Century Electric Co. v. Commissioner , 15 T.C. 581 ( 1950 )

Century Electric Company, Petitioner, v. Commissioner of Internal Revenue, Respondent

Century Electric Co. v. Commissioner

Docket No. 13115

United States Tax Court

15 T.C. 581; 1950 U.S. Tax Ct. LEXIS 54;

October 31, 1950, Promulgated

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">*54 Decision will be entered under Rule 50.

Petitioner corporation as of December 1, 1943, conveyed certain foundry property to the Trustees of William Jewell College. The property was used in petitioner's business. The building and land comprising the property had an adjusted basis on December 1, 1943, of $ 531,710.97. The consideration for the property was stated in the deed to be the sum of $ 150,000, which sum was paid to petitioner. As of the same date as the conveyance of the property the Trustees of William Jewell College and petitioner executed an indenture of lease of the property to petitioner for a term of 95 years subject to cancellation by the lessee at the end of a 25-year period and at the end of each 10-year period thereafter. Petitioner claimed a deductible loss of $ 381,710.97. Held:

(1) No loss is recognizable under section 112 (b) (1) and 112 (e), Internal Revenue Code, and Regulations 111, section 29.112 (b) (1)-1, the transaction constituting an exchange of a leasehold of a fee with 30 years or more to run and cash for real estate.

(2) Petitioner is entitled to depreciation on the leasehold after the exchange over a 95-year term on a basis of $ 381,710.97, ">*55 being the basis of the property exchanged less the cash received.

H. M. Stolar, Esq., Alfred O. Heitzmann, Esq., and Norman Begeman, Esq., for the petitioner.

Gene W. Reardon, Esq., for the respondent.

Johnson, Judge. Murdock, J., dissents. Leech, J., concurring. Turner, Disney, Raum, and Rice, JJ., ">*56 agree with this concurring opinion.

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JOHNSON

">*582 Respondent determined deficiencies for the calendar year 1943 in the amounts of $ 19,309.11 in declared value excess profits tax and $ 321,261.16 in excess profits tax. The principal issue is whether petitioner sustained a deductible loss of $ 381,710.97 upon the transfer in 1943 of certain real property consisting of a foundry building and land. Another issue, arising only in the event petitioner is held not to have sustained the claimed loss, is whether petitioner is entitled to depreciation after the transfer on the foundry building or on the lease it obtained on the property as of the date of sale and in what amount for 1943. Part of the facts were stipulated and the stipulation of facts is incorporated herein as part of our findings of fact.

FINDINGS OF FACT.

Petitioner is a corporation organized with a capital of $ 5,000 on February 19, 1901, under the laws of the State of Missouri. Its principal office and place of business is at 1806 Pine Street, St. Louis, Missouri. Petitioner's income and excess profits tax returns for the taxable year 1943 were filed with the collector of internal revenue for the first district of">*57 Missouri.

Petitioner is engaged principally in the manufacture and sale of electric motors and generators. From its inception in 1901 it has developed until it has achieved a continuous and successful operation in that business. It reported in its income tax return for 1943 gross sales of $ 17,004,839.73, and gross profit from sales of $ 5,944,386.93. Subject to manpower and material limitations, petitioner could on or about November 1943 sell all its products it could manufacture according to Government specifications, and it had at that time large outstanding orders with the Government.

In 1928 petitioner began the construction of a foundry building upon land which it then owned. The construction of the building was finally completed in 1930 at the cost of $ 453,932.23. The cost of the railroad siding was $ 30,385.80. From 1930 to 1943 various improvements were added to the building at the cost of $ 78,283.97, thus making the total cost of the building and railroad siding $ 562,602. ">*583 Depreciation on the foundry building and railroad siding on the basis of a useful life of 36 years from December 31, 1934, was claimed by petitioner and allowed by respondent to and ">*58 including November 30, 1943. On November 30, 1943, the depreciated cost of the foundry building and railroad siding was $ 385,958.81. No depreciation on such foundry building and railroad siding was claimed by petitioner in its return or allowed by the respondent for the month of December 1943. The land consisting of 2.99 acres upon which the foundry building was erected borders on the north side of Market Street and the west side of Spring Avenue in St. Louis, and was purchased by the petitioner on February 28, 1926, at a cost of $ 130,000. Subsequently, in 1929, 1932, and 1934, petitioner paid and capitalized special improvement taxes on this land aggregating $ 15,752.16, which taxes were assessed against it by the City of St. Louis incident to the cost of widening and paving Market Street. Thus the total cost of this land to petitioner was $ 145,752.16. On December 1, 1943, petitioner's adjusted cost basis for both the foundry building and the land, inclusive of the railroad siding, totaled $ 531,710.97, and petitioner was using the foundry building and land in the operation of its business.

