petitioner, as lessee, charged off as amortization or exhaustion one-thirteenth of said cost of $27,000, leaving unamortized on January 31, 1921, the sum of $7,297.56. On this date said lease was canceled by mutual agreement between petitioner and lessors and a new lease at an increased rental for a 15-year term was executed. By the new agreement petitioner was given a credit on the rental called for by the new lease for the unexpired period of the old lease in an amount of $500 per month for the first year and $400 per month during the second and third years. No bonus was paid for the new lease, but the old lease would not have been canceled except for the execution of the new lease.

OPINION.

VAN FOSSAN: Petitioner contends that the unamortized or unextinguished cost of the old lease became a loss upon the execution of the new lease and that a deduction of the total amount should be allowed in the taxable year. Respondent treated it as a cost of the new lease to be exhausted or recovered by proration over the term thereof. We agree with the position of the respondent.

In the case of , we held that the unextinguished cost of buildings removed in order to obtain a 99-year lease upon the land represented the cost to the lessor of such lease and should be exhausted over the term of the lease. In the opinion we said:

Taken by itself, the petitioners undoubtedly would be said to have sustained a loss in the demolition of their buildings, but when considered in connection with the entire transaction entered into on October 31, 1921, the Board is of the opinion that the removal of the buildings was fully compensated for in the rights acquired under the lease and that the cost of the buildings, less sustained depreciation, is properly allocable to the cost of securing the lease. In other words, there was in this instance what amounted to a substitution of assets; instead of an asset in the form of buildings, the petitiones now have another asset, viz., a lease, the giving up or voluntary destruction of the buildings being a necessary incident to the acquisition of the lease.

The reasoning is applicable here. While the unextinguished cost of the old lease might have been a loss had the lease been canceled before expiration if no new lease had been executed, viewing the entire transaction we believe there was such a continuity of rights and such an interrelation between the two leases as to justify the holding that the unextinguished cost of the first was part of the cost and consideration of the second.

Judgment will be entered on 15 days' notice, under Rule 50.

Considered by MARQUETTE and PHILLIPS.