DocketNumber: Docket No. 27660-87
Citation Numbers: 61 T.C.M. 2909, 1991 Tax Ct. Memo LEXIS 312, 1991 T.C. Memo. 269
Filed Date: 6/12/1991
Status: Non-Precedential
Modified Date: 11/21/2020
*312
MEMORANDUM FINDINGS OF FACT AND OPINION
Respondent determined a deficiency in petitioners' Federal income tax liability for the calendar year 1983 in the amount of $ 2,842. The sole issue for decision is whether petitioners are entitled to an investment tax credit under section 46(e)(3)(B) 1 in connection with the purchase during 1983 of compressed gas cylinders for lease to unrelated parties. More specifically, as applied to this case, we must decide whether the terms of the leases entered into are less than one-half of the useful life of the property.
*313 FINDINGS OF FACT
Some of the facts have been stipulated, and they are so found. This case is related to the investment at issue in
Prior to and during 1983, Brown Welding Supply, Inc. (Brown Welding), promoted investments to a number of individuals by means of which the investors could purchase compressed gas cylinders from manufacturers and, pursuant to agreements with Brown Welding for the management and leasing of the cylinders, lease the cylinders to third parties. Petitioner James N. Russell became involved in one such*314 investment. On March 21, 1983, he entered into an agreement with Brown Welding whereby he retained Brown Welding to assist in the purchase, repair, maintenance, valving, shipping, and renting of cylinders. In April 1983 petitioner, through Brown Welding, purchased 1,500 compressed gas cylinders from Chesterfield Cylinder Company, Inc. (Chesterfield), for a total amount of $ 212,750. The purchase was financed by petitioner's payment of 10 percent in cash, with the remainder payable in installments that totaled $ 2,766 per month, pursuant to three security agreements between petitioner and Chesterfield. Petitioner's obligations under the security agreements were satisfied in full on April 20, 1987, and July 31, 1987. On September 22, 1982, 2 petitioner entered into an agreement to rent the cylinders to Coulter Welding Supply, Inc. (Coulter), and on October 1, 1982, petitioner entered into a similar rental agreement with Greene Welding Supply, Inc. (Greene). Coulter and Greene were unrelated parties dealing at arm's length with petitioner through Brown Welding. Coulter and Greene are each engaged in the welding supply business, and their major business categories are: (a) The*315 sale of welding and cutting equipment, industrial tools and products, and electrodes and supplies (48 percent of revenues); (b) the sale of industrial, medical, and specialty gases (31 percent of revenues); and (c) the rental of compressed gas cylinders (17 percent of revenues). The remaining 12 percent of revenues is derived from delivery charges.
Under the rental agreements with Coulter and Greene, petitioner agreed to rent compressed gas cylinders in exchange for per cylinder rental fees that totaled $ 2,645 per month, subject to cost of living adjustments. 3 At no time could the rental exceed 70 percent of the rental charged by a company related to Union Carbide, which was*316 a dominant supplier of cylinders and the gases contained therein at the time. Petitioner was to pay 25 percent of the rental payments he received to Brown Welding. The lessees had options to purchase any or all of the cylinders at then-current prices adjusted in relation to the number of months the lessees had made payments under the leases. With regard to the length of their terms, the rental agreements provided in pertinent part: 2. This Agreement shall be effective as of the date hereof. The initial term of this agreement shall be five (5) years ("Initial Term") from the Delivery Date specified in Paragraph 4 of this Agreement,
The compressed gas cylinders at issue are portable and weigh between 116 and 146 pounds each. They consist of a metal cylinder, with collar and cap, fitted at one end with a replaceable valve for regulation of the flow of gas. They were ordered in a variety of colors specified by Coulter*318 and Greene. They were marked with the name "Coulter Welding" and "Greene Welding." Each cylinder is identified by a serial number stamped thereon. The gas cylinders, other than the attached valves, have no movable parts and are quite durable. They have a physical life of over 35 years unless lost or unusually damaged. All 1,500 of petitioner's cylinders were placed in service in 1983. The gas cylinders leased by petitioner to Coulter and Greene were delivered directly from the manufacturer to the lessees. The cylinders leased by petitioner to Coulter and Greene were released on a monthly basis by Coulter and Greene to their customers to store the gases which they purchased from Coulter and Greene.