The foundry property is necessary in the operation of petitioner's business. The ">*59 foundry manufactures gray-iron castings, which are used in the production of electric motors. The castings are shipped from the foundry to petitioner's plant at 1806 Pine Street, St. Louis, about a mile and a half distant.

The foundry property is in a location that is highly industrial and highly desirable. Its location is close to the center of population of St. Louis and accessible to a labor supply. Railroad trackage of the Wabash Railroad, which goes east, west, and north, serves the foundry, and it has good street access and street grade-level facilities. The foundry property site is zoned for unrestricted industrial use.

The foundry building was specially designed for a foundry. It could have been used as a warehouse but its best use was as a foundry. The building is a one to four-story brick building with a structural steel interior and corrugated asbestos and sheet metal siding. The ground space actually occupied by the foundry building was 95,349 square feet but the usable space was somewhat greater because a part of the building was four stories high. In 1947-1948 petitioner erected at its expense an addition to the foundry building costing $ 768,185.52.

The assessed">*60 values of the foundry building and the land upon which it was located for 1943 were as follows:

Foundry building	$ 140,000
Land (2.99 acres at $ 22,000 per acre)	65,780
Total	205,780

">*584 At a special meeting on December 9, 1943, petitioner's board of directors adopted resolutions that petitioner sell its foundry property inclusive of a railway easement to William Jewell College for $ 150,000 and that "as a condition of said sale of property and rights, this corporation will acquire from Trustees of William Jewell College, a Missouri corporation, an Indenture of Lease" of such property "for a term of not less than twenty-five years and for not more than ninety-five years." Petitioner, on December 15, 1943, executed as of December 1, 1943, and forthwith delivered a warranty deed to its foundry property consisting of 2.99 acres of land and improvements thereon, together with a railway easement, to the Trustees of William Jewell College for a stated consideration of $ 150,000. The warranty deed was filed and recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, on December 18, 1943, and was entered as Daily No. 27 of instruments filed">*61 on that date and is recorded in Book 6211, page 174 of the records of that office. At the time of the delivery of the warranty deed, on December 18, 1943, $ 150,000 cash was paid to petitioner.

Simultaneously as of December 1, 1943, an instrument entitled "Indenture of Lease from Trustees of William Jewell College to Century Electric Company" was executed on behalf of the Trustees of William Jewell College and petitioner.

The tenure of the lease under the indenture was as follows:

TO HAVE AND TO HOLD said property, together with all rights, privileges and appurtenances thereto belonging or in any wise appertaining, but always subject, however, to the specific conditions herein contained, as a foundry and industrial plant and its accessory uses, for a term beginning at midnight on the thirtieth day of November, 1943, and running not less than twenty-five (25) years to midnight on the thirtieth day of November, 1968, but not to exceed ninety-five (95) years ending at midnight on the thirtieth day of November of the year 2038; the term of this lease shall be divided into eight periods, the first of which shall be for twenty-five (25) years, and the seven remaining periods shall each">*62 be for ten years and shall run consecutively, so as to make this lease continuous in its operations from the beginning until its final termination; provided that the lessee shall have the absolute power to terminate this lease at the end of any one of said eight periods, as hereinafter set forth.

The indenture of lease provided that incident to such foundry property petitioner shall pay insurance premiums, costs, repairs and reconstruction of old improvements and construction of new buildings and improvements, special benefit and improvement assessments and also cash rentals to the college on the following basis:

The lessee does hereby covenant and agree to and with the lessor that it and all claiming under it shall and will pay the sum of Three Hundred Sixty-seven Thousand Five Hundred Dollars ($ 367,500.00) as rent for said premises, for the full term of the twenty-five (25) year period of this lease ending at midnight on November thirtieth, 1968, and it shall pay said rent in annual amounts, ">*585 each annual amount being payable in twelve equal monthly installments, each installment payable in advance on the first day of each calendar month during the term of this lease, ">*63 as follows:

$ 26,400.00 for the first year

$ 24,900.00 for the second year

$ 23,400.00 for the third year

$ 21,900.00 for the fourth year

$ 20,400.00 for the fifth year

$ 18,900.00 for the sixth year

$ 17,400.00 for the seventh year

$ 15,900.00 for the eighth year

$ 14,400.00 for the ninth year.

$ 12,900.00 for the tenth year

$ 11,400.00 for the eleventh year

and $ 11,400.00 for each year thereafter so long as this lease remains in force, payable monthly in advance in equal monthly installments.

The indenture of lease also provided that petitioner shall pay all charges against said property for which William Jewell College would be liable as owner if it actually operated the properties, except general state, city, and school taxes. The charter issued to William Jewell College by the State of Missouri exempts it from payment of general state, city, and school taxes.

