Brevoort Hotel Co. v. Reinecke , 36 F.2d 51 ( 1929 )

EVAN A. EVANS, Circuit Judge.

Appellant brought this suit to recover income taxes by him paid under protest.

The facts are free from dispute. Appellant leased for a period of 99 years property situated in Chicago and commonly known as the Brevoort Hotel. The lease provided for the annual payment of $60,000 as rent. Appellant claimed the right to deduct certain sums for depreciation of the building covered by the lease. Its claim was disallowed by the United States internal revenue collector. Thereafter appellant paid its tax and brought this suit to recover the amount paid under protest, and which sum represented the difference between the amount paid and the amount that it would have been required to pay had its claim for depreciation been allowed.

The question presented here was settled by the recently decided case of Weiss v. Wiener, 279 U. S. 333, 49 S. Ct. 337, 338, 73 L. Ed. 720. In that case the court said:

“The diminution in the value of a mine to the lessee is conspicuous, neeessary, and intended, and is the very source of the gross income of the lessee from which it is deducted, whereas the wear and tear of a house or shop in any given year may be only recognizable by theory and, as has happened in this case, may cost the lessee nothing while the premises are in his hands.”

Counsel seeks to distinguish the instant ease from the Weiss Case, in that the lease under consideration was executed prior to March 1, 1913, while the lease in the Weiss Case was executed subsequent to that date. We fail to see any pertinency in this distinguishing fact.

The decree is affirmed.