Petitioners filed their Federal income tax return for the taxable year 1983 on May 31, 1984. It was prepared on the cash receipts and disbursements method of accounting. On that return petitioners claimed an investment tax credit in the amount of $ 22,216, $ 21,275 of which was based upon Mr. Russell's purchase and lease of the aforementioned gas cylinders. On May 19, 1987, respondent timely issued to petitioners a notice of deficiency which disallowed the portion of the investment*319 tax credit taken on petitioners' 1983 return that was in connection with the gas cylinders.
Petitioners timely filed a petition with this Court. In their petition, petitioners alleged that respondent incorrectly disallowed their investment tax credit, that assessment of the deficiency was barred by the statute of limitations, and that respondent erred in conducting a second inspection of petitioners' books of account in violation of section 7605(b). The parties have stipulated that respondent properly instituted the examination of petitioners' income tax liability for 1983 as required by section 7605(b) and that the notice of deficiency upon which the instant case is based is not barred by the statute of limitations. They also have stipulated that the testimony in
OPINION
The parties are in agreement that the sole issue to be decided herein is whether petitioners are entitled to an investment tax credit under section 46(e)(3) in connection with Mr. Russell's purchase of the cylinders. That section allows an investment tax credit to a noncorporate lessor only where either the property subject to the leases has been manufactured or produced by the lessor (which is not the case here), or where the terms of the leases are less than 50 percent of the useful life of the subject cylinders. 4 Thus, our determination depends upon our findings concerning the terms of the leases and the useful life of the cylinders for purposes of section 46. For the reasons stated below, we need only to reach the first question as to the terms of the leases, for in this case it is dispositive.
*321 In our decision on remand in
Petitioners argue that the testimony of Mr. Horejsi, the president and chief executive officer of Brown Welding, shows that petitioner (through Brown Welding) intended to renegotiate the price at which the cylinders would be rented at the end of the 5-year initial term. This requires us, they contend, to treat the lease as being subject to a 5-year term. However, we do not read Mr. Horejsi's testimony to say that the leases would clearly be terminated at the end of the initial term; rather, he stated that "it was our intent that as soon as we felt the economic conditions would allow, we intended to get our rental rate back up to the same rate that Union Carbide was charging." Economic conditions being what they are, we cannot read this self-serving statement to be a clear expression of Brown Welding's or petitioner's*323 intent at the time the leases were entered into to cancel the leases at the end of the 5-year initial term and renegotiate the leases at a higher price. To the contrary, the testimony of the president of the lessee in
Despite the identical nature of the facts before us and those in
We hold that
We further note that
*327 For these reasons, the lease terms were in excess of one-half of the useful life of the cylinders, and petitioners do not qualify for the investment tax credit.
1. Unless otherwise noted, all section references are to the Internal Revenue Code of 1954 as amended and in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. Because the parties have not done so, we attach no significance to the fact that the rental agreements were entered into prior to petitioner's agreement with Brown Welding or petitioner's purchase of the subject cylinders. Under the terms of the rental agreements, petitioner was not obligated to deliver any cylinders if unable to do so.↩
3. There appears to be an unexplained discrepancy in the record between the total number of cylinders purchased by petitioner (1,500) and the number leased by him to Coulter (1,000) and Greene (1,000). In connection with the Coulter lease, petitioner purchased 1,000 cylinders and agreed to lease the same number of cylinders to Coulter. However, in connection with the Green lease, petitioner purchased 500 cylinders, yet apparently was responsible for supplying Greene with 1,000 cylinders. We note in connection therewith that the Greene lease was entered into by petitioner and the Delmas A. Jackson Trust as lessors, and we assume that the Trust supplied the other 500 cylinders.↩
4. The parties have stipulated that the other requirement of section 46(e)(3)(B), that the deductions allowed to the lessor under section 162 exceed 15 percent of the rental income produced by the property, has been met.↩
5. See
6. The First Circuit does not agree with the
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