Petitioner was prohibited from assigning the lease, except with the consent of the college, and could not by any assignment be relieved of its obligations under the lease. Nor could petitioner sublease except for foundry purposes, and no sublease could relieve petitioner from its obligations under the lease.

The">*64 college could forfeit the lease for a default of petitioner.

The lease indenture prescribes the following conditions for accelerating the ending of such lease:

A. This lease is divided into eight separate and distinct periods of time; the first such period is for twenty-five (25) years; beginning at midnight on November thirtieth, 1943, and ending at midnight on November thirtieth, 1968. If the lessee shall desire to terminate this lease on the thirtieth day of November, 1968, it has full power and authority so to do, provided it shall serve upon lessor at least ten years prior to said date written notice and declaration that this lease will terminate on said date; if the lessee shall desire to terminate this lease at the end of any of the next succeeding six ten-year periods of this lease, then it is agreed that the lessee has full power so to do, provided it shall serve upon lessor on or before the first day of any such ten-year period its written notice and declaration of such termination, so that lessor will have ten years notice of the termination of this lease before it actually terminates.

B. If no written notice is given lessor by lessee of an intention to terminate this ">*65 lease, as herein provided, then this lease shall continue from period to period hereof as a continuing lease, until the final ending hereof at midnight on the thirtieth day of November in the year 2038.

At the end of the lease there is to be yielded up to lessor the foundry property with the improvements thereon in good state and condition, ">*586 subject to reasonable use and wear and to damage or destruction by fire, providential cause or external violence.

Petitioner is not a dealer in real estate.

During the spring of 1943 petitioner was approached by a number of real estate agents including M. H. Rodemeyer, Wilbur Thomas, and LeGrand Jones, who suggested that petitioner sell some of its real property and take back a lease on the same property. LeGrand Jones was himself approached by other real estate agents, including Charles E. Richardson, Fred Dubinsky, the Glick Real Estate Co., and others, who made the same suggestion. It had always been petitioner's policy to own the property which it operated and utilized, and petitioner declined to make any such sale.

At about the same time, in the spring of 1943, E. L. Black (now deceased), vice president of Mercantile-Commerce Bank">*66 and Trust Co., where petitioner principally deposited its funds and one of four banks from which petitioner borrowed in 1943, also suggested that petitioner should sell some of its real property and take a lease back on the same property. The suggestion was made to J. F. Culver, petitioner's treasurer, who was in charge of petitioner's financial affairs. Black was in charge of petitioner's account at the bank and all petitioner's financial arrangements with the bank, including the obtaining and repaying of loans, were made through him. Culver saw Black frequently, usually three or four times a month. Black pointed out that the proceeds of such a sale plus the tax saving if a loss should occur on the sale would improve petitioner's cash position, which Black considered low.

The ratio of petitioner's current assets to its current liabilities at the close of the years 1935-1945 stated with current liabilities represented by 1 was as follows:

Year
1935	9.98
1936	4.53
1937	3.05
1938	3.66
1939	3.21
1940	2.69
1941	2.15
1942	1.74
1943 (after sale of foundry)	2.06
1944	1.69
1945	2.17

The foundry sale proceeds of $ 150,000 in cash increased the 1943 ratio of assets to">*67 liabilities from 1.74 to 1.80. The loss deduction here in question and consequent tax saving would have changed the ratio approximately twice as much as did the receipt of the $ 150,000.

The ratio of current assets to current liabilities was considered by the Mercantile-Commerce Bank and Trust Co. an important factor in determining the bank's attitude on the financial condition of a borrower.

">*587 The assets and liabilities of petitioner at the beginning and end of the taxable year 1943 were as follows:

	Beginning of taxable year
	Amount	Total
Assets
Cash		$ 147,977.73
Receivables	$ 1,813,527.39
Less reserve for bad debts	30,000.00
		1,783,527.39
Inventories:
Raw material	910,029.76
Work in progress	1,216,677.28
Finished goods	233,067.35
Supplies	173,018.35
		2,532,792.74
Deferred expenses		82,328.98
Other investments -- miscellaneous	457,000.00
Stock in domestic corporation	138,075.11
		595,075.11
Capital assets:
Depreciable assets, buildings and railroad
sidings	2,363,135.05
Machinery, equipment, etc	7,562,036.17
	9,925,171.22
Less reserve for depreciation	7,066,091.84
		2,859,079.38
Land		704,096.35
Other assets:
Goodwill, patents, etc	1.00
Sundry notes and accounts	23,054.72	23,055.72
Total assets		8,727,933.40
Liabilities
Accounts payable		770,600.48
Bonds, notes and mortgages payable:
With original maturity of less than 1 year	966,000.00
With original maturity of 1 year or more	65,000.00
		1,031,000.00
Accrued expenses:
Capital stock tax	15,000.00
Other	112,323.25
		127,323.25
Other liabilities: Debenture notes	144,800.00
		144,800.00
Surplus reserves:
Income taxes	1,100,000.00
Employee injuries and contingencies	289,737.55
		1,389,737.55
Capital stock: Common stock		4,534,100.00
Earned surplus and undivided profits		730,372.12
Total liabilities		8,727,933.40

