Westland Co. v. Commissioner

WESTLAND CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Westland Co. v. Commissioner Docket No. 19755. United States Board of Tax Appeals 15 B.T.A. 553; 1929 BTA LEXIS 2837; February 21, 1929, Promulgated *2837 LEASE - VALUATION OF. - The value determined for a long-term lease as of March 1, 1913. Edwin P. Mack, Esq., and C. F. Sammond, Esq., for the petitioner. J. F. Greaney, Esq., and Brice Toole, Esq., for the respondent. TRUSSELL *553 Petitioner in this proceeding seeks a redetermination of a deficiency in income tax for the calendar year 1925, asserted and advised of on July 24, 1926. Two errors are assigned (a) the failure of respondent, in determining the gain realized on a sale in 1925 of certain property, to allow a March 1, 1913, value for a long-term lease in excess of its cost when acquired prior to that date, and (b) the reduction of such cost by deduction of amounts representing exhaustion for years in which petitioner took no credit as against gross income on account of such exhaustion. Upon the hearing petitioner withdrew the last assignment of error and the matter is before us upon the one issue of the correct value for the lease in question as of March 1, 1913. FINDINGS OF FACT. Petitioner is a Wisconsin corporation with principal office at 390 Broadway, Milwaukee. For many years prior to January 13, 1912, a partnership*2838 known as Benj. M. Weil's Sons. Co. had conducted a real estate business in Milwaukee. On November 7, 1910, this partnership acquired for $50,000 from the estate of one Jacob Litt, a lease executed on March 31, 1896, for a term of 99 years from date, to a certain plot of land described as follows: The West Twenty-one (21) feet of Lots numbered Thirteen (13) and Sixteen (16), of Block numbered Sixty-one (61), of the Fourth (4th) Ward of the said City of Milwaukee, PROVIDED that North Ten (10) feet of the said tract * * *. This plot was occupied by a building known as No. 316 Grand Avenue, Milwaukee. This lease obligated the lessee to expend the sum of $10,000 within 10 years in the erection and improvement of a building on the premises to pay all taxes and other charges and *554 reserved a yearly rental of $1,500 during its term. It further provided that upon the expiration of the lease the lessor would purchase from the lessee the buildings then standing on the property, the price to be agreed upon, or, in case of inability to agree, to be determined by arbitration. On or about January 13, 1912, the partnership of Benj. M. Weil's Sons Co. caused the petitioner corporation*2839 to be organized with a total authorized capital stock of $50,000, conveyed to it the lease in question, together with other assets, and the total capital stock was thereupon issued to the several members of the partnership in proportion to their individual interests in such partnership. The lease was thereupon set up on petitioner's books in the sum of $50,000. Upon the acquisition of this lease by the partnership the land in question was occupied by a brick building of four stories built about 10 years previously by the prior lessee under the agreement of the lease as to expenditures for improvements. The average net earnings of said lease in subrentals for the calendar years 1911, 1912, 1913, and 1914 were $3,675.88 per year, after deducting the $1,500 yearly ground rent and all expenses and taxes paid or payable by the lessee and after deducting amortization of the cost of the lease at the rate of $600 per year. On or about February 12, 1918, petitioner purchased from the lessors the fee of the leased property for the sum of $33,500 and thereupon canceled the lease. In 1920 petitioner expended $12,951.37 in improvements upon the property and did not charge upon its books*2840 or take credit for any part of this as expense in computing its net taxable income. For the calendar years 1918 to 1924, inclusive, petitioner has entered upon its books an allowance for depreciation of the buildings and improvements on the leased property in the total amount of $7,975.65. Petitioner sold said property in 1925 for $190,000. On November 7, 1910, the lease in question had a fair market value in excess of $50,000. Between that date and March 1, 1913, property values in Milwaukee in the vicinity of this property increased largely in value and on the latter date a further increase could reasonably be expected and the lease had a fair market value of $100,000. OPINION. TRUSSELL: The sole question at issue here is the value on March 1, 1913, of a lease paid in for stock of petitioner in 1912 and which had been acquired two years previously for $50,000 cash. The amount of petitioner's stock at par issued for the lease in question has no weight in the ascertaining of its value, as all of petitioner's stock was issued to the owners of the lease and in proportion to their interests therein. *555 The record discloses that the lease in question, executed*2841 in 1986 for a term of 99 years, was purchased in 1910 by the organizers of petitioner for $50,000. At that time it had approximately 86 years to run and the conditions imposed upon the prior lessees as to expenditures for improvements had already been complied with. The only obligation on the lessee from the date of purchase by the partnership was to pay taxes and a ground rent of $1,500 per annum. The lease also reserved title in the lessee to the improvements on the property at the time of its expiration and provided for their purchase by the lessor. At the time of its purchase the value of the property was such, as shown by the proof, as to make possible a rental netting a fair return on an investment in excess of $50,000. At that time there was a very marked and definite increase in progress in property values in the immediate vicinity, making it possible to determine that a very substantial increase in rentals could shortly be obtained. The testimony in respect to the purchase of this lease by the partnership of Benj. M. Weil's Sons Co. was that this partnership had long represented the Litt Estate in respect to its real estate in Milwaukee and in the final winding up*2842 of the estate had disposed of all other property with exception of the lease in question, and that the executors of the estate offered it to the partnership at $50,000 to close the estate. It is testified that it was recognized that the lease had a greater value than this but the executors wished to close the administration of the estate and were willing for that reason to sacrifice something, and, realizing that the lease was worth more than this figure, these agents were given the opportunity to take it over at that price to compensate them for services rendered it in disposing of other properties of the estate for which they had been able to obtain very handsome prices. Following the purchase of this lease property values increased rapidly in the immediate vicinity and the execution of long-term leases on such property became more frequent and such leases were often bought and sold and a recognized market for them existed. Numerous large building operations were either carried out, started, or determined upon and announced between that date and March 1, 1913. Other properties in the immediate neighborhood and less advantageously situated were leased for long terms for rentals*2843 enormously in excess of that received under the lease in question. Even in 1910 one such property, slightly smaller in size than the one here in question and only two doors away, rented under a lease for 25 years at a rental beginning at $5,000 and increasing during the term to $6,000 per annum. This latter property was an "inside lot" whereas petitioner's was on the corner of the alley and for this reason had a substantially greater value. In 1912 a property in the adjoining block two feet wider than petitioner's lot leased for 25 *556 years at $7,000, increasing to $8,000, with a privilege of extension for five years more at $10,000 per year. During the period in question the customary and usual basis for rental reserved by an owner under a long-term lease of this character was 5 per cent on the value of the land, and an increase in such value in properties in this neighborhood was anticipated and provided for by increases in the stipulated rental at certain periods in the lease term. The testimony as to values is by three witnesses who had for many years dealt in property in this vicinity and who qualified amply as having an intimate and accurate knowledge of such*2844 properties and their values and the values of long-term leases thereon. Two of these men ascribed a value to this property at March 1, 1913, of $123,000 for the land and $12,000 for the building, and the third $140,000 for the land, and $22,000 for the building. For the year 1913 the property was assessed for taxation at $122,500 for land and $12,000 for the building. Two of those witnesses testified to a reasonable value for the lease of $105,000 on March 1, 1913, and the third to a value of $100,000. We have carefully considered this testimony and the bases explained by the witnesses for the opinions expressed as to values both for the property and for the lease and conclude that on March 1, 1913, the lease in question had a reasonable market value of $100,000. The deficiency should be redetermined in accord with the foregoing findings of fact and opinion. Judgment will be entered pursuant to Rule 50.