DocketNumber： Docket No. 100444.
Citation Numbers： 44 B.T.A. 94, 1941 BTA LEXIS 1384
Judges： Fossan
Filed Date： 4/8/1941
Status： Precedential
Modified Date： 11/21/2020
*1384 1. The amount of cash, diminished by expenses, received by lessor upon cancellation of lease constitutes income.
2. The value of the obligation of lessee to pay certain improvement bonds is not deductible from the cash payment.
3. The difference between the fair market value of an old building, situated on the land at the execution of the lease, and the fair market value of a new building, erected by lessee and acquired by lessor upon cancellation of the lease, is a proper offset to the cash received.
*95 This proceeding involves the income and excess profits taxes of the petitioner for the year 1937 in the sums of $11,150.36 and $5,452.13, respectively.
The single question is what, if any, taxable gains the petitioner realized from the cancellation of a 99-year lease on buiness property in Pasadena, California.
FINDINGS OF FACT.
The petitioner*1385 is a corporation, with offices in Pasadena, California.
By an agreement dated July 1, 1912, the petitioner leased to the Pasadena National Bank, now merged into the Security-First National Bank of Los Angeles (hereinafter called the bank) two city lots at Colorado Street and Broadway in Pasadena, for a period of 99 years. At the time of the agreement there was situated on the lots a brick building in good repair, containing three stores and having a fair market value of $10,000. The bank is a solvent and substantial institution. On June 29, 1940, its capital and surplus were $50,000,000.
The lease agreement provided that the bank should erect on the leased land a substantial building suitable for banking, office, or mercantile purposes, to become the property of the petitioner upon the termination of the lease. The rental was set at 5 percent of the ground value of the land for the First 10 years and thereafter at the same rate on the land as reappraised at 15-year intervals. The ground value fixed under the lease for the first 10 years was $90,000, and in 1937, at the time of the cancellation hereinafter mentioned, it stood at $135,000, having been fixed in 1922 by reappraisement. *1386 At that time the land was actually worth from $90,000 to $100,000.
The lease further provided as follows:
It is further understood and agreed as a part consideration for this lease, that the said lessee shall, before the same become delinquent, pay any and all taxes, assessments or liens that may be levied against or upon said property on or after March 1st, 1913, and during the life of this lease, and upon such payment, the said lessee shall furnish to the lessor a duplicate voucher or receipt for such payment. Said lessee shall also pay all charges for water, electricity or other service that may be rendered to or upon said property during the life of this lease.
It is distinctly understood between the parties hereto that the rental to be paid by the lessee to the lessor as herein provided, is based upon the agreement that the lessor shall at no time be called upon to expend any money whatever upon the premises herein leased, during the life of this lease, but that the lessee shall make any and all payments that may be required for any purposes whatsoever upon or against said property.
*96 The city of Pasadena improved Colorado Street under what was known as the*1387 "Mattoon" or "1925 Act", and issued "Acquisition and Improvement District No. 1 Bonds", to be fully paid over a period between October 1933 and October 1958, by assessments levied against the land in that district. The bond issue outstanding against the whole district on July 1, 1937, was $1,271,503.90. Of that amount, a certain definite proportion was levied against each "Zone" in the district. The petitioner's property was a part of "Zone C", about one-half a city block in extent, and comprising five parcels of land. The definite and fixed amount levied against this "Zone" and unpaid on July 1, 1937, when the lease was canceled, was $238,560. Of this amount, each of the parcels of land in "Zone C" was assessed its proportion of the payments to be made each year, basing such upon the city's assessed land values in that "Zone." Figured on the assessed values of land in that "Zone C", on July 1, 1937, when the lease was canceled, the petitioner's land's proportion was approximately $15,128.
The bank offered to cancel the lease by the payment of $40,000. The petitioner rejected the offer, but agreed on July 1, 1937, to accept $45,000. On July 2, 1937, the bank approved the*1388 counter proposal.