">*68

	End of taxable year
	Amount	Total
Assets
Cash		$ 203,123.70
Receivables	$ 2,061,206.93
Less reserve for bad debts	30,000.00
		2,031,206.93
Inventories:
Raw material	1,051,314.76
Work in progress	1,396,583.73
Finished goods	211,625.44
Supplies	235,644.23
		2,895,168.16
Deferred expenses		94,223.56
Other investments -- miscellaneous	Stock in domestic corporation	138,075.11
		2,328,075.11
Capital assets:
Depreciable assets, buildings and railroad
sidings	1,956,052.98
Machinery, equipment, etc	8,145,077.90
	10,101,130.88
Less reserve for depreciation	7,430,429.16
		2,670,701.72
Land		558,342.19
Other assets:
Goodwill, patents, etc	1.00
Sundry notes and accounts	34,448.98	34,449.98
Total assets		10,815,291.35
Liabilities
Accounts payable		651,851.24
Bonds, notes and mortgages payable:
With original maturity of less than 1 year	With original maturity of 1 year or more	45,000.00
		850,000.00
Accrued expenses:
Capital stock tax	25,000.00
Other	154,117.67
		179,117.67
Other liabilities: Debenture notes	173,500.00
		173,500.00
Surplus reserves:
Income taxes	Employee injuries and contingencies	538,279.90
		3,313,279.90
Capital stock: Common stock		4,534,100.00
Earned surplus and undivided profits		1,113,442.54
Total liabilities		10,815,291.35

">*69

On December 31, 1942, petitioner owned land, the cost of which to petitioner was $ 704,096.35 and buildings and improvements thereon with a depreciated cost of $ 1,198,455.81, or a total depreciated cost of all of petitioner's land and buildings and improvements of $ 1,902,552.16.

">*588 On December 31, 1942, and at the end of each month during the year 1943, petitioner had actual cash on hand as shown by the following schedule:

Dec. 31, 1942	$ 147,977.73
Jan. 31, 1943	427,498.05
Feb. 28, 1943	403,800.20
March 31, 1943	633,299.99
April 30, 1943	291,122.13
May 31, 1943	198,817.50
June 30, 1943	182,500.31
July 31, 1943	687,339.63
Aug. 31, 1943	817,451.99
Sept. 30,1943	240,480.26
Oct. 31, 1943	431,290.14
Nov. 30, 1943	519,322.76
Dec. 31, 1943	203,123.70

">*70 During the year 1943 petitioner made cash quarterly dividend distributions in the total amount of $ 226,705.69 to its stockholders and also made a contribution of $ 42,500 to Washington University, St. Louis, Missouri. Exclusive of petitioner's actual cash on hand and the above distributions, petitioner had tax anticipation notes and Series G bonds totaling $ 2,000,000 which were readily convertible into cash and available to liquidate its outstanding 1943 tax liability of $ 1,592,298.83 and its two outstanding 90-day bank notes totaling $ 400,000 which were due and payable January 20, 1944.

It has been petitioner's policy to operate its business in part on borrowed capital. Its average daily borrowed capital in 1943 was $ 1,138,089.86 ($ 896,986.30 relative to the aforesaid 90-day bank loans and $ 241,103.56 relative to other miscellaneous loans). Petitioner's practice has always been to liquidate its outstanding 90-day bank loans as they became due by payment or renewals. Petitioner had an established written open line of credit in 1943 of $ 300,000 with Chase National Bank, New York, and of $ 300,000 with Boatmen's National Bank of St. Louis. Petitioner never asked the Mercantile-Commerce">*71 Bank and Trust Co. for a confirmed written line of credit in 1943 and was never informed that it had one. Mercantile did not always send commitment letters on lines of credit. However, Black, vice president of Mercantile, was authorized at his discretion to lend petitioner up to $ 400,000, and petitioner's line of credit with Mercantile remained at this figure throughout 1943. No request for a loan made by petitioner was rejected by Mercantile in 1943 and at the end of that year petitioner had outstanding loans of $ 600,000 from Mercantile. The loan of $ 200,000 above petitioner's line of credit of $ 400,000 was approved by Mercantile's executive committee and board of directors.

Culver relayed to petitioner's president, E. S. Pillsbury, and other officers Black's suggestion that petitioner sell and lease back some of its property. The conclusion of petitioner's officers at that time, in the spring of 1943, was that they would not be interested, first, because of the company's policy of owning its operating properties and because of the risk, if it became a lessee, of entirely losing the use of this essential property in the event of another depression and petitioner's ">*589 ">*72 inability to pay the stipulated rentals, and, secondly, because the tax advantage of which Black spoke if the property had to be sold at a loss was not an unmixed blessing inasmuch as petitioner would also lose part of its invested capital credit and its depreciation deduction on the foundry property.

