Black Hardware Co. v. Commissioner

BLACK HARDWARE CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Black Hardware Co. v. Commissioner Docket No. 16790. United States Board of Tax Appeals 16 B.T.A. 551; 1929 BTA LEXIS 2562; May 14, 1929, Promulgated *2562 Amounts expended by the petitioner in raising the floor of its building and rearranging shelving and bins therein, held to be capital expeditures. Kenneth N. Parkinson, Esq., Frank K. Nebeker, Esq. and Walter G. Moyle, Esq., for the petitioner. Bruce A. Low, Esq., and George S. Herr, Esq., for the respondent. MARQUETTE *551 This proceeding is for the redetermination of a deficiency in income and profits taxes asserted by the respondent for the fiscal year ended June 30, 1920, in the amount of $11,500.91. The petitioner alleges that the respondent erred in disallowing as a deduction from gross income, as an ordinary and necessary business expense, the amount of $16,168.06 expended by the petitioner in the taxable year in raising the floor of its building and the sidewalk adjacent thereto, and in rearranging and reconstructing shelving and bins in the building. *552 FINDINGS OF FACT. The petitioner is a Texas corporation organized in 1910, and it is and has been since that time engaged in the hardware business at Galveston. At the time the petitioner was organized, or shortly thereafter, it purchased a three-story*2563 brick building, then about 70 years old, which it still owns and in which it conducts its business. About the year 1911 the petitioner removed the lower floor of the building and replaced it with a concrete floor laid on an earth fill. The height of the lower rooms was 16 feet and there were shelving and bins therein reaching from the floor to the ceiling. The lower floor grade was about 7 1/2 feet above sea level. The City of Galveston is located on the Gulf of Mexico and is so situated as to be in constant danger, during the months of August, September, and October of each year, of destruction from tropical floods and storms arising over the Caribbean Sea. It has been visited by such storms, with consequent loss and destruction of lives and property, on an average of about once every five years. The most recent storms were in the years 1900, 1911, 1915 and 1919. The petitioner sustained a heavy loss from the storm of 1915. There are no forms of insurance to protect property owners against losses of property and business occasioned by these storms. In the year 1919 a committee of business men of Galveston, among whom was the petitioner's president, was organized in conjunction*2564 with engineers from the War Department, to devise some definite program to protect the city from future storms. The investigators recommended, as the only means for such protection, that the level of the entire city be raised to a height of approximately 12 1/2 feet above sea level. This recommendation was accepted by the city. The plan adopted by the city to carry out the recommendations was to raise the entire level of the city with sand pumped from the bay, replacing sidewalks, streets, curbs, water, electric light, etc., at the expense of the city, the property owners to replace their floorings or to raise their building, or to do whatever was necessary to comply with the plans so adopted. The city did not immediately carry said plan into effect, and the petitioner in 1919, instead of waiting for the city to begin its work, proceeded to raise the lower floor level of its building approximately 4 1/2 feet, a sufficient height to protect it against the highest flood tide. This step was the only feasible one, because the building was so tied in with other buildings that it could not be separated and raised. The petitioner's building was divided into three sections and in order*2565 to raise the floor level to the requisite height work was done on one section at a time. Sand was placed on the old floor and tamped *553 so as to make it solid, and a new concrete floor was constructed on top of the sand. Upon completion of a section, bins and shelving were adjusted to conform to the reduced height of the lowered rooms, and stock placed therein, and the work was thus continued until the entire floor of the building had been raised. During the progress of the floor raising and before the third section had been raised, a violent storm visited Galveston, which flooded the unraised section of the petitioner's building and interfered with the due course of the petitioner's business, causing damage to hardware remaining in the unraised portion, and a heavy financial loss to the petitioner. The hardware in the raised portion sustained no damage. The cost of raising the floor in the petitioner's building was $13,252, and the cost of remodeling shelving, bins, etc., was $2,916.06. These expenditures were made in the fiscal year ended June 30, 1920. The effect of raising the first floor level was to reduce the cubic content of the lower rooms of the building, *2566 and it did not prolong the life of the building. The petitioner in its income and profits-tax return for the fiscal year ended June 30, 1920, deducted from gross income the said amounts of $13,252 and $2,916.06 as an ordinary and necessary business expense. The respondent disallowed the deduction. OPINION. MARQUETTE: This case presents the single issue of whether the expenditures made by the petitioner in the fiscal year ended June 30, 1920, as set forth in the findings of fact, should be allowed as deductions from gross income or capitalized. Stated in another way, were they ordinary and necessary expenses of carrying on the petitioner's business, or capital expenditures? The petitioner contends that the expenditures were made for repairs to its building; that they did not prolong the life of the building or increase its value, and that they should, therefore, be considered as ordinary and necessary business expenses. The respondent urges that they were for betterments and improvements and should be added to the petitioner's capital investment. The allocation of expenditures of the kind under consideration, as between capital and current expense accounts, often presents*2567 more difficulties in practice than in theory, for the reason that the line between repairs and maintenances, and betterments and improvements, is shadowy and indistinct. However, we are satisfied that the expenditures in question should be capitalized. It appears to be clearly established by the evidence that they did not prolong the life of the petitioner's building, and there is testimony to the effect that they did not increase its value, although it seems unreasonable that a *554 building so located as to be free from the menace of storms and floods is not more valuable than the same building, or the same kind of building, not so favorably situated. However, conceding that they did not prolong the life of the building, and assuming that they did not increase its value, they nevertheless were for alterations which were, as we conceive them, permanent betterments and improvements that rendered the building better suited to the purpose for which it was used. As the Supreme Court of the United States said in : It would seem as if expenditures for additions to construction and*2568 equipment, as expenditures for original construction and equipment, should be reimbursed by all of the traffic they accommodate during the period of their duration, and that improvements that will last many years should not be charged wholly against the revenue of a single year. * * * We think it is clear that instrumentalities which are to be used for years should not be paid for by the revenues of a day or year; and this is the principle of returns upon capital which exists in durable shape. The respondent's determination is approved. Judgment will be entered for the respondent.