The lessee paid the assessments up to 1937; the petitioner in the cancellation of the lease agreement assumed the 1937 bond assessment and all remaining obligations for 1937 and in the future. The taxes for the year 1937, which were assessed to the lessee, were $1,941.30 for the county, and $1,533.74 for the city, making a total of $3,475.04, which included $579.85 on account of bond assessment. This whole amount was assumed by the petitioner in December 1937.
In consideration of the cancellation of the lease as of July 1, 1937, and the assumption of the payment of the bond assessments and taxes for 1937 and thereafter, the bank surrendered to the petitioner the future use of the property and the building, and paid the petitioner the $45,000 in cash. Petitioner paid out in commissions and expenses the sum of $1,200.
The combined value of the real property and the lease involved, as of July 1, 1937, based upon the assumption that the lease was to be continued on the terms then in effect, was $90,000.
The land value as of July 2, 1937, with the lease canceled and land owner assuming all the burdens of taxes, assessments, insurance, upkeep, etc., was $36,000. *1389 The value of the building on the premises when the lease was canceled was stipulated to be $9,000.
The building erected by the bank was designed and constructed specifically as a banking room. It had a 36-foot ceiling, contained reinforced concrete, and was equipped with steel vaults. On July *97 2, 1937, from $10,000 to $20,000 would have been required to remodel it into rentable commercial property. It would have cost $15,000 to demolish the building entirely and $10,000 to raze it to the basement level.
Immediately after the cancellation efforts were made to secure a tenant at an adequate rental, but they were unsuccessful. Certain temporary tenants were obtained at a nominal rental. The total rentals received by the petitioner were $100 during the remainder of 1937; $180 in 1938; $150 in 1939; and $300 in 1940. At the time of the hearing, December 4, 1940, there was no tenant.
The business and shopping center was rapidly moving eastward away from petitioner's property.
OPINION.
VAN FOSSAN: The petitioner contends that it realized no taxable gain from the cancellation of its lease with the bank but, on the contrary, sustained a loss in the transaction. *1390 The respondent seeks to tax the petitioner on the full amount of the cash received ($45,000 less fees and commissions of $1,200, or a net of $43,800) and also on the $9,000 representing the fair market value at the time of cancellation of the bank building erected on the leased land.
The petitioner contends that the correct criterion is a comparison of the petitioner's situation immediately before the cancellation of the lease with that thereafter; that the value of the land itself was $90,000 before and $36,000 after the transaction; that the petitioner received a net sum of $43,800 and thus had assets worth $10,200 less after the cancellation than before it. Further, it is urged that the value of the building on the land in 1912 was $10,000 and the value of the bank building in 1937 was $9,000; wherefore, petitioner suffered an additional diminution of $1,000 in assets.
The case of (affirming on this point ), presented a situation in some respects similar to that found here. There, by agreement, a deposit of $125,000 was retained by the lessor upon the cancellation*1391 of the lease. Such absolute possession of the deposit by the lessor is essentially the same as the receipt of $43,800, net, in cash by the petitioner. In that case the court held that the present worth of $125,000 was taxable income to the lessor and allowed no offsetting deductible loss by reason of the lessor's inability to re-lease the property. So here, the diminution in capital value of the petitioner's property is reflected in the decrease of prospective rentals therefrom. The failure to receive expected profits or profits equivalent to those theretofore received does not support a loss deduction. , and cases there cited.
*98 The petitioner cites and relies on ; and . But we are unable to find in those cases any support for petitioner's position on this phase of the case. The petitioner also cites . In *1392
If the case of (C.C.A. 7) is to be read supporting the taxpayer's contention, we must respectfully decline to foll0w it as did the Board.
The petitioner argues that the liability to pay $15,128 in bond obligations, payable by the lessee under the requirements of the lease but assumed by the petitioner upon its cancellation, should be deducted from the cash payment, thus producing additional loss from the transaction. The record does not show that the improvements for which the bonds were executed were not beneficial to the petitioner's property. In this situation we need not further consider the argument that the amount payable on the bond obligations is an allowable deduction. See , and cases there cited.
It is obvious from the facts that the acquisition in 1937 of the bank building, stipulated to be then worth $9,000 apart from the land, in place of a building worth at*1393 the time of demolition $10,000, resulted in no taxable gain. See