In July 1943 Black told Culver that it would be a good thing for petitioner to pay off its loans in order to demonstrate its ability to do so. Accordingly, on July 26, 1943, petitioner borrowed $ 375,000 for 90 days from the First National Bank of St. Louis, putting up as collateral $ 400,000 in tax anticipation notes, and on September 8, 1943, an additional $ 375,000 for 90 days from First National Bank, putting up another $ 400,000 in tax anticipation notes. With the aid of the funds thus borrowed petitioner by September 27, 1943, paid off its loans of $ 350,000 from Mercantile, and $ 300,000 each from Boatmen's National Bank of St. Louis and Chase National Bank of New York. These were open-line commercial unsecured loans.

Petitioner obtained new open-line unsecured loans for 90 days of $ 300,000 from Mercantile-Commerce Bank and Trust Co. and of $ 100,000 from Boatmen's National">*73 Bank on October 22, 1943, and of $ 300,000 more from Mercantile-Commerce Bank and Trust Co. and of $ 100,000 from Chase National Bank on December 7, 1943.

Petitioner's board of directors, at a meeting on September 2, 1943, had a discussion, quoting the minutes:

* * * regarding the possibility of the sale and rental of the foundry property by Mr. Smith, Mr. Pillsbury, Mr. Culver, and others along lines that have been employed by other companies whose property amounts to considerable proportions. All were very much interested, and finally a resolution was offered by Mr. Baker and seconded by Mr. Culver.

Resolved, that the executive committee study the situation and present, if possible, a plan covering the sale and rental back by Century Electric Company of the foundry property.

This decision to sell and lease back the foundry property, if possible, was conveyed to Black.

After petitioner concluded to sell and lease back the foundry property the head of the real estate department of Mercantile-Commerce Bank and Trust Co. submitted an offer of $ 110,000 for the property on behalf of a Chicago syndicate whose identity was not disclosed to petitioner. This offer was rejected by petitioner">*74 on the ground that the price was inadequate. Culver concluded at this time that the property should bring not less than $ 150,000, and that conclusion was adopted by petitioner.

LeGrand Jones, a real estate agent who had handled most of petitioner's real estate transactions over a period of about 40 years, was called in early in September 1943 to seek a purchaser for the foundry. ">*590 He was told by petitioner's president, E. S. Pillsbury, that petitioner had decided to sell the foundry for no less than $ 150,000, provided it could get a lease for a term of years on the property. He was told that if he cared to offer the property to Missouri Baptist Hospital petitioner would have no objection, but that inasmuch as Pillsbury was president of petitioner and also president of the board of managers of Missouri Baptist Hospital, he would take no part in any negotiations or in any decision on the part of the Hospital. A meeting of the executive committee of the Hospital was held and the proposed purchase and lease-back of the foundry property was approved, with two dissenting votes. A meeting of petitioner's stockholders was held on November 24, 1943, for the purpose of approving">*75 or disapproving the proposed sale to Missouri Baptist Hospital and petitioner's stockholders approved the sale. However, as a result of the forceful opposition of two members of the board of managers of the Missouri Baptist Hospital, who doubted the value of such an investment for the Hospital, the Hospital withdrew its offer and the sale was not consummated.

The Millstone Construction Co. represented by its president, in November 1943, offered $ 150,000 for the property and an additional 4 acres of land contiguous to the foundry property. When he learned the contiguous 4 acres were not for sale the offer was withdrawn.

While petitioner's stockholders' meeting of November 24, 1943, was in session, a telegram was received from Glik-Watell Real Estate Co. offering $ 160,000 for the foundry property. This offer was never authenticated and the name of the offerer was not disclosed.

Petitioner never publicly offered or advertised its foundry property for sale. It was concerned with getting a friendly landlord to lease the property back to it, as there was never any intention on the part of petitioner to discontinue its foundry operations.

After the proposed transaction with Missouri">*76 Baptist Hospital was rejected by the Hospital, William Fitch, who was a member of the board of managers of Missouri Baptist Hospital and also of the board of trustees of William Jewell College, asked and obtained petitioner's permission to offer the property on a sale and lease-back basis to William Jewell College. William Jewell College was a stockholder of petitioner corporation. E. S. Pillsbury, president of petitioner, has been a member of the board of trustees of William Jewell College for the past 40 years. Pillsbury welcomed the suggestion as to William Jewell College and informed Fitch that the transaction would have to be closed by early December 1943.

OPINION.

