DocketNumber： Docket No. 10887.
Citation Numbers： 10 B.T.A. 656, 1928 BTA LEXIS 4064
Judges： Murdock
Filed Date： 2/10/1928
Status： Precedential
Modified Date： 1/12/2023
*4064 In determining the gain or loss upon the sale of depreciable property in 1923, due allowance must be made for depreciation actually sustained for which deductions could have been taken, whether or not deductions therefor had been taken by the taxpayer in prior years.
*656 This is a proceeding for the redetermination of a deficiency in income tax for the year 1923, in the amount of $884, arising from the alleged error of the Commissioner in computing the profits on a sale of real estate.
FINDINGS OF FACT.
The petitioner is a citizen of the United States residing at Whitestone, Phoenixville, Pa.
Prior to March 1, 1913, she had acquired the premises at 1209 Walnut Street, Philadelphia, Pa. This property had a fair market value on March 1, 1913, of $112,500 for the land and $27,500 for the improvements, or a total of $140,000, which the petitioner avers is more than their value at the time acquired by her in 1903.
On May 1, 1923, the petitioner received in payment for said real estate $150,000, or $10,000 more than the fair market value of said*4065 real estate on March 1, 1913, which latter amount the petitioner returned in 1923 as a profit, or part of her gross income.
The Commissioner avers that these premises depreciated to the extent of $6,740.41 between March 1, 1913, and the date of sale. The deficiency is due to the Commissioner's having increased the petitioner's income by this amount, which is based on the March 1, 1913, value of improvements of $27,500 at the rate of 2 1/2 per cent for 9 years and 10 months beginning with March 1, 1913, and ending December 31, 1922.
The case was submitted on the pleadings.
OPINION.
MURDOCK: The petitioner contends that the Commissioner asserted in his answer that the property depreciated between March 1, 1913, and the date of sale and if this point is material it is an affirmative *657 averment by the Commissioner and the burden rests upon him to prove it.
It is true that Rule 30 of the Board provides that in respect of any new matter pleaded in his answer the burden of proof shall be upon the respondent. However, the averment of the respondent herein, with respect to depreciation, is considered to be surplusage and not to come within the meaning of the words*4066 "new matter" as used in the Board's rules. The depreciation which the Commissioner avers has been sustained by the petitioner on his premises is the very thing which produced the deficiency at the outset. It is set forth in the 60-day letter, made a part of the petitioner's appeal. The burden of proof being upon the petitioner and she having offered no proof that depreciation had not been sustained on the premises in question, this contention fails.
However, the petitioner then contends that, assuming that the Board has before it competent and adequate evidence of the depreciation of the property subsequent to March 1, 1913, such depreciation neither decreases the value as of March 1, 1913, nor increases the profit on the sale, and in support thereof cites the cases of , and
The latter case, for some reason went no higher than the district court, and the Board has already said in the , that it disagreed with the conclusion of the learned court in that case.
*4067 In , the Supreme Court reversed the judgment of the Court of Claims, cited by the petitioner, and held that under the Revenue Act of 1916, as amended by the Revenue Act of 1917, in determining gain or loss on the sale of property, a deduction must be made from the original cost on account of depreciation and depletion allowable in previous years with respect to the property.
The Board has already held in
Aside from the fact that the petitioner resides in Phoenixville, Pa., and the property is in Philadelphia, there is nothing to indicate whether or not this is a property on which depreciation could be taken, but at any rate no contention is made that the amount of $6,740.41, deducted by the Commissioner from the March 1, 1913, value, included any amount of depreciation which the*4068 petitioner was *658 not entitled to deduct in the several years, nor is there any indication in the record that it did include any such amount. The determination of the Commissioner must, therefore, be approved.