Parma Co. v. Commissioner

PARMA COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Parma Co. v. Commissioner Docket No. 14553. United States Board of Tax Appeals 18 B.T.A. 429; 1929 BTA LEXIS 2048; December 5, 1929, Promulgated *2048 Held, whether or not a loss is sustained by the taxpayer in any particular year as the result of the demolition of the whole or part of a building must be decided in the light of the facts in any given case, and any presumption arising from the act of the taxpayer in proceeding to raze the building and erect a new one, that taxpayer sustained no deductible loss, is rebutted by showing that the purpose of taxpayer in so purchasing the building was with a view of its actual use for a fixed and definite purpose, and that he did not thus use it because of latent defects which were not discovered at the time of purchase and had to demolish a good part of same on that account. A. C. Postel, Esq., for the petitioner. J. L. Backstrom, Esq., for the respondent. BLACK *429 This proceeding is an appeal from a deficiency asserted against the taxpayer for the year 1920 amounting to $2,711.57 and asks for a redetermination of the deficiency after the allowance of certain deductible losses claimed by the petitioner, which losses resulted from the demolition of parts of a building which petitioner intended at the time of purchase to use in a remodeled*2049 structure which it proposed to erect on the same site. FINDINGS OF FACT. The petitioner is a corporation duly organized under the laws of the State of California and its place of business is 721 State Street, Santa Barbara. During the taxable year, and several years prior thereto, the petitioner was engaged in the grocery business in the City of Santa Barbar, Calif., and its business had outgrown its quarters and it was in need of a larger building for purposes of expansion. To provide for this needed expansion it purchased a lot and building in February, 1920, which was in the same block where it was then located. It paid $45,499.32 for such lot and building. Such improved real estate was purchased with the intention of remodeling *430 the building then located thereon and using it when the remodeling was completed for the purpose of carrying on petitioner's grocery business. In arriving at the purchase price of $45,499.32, the part of the improvements thereon which petitioner intended to use in the proposed remodeled structure was considered to be worth $10,000 for such use. The building in question was a theatre building, the front part of which was a two-story*2050 structure and the back part, one-story. It was the purpose of petitioner to remodel the same into a one-story structure throughout by tearing out the front and building a new front, by lowering the walls of the two-story portion, tearing out the floor, which was a slanting floor, and constructing a new concrete floor, and other alterations. It was the intent of the petitioner to use in the remodeled building the side walls of the old building with the exception of lowering the walls of the two-story part, and also was to use the roof over the one-story portion. The value of such improvements at the time of purchase was $10,000 for such use, and such amount was included in the total purchase price of $45,499.32. When the contractor for the petitioner began the remodeling of the building it was found that the beams were rotten throughout the building and its condition in other respects was bad, and that the portion intended to be used could not be used except in part for the purpose for which it was purchased. The contractor was able to use the stone foundation up to the brick walls. He was able to use only a portion of the walls, which he intended to use, by reinforcing them*2051 with concrete, and the cost of this reinforcing with concrete was equal to the value of the walls which were left standing. When petitioner purchased said building and lot, it was estimated that the total cost of the property, including that which would have to be expended for remodeling, would run to between $60,000 and $65,000 and petitioner made arrangements with the bank to advance it that amount of money. Instead of costing $60,000 to $65,000, however, the total cost of the property after remodeling was completed was about $90,000. Not all of the extra expenditure incurred was due to the changed plans of remodeling, made necessary by the discovery of defects in the building purchased, but a substantial part of it was due to such cause. The foundation of the old building was worth $1,500 and the material salvaged was worth $250, and the remainder of the building which petitioner had intended to use in remodeling was a loss. In its income-tax return for the year 1920, the petitioner, in computing its net income for that year, deducted as loss the sum of $10,000 which it claimed was the cost of the portion of the building which it was compelled to demolish in the manner*2052 herein stated. This deduction was disallowed by the respondent. *431 OPINION. BLACK: The petitioner bases its claim for the deduction of $10,000 as a loss upon section 234(a)(4) of the Revenue Act of 1918. This section provides that in computing net income there shall be allowed as a deduction "losses sustained during the taxable year and not compensated for by insurance or otherwise if incurred in trade or business." The respondent has denied the claim upon the ground that it is not deductible as a loss under the provisions of the revenue act above cited. In the concluding paragraph of article 142 of Regulation 45, relating to the income tax, war-profits and excess-profits tax under the Revenue Act of 1918, on page 64, the Commissioner of Internal Revenue says: When a taxpayer buys real estate upon which is located a building which he proceeds to raze with a view to erecting thereon another building, it will be considered that the taxpayer has sustained no deductible loss by reason of the demolition of the old building and no deductible expense on account of the cost of such removal, the value of the real estate, exclusive of old improvements, being presumably*2053 equal to the purchase price of the land and building plus the cost of removing the useless building. We think the above cited regulation sets forth a sound rule, but whether or not a loss is sustained by a taxpayer as a result of the demolition of the whole or part of the building must be decided in light of the facts in any given case, and any presumption arising from the acts of the taxpayer in proceeding to raze the building and erecting a new one, that taxpayer sustained no deductible loss, is rebutted by showing that the purpose of taxpayer in so purchasing the building was with a view of the actual use of a part of the building and for a fixed and definite purpose and that he was not able so to use it because of latent defects which were not discovered at the time of purchase. Our opinion is that the facts in this case show that the petitioner purchased the property in question with the full intent of using a part of the building in the remodeled structure which it intended to use as a location for its business, and that the portion which petitioner so intended to use was of the value of $10,000 for such use, and that the necessary demolition of such part resulted in a loss*2054 to taxpayer in 1920 of said $10,000, except $1,750, which was the value of the foundation of the old building which he used and the material which he was able to salvage. There is some testimony in the record that the cost of tearing down the portion of the building which it was not intended to tear down at the time it was purchased was equal to the cost of the foundation saved and the value of the material salvaged, but we find that the evidence offered in this respect is not sufficient to establish that contention. *432 Our conclusion follows that petitioner did sustain a loss in the taxable year 1920 amounting to $8,250 and that such loss is deductible under section 234(a)(4) of the Revenue Act of 1918. ; ; ; ; . Judgment will be entered under Rule 50.