Petitioner corporation as of December 1, 1943, conveyed certain foundry property described in our findings of fact ">*591 to the Trustees of William Jewell College. The consideration stated in the deed was $ 150,000, which amount was paid in cash to petitioner. It is stipulated that the adjusted basis of the property was $ 531,710.97, and that the property was used in petitioner's business. As of the date of the conveyance petitioner leased back from the Trustees of William Jewell College the same property. ">*77 It is petitioner's position that it incurred a deductible loss in 1943 of $ 381,710.97 under section 112 (a), ^{sections 112 (b) (1)}1950 U.S. Tax Ct. LEXIS 54">*78 and 112 (e), 1950 U.S. Tax Ct. LEXIS 54">*79 Respondent asserts, and petitioner does not dispute, that the leasehold received by petitioner, the lessee, to the foundry property herein constituted "a leasehold of a fee with 30 years or more to run." (See Regulations 111, section 29.112 (b) (1)-1, supra.) The indenture of lease provided:

* * * the term of this lease shall be divided into eight periods, the first of which shall be for twenty-five (25) years, and the seven remaining periods shall each be for ten years and shall run consecutively, so as to make this lease continuous in its operations from the beginning until its final termination; 15 T.C. 581">*592 provided that the lessee shall have the absolute power to terminate this lease at the end of any one of said eight periods, as hereinafter set forth.

There seems no question, therefore, but that the lessee, petitioner, received a lease for a term of 95 years, subject only to its, the lessee's, right of cancellation. It is not disputed that petitioner was "not a dealer in real estate". (See the cited regulations.)

But petitioner urges that the foundry property was not "exchanged" for the leasehold in that the transaction consisted of a sale of the property to William Jewell">*80 College for $ 150,000 in cash, and a leaseback by the College to petitioner. To be sure, the only consideration stated in the deed conveying the property was the sum of $ 150,000. But in the special meeting of petitioner's board of directors on December 9, 1943, at which the proposed transaction was approved, petitioner's board of directors specifically adopted a resolution that "as a condition of said sale of property and rights, this corporation will acquire from Trustees of William Jewell College, a Missouri Corporation, an Indenture of Lease." The term and rentals of the lease in the resolution were identical with those incorporated in the actual indenture of lease. The facts clearly show, and petitioner agrees, that the foundry property was necessary in its business and that there was thus never any intention on petitioner's part to discontinue its foundry operations. Hence it is indisputable that petitioner would have made no sale unless along with such sale it could receive a leaseback on the property. Thus the successive steps of sale and lease-back were integrated parts of a single transaction and accordingly that transaction must be adjudged to have consisted of an ">*81 exchange of real property for cash and a leasehold.

But petitioner contends that "if the transaction be reduced to its substance", it was not an exchange, but "a sale of the fee in the foundry property with the leasehold reserved." However, the facts show, and we see no justification for disregarding them, that petitioner conveyed to William Jewell College a fee simple estate in possession, not in reversion, and that from that estate in possession William Jewell College executed a lease to petitioner.

But, petitioner argues, the type of leasehold contemplated by Regulations 111, section 29.112 (b) (1)-1, supra, "is one already in existence -- as the usual 99 or 999 year lease possibly partly expired -- which can be the property of one person and can be exchanged for real estate belonging to another. Here there was at no time one party with a leasehold and another with real estate." We see no merit in this argument. There is no requirement in the cited regulation of prior existence or of partial expiration for a leasehold to be considered property of like kind with a fee. There is no reason why a leasehold at the beginning of its term may not be so considered. Furthermore, ">*593 ">*82 there is no requirement in the statute or regulations that for a transaction to constitute an exchange under section 112 (b) (1), both parties to the transaction must own the properties to be exchanged before the transfer of either property is made. We see no reason why one party may not "exchange" property, within the meaning of the statute, for property the other party is to acquire simultaneously or thereafter. We think that the test of an exchange is not whether the transfers are simulteneous but whether they are reciprocal. As we have already pointed out, petitioner only transferred the foundry property pursuant to resolutions of its board of directors that it receive cash and a lease in return.

But petitioner contends that a fee in property can not be property of like kind with a lease in the same property. We do not agree. There is no requirement in the statute or the regulations that to constitute an exchange of properties of like kind the properties exchanged must not be properties or rights in the same property. Previous decisions of this Court and of the Board of Tax Appeals have, if not explicitly, at least implicitly, rejected the idea that there is such a requirement. ">*83 In Standard Envelope Manufacturing Co., 15 T.C. 41, where the taxpayer sold and subsequently leased back certain property, this Court, though regarding the sale and lease-back as "one interrelated transaction," held that since the lease was for a term of less than 30 years, it therefore "was not the equivalent of a fee under the terms of section 29.112 (b) (1)-1 of Regulations 111." In Midfield Oil Co., 39 B. T. A. 1154, the taxpayer contended that "the exchange of the Holmans oil and gas payment due out of oil and gas to be produced from the Mitchell lease for the Dawson overriding oil and gas royalty out of the Mitchell lease" was a nontaxable exchange of properties of like kind under section 112 (b) (1). The Mitchell lease had an area of 2.6 acres on which one producing oil well was situated. The Board held that the exchange was not nontaxable, simply on the ground that the rights were substantially different and not of like kind. The implication is that if the rights had been substantially similar, even though from the same lease on the same piece of property, the Board would have held the transaction to be an ">*84 exchange of properties of like kind.

