Lobsenz v. Commissioner , 17 B.T.A. 81 ( 1929 )

OPINION.

Arundell:

In our findings of fact we have determined, (a) the amount of profit realized by petitioner on the sale of the Howe Avenue lots, (b) the basis for computing depreciation on buildings at 684-686, 688 Main Avenue, Passaic, N. J., and 411 Broadway, Paterson, N. J., (c) the amount deductible on account of contributions in 1923, and (d) the amounts paid in 1923 and 1924 for water rent and janitor service which are deductible as ordinary and necessary expenses. Recomputation of the deficiencies determined should be made accordingly.

There is no evidence as to the cost of the Lexington Avenue buildings and we are unable to say what is the proper basis for depreciation. While the pleadings raise issues as to both the depreciation rate and basis, no evidence was offered as to the rate, and, accordingly, the rates used by the respondent, 2 per cent on brick and 3 per cent on frame buildings, must be approved.

On the other claims made by petitioner, the evidence is too indefinite to warrant our making any findings of fact. A contention in petitioner’s brief as to gross income from rents can not be considered as it is not an issue in the proceeding. The only issue raised by the pleadings as to rent is whether the respondent allowed sufficient depreciation in determining the income from rents.

Judgment will be entered under Rule 50.