Petitioner cites Pembroke v. Helvering (CA-DC, 1934), 70 Fed. (2d) 850; Skemp v. Commissioner (CCA-7, 1948), 168 Fed. (2d) 598, and Imperator Realty Co., 24 B. T. A. 1010, to support his position that the transaction here was not an exchange. These cases are not applicable. In Pembroke v. Helvering, supra, the taxpayer leased certain real estate to a tenant for a term of 99 years at an annual rental. As part of this transaction the taxpayer also received from the lessee a conveyance in fee of certain other real estate subject to a mortgage. ">*594 The court held that there was no exchange but that the value of the equity in the premises conveyed to the taxpayer at the beginning of the term constituted in effect a payment of rental and was taxable accordingly. Here it would be plainly absurd to regard the conveyance by petitioner of the fee itself in the foundry property as a mere payment of rental on the lease to that same property, nor do we understand petitioner to advocate any such theory. Such a theory">*85 would, even if otherwise tenable, leave unexplained the purpose of the payment to petitioner of $ 150,000.

In Skemp v. Commissioner, supra, it was held that the rents paid under a sale and lease-back arrangement were deductible by the lessee, a question not at issue here.

In Imperator Realty Co., supra, it was held that the assignment of a second mortgage on a certain piece of property in part satisfaction of the sales price of another piece of property was not an exchange of properties of like kind. Clearly that holding has no application to the facts here.

Petitioner does not challenge the validity of Regulations 111, section 29.112 (b) (1)-1, supra, directly but he does argue that "the lease, even if it could be said to have been made in exchange for the fee simple title, is not 'property' within the meaning of section 112 (b) (1)". However, it is fundamental that a lease of real estate is property in the hands of the lessee. Am. Jur., "Taxation," para. 435. Moreover, we regard the 95-year lease herein as property of like kind with real property within the meaning of section 112 (b) (1) of the code. Though">*86 Tiffany, Real Property, para. 3, points out that leaseholds are personal property under the common law, it adds:

* * * the courts frequently, however, use the expressions "real estate" and "real property" in a broad sense as applicable to any estates in land, whether freehold or less than freehold, as well as to land itself, regarded as the object of rights. And such use of these expressions by the legislatures is exceedingly frequent, * * *.

Here regulations 111, section 29.112 (b) (1)-1, plainly recognizes as an exchange of properties of like kind the exchange of a leasehold of a fee with 30 years or more to run for real estate, and, as we have pointed out, we regard the transaction here as such an exchange. Furthermore, we do not consider the validity of the cited regulation as open to challenge. The validity of Regulations 94, article 112 (b) (1)-1, in all material respects identical with Regulations 111, section 29.112 (b) (1)-1, was upheld in Commissioner v. Crichton (CCA-5, 1941), 122 Fed. (2d) 181, though there was no question in that case of an exchange of a leasehold of a fee with 30 years or more to run for real estate. The provision">*87 in the regulations administratively classifying ">*595 a leasehold of a fee for 30 years or more as property of like kind with real estate within the purview of the taxing statute was adopted by the Commissioner in his regulations relating to the Revenue Act of 1924 (Regulations 65, article 1572) and such construction has received successive reenactment in subsequent regulations promulgated by the Commissioner. The provision in the statute that no gain or loss be recognized if property held for productive use in trade or business or for investment is exchanged for property of a like kind was first enacted as section 202 (c) (1) of the Revenue Act of 1921 and has been reenacted in successive revenue acts since that time. The long-continued administrative construction has thus been given the force of law by the reenactment of the statutory provision without material change. Commissioner v. Wheeler, 324 U.S. 542">324 U.S. 542; Helvering v. Reynolds Tobacco Co., 306 U.S. 110">306 U.S. 110; United States v. Dakota-Montana Oil Co., 288 U.S. 459">288 U.S. 459; Brewster v. Gage, 280 U.S. 327">280 U.S. 327.">*88

It is accordingly our holding that petitioner having exchanged its foundry property for a leasehold with a term of 95 years and $ 150,000 in cash, respondent did not err in disallowing the claimed loss of $ 381,710.97 in 1943 here in question. Despite the receipt of cash the claimed loss is not recognizable under section 112 (e) of the Code, supra, the exchange being otherwise within the provisions of section 112 (b) (1) of the Code, supra, and Regulations 111, section 29.112 (b) (1)-1, supra.

The second issue in this proceeding, which is dependent on our disposition of the first issue, is whether, if the claimed loss is not allowed, petitioner is entitled to depreciation on the foundry building or on the lease after December 1, 1943, and in what amount for 1943. Since petitioner was only the lessee of the foundry property after December 1, 1943, it is not entitled to any depreciation on the foundry building after that date. Weiss v. Wiener, 279 U.S. 333">279 U.S. 333. However, petitioner is entitled to depreciation on the leasehold which it acquired in exchange for the foundry property. City Nat. Bank Bldg. Co. v. Helvering (CA-DC, 1938), 98 Fed. (2d) 216.">*89 Section 113 (a) (6) of the code provides that the basis for gain or loss of property acquired on a tax-free exchange "shall be the same as in the case of the property exchanged, decreased in the amount of any money received by the taxpayer." Regulations 111, section 29.113 (a) (6)-1, makes similar provisions. These provisions apply also to the basis for depreciation of property acquired upon an exchange. Bureau Bulletin "F", January 1942. The adjusted basis of the foundry property on December 1, 1943, the date of the exchange, being $ 531,710.97, and the amount of money received by petitioner being $ 150,000, the basis for depreciation of the leasehold on December 1, 1943, is $ 381,710.97. Petitioner ">*596 is entitled to depreciation thereon, not over the useful life of the foundry building on the land remaining on December 1, 1943, as contended by petitioner, but over the 95-year term of the lease. City Nat. Bank Bldg. Co. v. Helvering, supra;Minneapolis Security Bldg. Corp., 38 B. T. A. 1220. The deduction for December 1943 is computable as follows:

1. Basis of leasehold, Dec. 1, 1943	$ 381,710.97
2. Term of leasehold 95 x 12	1,140 months
3. Allowable depreciation for Dec. 1943 (Item 1 divided by
item 2)	334.83

">*90 We accordingly hold that petitioner is entitled to a deduction for depreciation of its leasehold of $ 334.83 in 1943.

Decision will be entered under Rule 50.

LEECH

Leech, J., concurring: Assuming there was an "exchange," I think the petitioner, on this record, has failed to establish the fact of a loss. On this ground I would decide the case, as it has been decided, for the respondent.

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Footnotes

• 1. Tax anticipation notes $ 1,900,000.00; Series G bonds $ 100,000.00 post war refund $ 190,000.↩

• 2. 90 day 2 1/2 percent notes:

  $ 100,000.00 Boatmen's National Bank due Jan. 20, 1944.

  $ 300,000.00 Mercantile-Commerce Bank due Jan. 20, 1944.

  $ 100,000.00 Chase National Bank due March 6, 1944.

  $ 300,000.00 Mercantile-Commerce Bank due March 6, 1944.↩

• 3. Actual 1943 Federal income, declared value excess profits and excess profits tax liability determined by Commissioner $ 1,592,298.83.↩

• 1. SEC. 112. RECOGNITION OF GAIN OR LOSS.

  (a) General Rule. -- Upon the sale or exchange of property the entire amount of the gain or loss, determined under section 111, shall be recognized, except as hereinafter provided in this section.

  [The amount determined under section 111 is the excess of the adjusted basis over the amount realized.]↩

• 2. (b) Exchanges Solely in Kind.

  (1) Property held for productive use or investment. -- No gain or loss shall be recognized if property held for productive use in trade or business or for investment (not including stock in trade or other property held primarily for sale, nor stocks, bonds, notes, choses in action, certificates of trust or beneficial interest, of other securities or evidences of indebtedness or interest) is exchanged solely for property of a like kind to be held either for productive use in trade or business or for investment.↩

• 3. (e) Loss From Exchanges Not Solely in Kind. -- If an exchange would be within the provisions of subsection (b) (1) to (5), inclusive, or (10), or within the provisions of subsection (1), of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain or loss, but also of other property or money, then no loss from the exchange shall be recognized.↩

• 4. Sec. 29.112 (b) (1)-1. Property Held for Productive Use in Trade or Business or for Investment. -- As used in section 112 (b) (1), the words "like kind" have reference to the nature or character of the property and not to its grade or quality. One kind or class of property may not, under such section, be exchanged for property of a different kind or class. The fact that any real estate involved is improved or unimproved is not material, for such fact relates only to the grade or quality of the property and not to its kind or class. * * *

  No gain of loss is recognized if * * * (2) a taxpayer who is not a dealer in real estate exchange city real estate for a ranch or farm, or a leasehold of a fee with 30 years or more to run for real estate, or improved real estate for unimproved real estate, * * *↩