Douglas Properties, Inc. v. Commissioner

DOUGLAS PROPERTIES, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Douglas Properties, Inc. v. Commissioner Docket No. 40146. United States Board of Tax Appeals 21 B.T.A. 347; 1930 BTA LEXIS 1866; November 17, 1930, Promulgated *1866 The petitioner acquired by assignment, at a cost of $110,000 with an agreement to pay a fixed rental, the unexpired terms of two leases on real property and thereafter during the same year conveyed the whole of the unexpired terms of the leases for a consideration of $50,000 and an increased annual rental. Held: (1) That the latter conveyances were not assignments or contracts of sale but created the relation of landlord and tenant between the parties thereto. (2) That the amount received by petitioner on the execution of the instruments is taxable income and not a return of capital. H. J. Richardson, Esq., and Harold R. Young, Esq., for the petitioner. Maxwell E. McDowell, Esq., for the respondent. ARUNDELL *347 The petitioner seeks the redetermination of a deficiency of $14,096.21 in income tax for the fiscal year ended May 31, 1925. The issue is whether the sum of $50,000 received on the execution of certain instruments covering leasehold interests of the petitioner is income to the petitioner or a return of capital to be considered in determining the loss sustained on the transactions. FINDINGS OF FACT. The petitioner, *1867 a Florida corporation, on or after June 1, 1924, but before March 21, 1925, acquired by purchase from the John M. Burdine Realty Co., at a cost of $110,000, with an agreement *348 on its part to pay in addition thereto a rental of $17,800 per year, the unexpired term of two 99-year leases covering certain described real property situated in Miami, Fla. One of the leases acquired, covering so-called "Hood property," was dated October 20, 1920, and the other, covering premises designated as the "Hahn property" was dated August 31, 1916. At a special meeting held on March 14, 1925, the board of directors of petitioner adopted the following resolutions respecting the properties: Be it further resolved: That this corporation also lease to the said Flagler Street Company all of its leasehold estate and interest in what is known as the Hahn property for the period commencing July 1, 1925, and ending September 1, 2015, said land being described as follows: The North 25 feet of lots 19 and 20, Block 122, North, City of Miami, Florida, the rentals to be paid are $4,800 up to December 31, 1926, and thereafter $4,200 per year, and out of the money as received this corporation*1868 is to pay rentals due Florence G. Hahn and husband, named as lessors in said lease. Be it further resolved: That this corporation will lease to the said Flagler Street Company that property known as the Hood lease, being a leasehold estate of this corporation in and to a 99 year lease on the south 95 feet of lots 19 and 20, Block 122 North, City of Miami, Florida, for the annual rental of $28,000 a year, the rental period to commence April 1, 1925, and end November 1, 2019, and out of the moneys received this corporation is to pay the rentals due the lessors in said lease. Be it further resolved that the said leases to be executed shall be subject to such conditions, covenants and agreements as to the President and Secretary of this corporation shall seem proper. Be it further resolved that this corporation does hereby empower its president and secretary to cause said leases to be prepared and that the same be executed and acknowledged by said President and Secretary. By separate instruments executed on March 21, 1925, the petitioner transferred the unexpired term of the leases to the Flagler Street Co. for a consideration of $50,000, and an agreement to pay, as "rental, *1869 " the amounts set out in the above resolutions. Article II of the instruments provided in part as follows: The owner [petitioner], for and in consideration of the rents, covenants, agreements and conditions hereinafter mentioned and required to be done and performed on the part of the Tenant, has and by these presents does let, lease, rent and demise unto the Tenant for a term to commence on April 1, 1925, and to end November 1, 2019, all and singular the right, title, interest and leasehold estate of the Owner in and to the following described lands situate, lying and being in the City of Miami, County of Dade, State of Florida, described as follows, to-wit: * * * TO HAVE AND TO HOLD all and singular the above described lands and leasehold estate of said Owner, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging to in any wise appertaining *349 unto the said Tenant for the said period aforesaid, unless this lease be sooner terminated by reason of the lease being cancelled on account of some default done or suffered to be done by the Tenant as hereinafter provided. The Flagler Street Co. agreed in the instruments, among*1870 other things, to pay, in addition to the fixed annual rentals, all taxes, assessments, levies and charges levied or imposed upon the properties on and after April 1, 1925; to keep, at its expense, all improvements on the properties in good substantial repair and order; to insure the buildings on the premises against loss and damage by fire, and tornado; to comply with all of the agreements required to be performed by the lessees under the original Hood and Hahn leases except the payment of rent as provided for therein. The instruments also contained provisions to the effect that upon breach of any of the covenants the "leases" would, at the option of the petitioner, become null and void and give the petitioner the right to reenter and take possession of the premises, including any improvements erected by the tenant, and no transfer or assignment of the "leases" would relieve it of its obligation to pay the rentals provided for. The petitioner kept its books and filed its returns on the basis of cash received and disbursed. In its return for the taxable period the petitioner claimed the sum of $60,000, being the difference between the amount paid for the leases at the time of*1871 their acquisition, and the sum paid by the Flagler Street Co. at the time of their transfer to it, as a loss sustained in the sale of the leaseholds. The respondent refused to allow the claimed deduction on the ground that the instruments entered into on March 21, 1925, with the Flagler Street Co. were not contracts for the sale of the petitioner's leasehold interests in the properties but subleases, and treated the sum of $50,000 received on the execution of the documents as income, thereby increasing petitioner's income by $110,000. OPINION. ARUNDELL: The decision of the question raised herein turns upon whether the agreements entered into on March 21, 1925, between the petitioner and the Flagler Street Co. are assignments or contracts of sale of the leasehold interests of the former in the properties, as contended by it, or subleases as the respondent concluded. The conveyances having transferred to the Flagler Street Co. all of petitioner's leasehold estate in the properties for the remainder of the terms of the leases, leaving no reversion in the transferor, undoubtedly created assignment of the terms as between the original lessor and the Flagler Street Co. Our problem*1872 here, however, is to determine *350 the relationship the instruments created between the parties thereto. It is well settled that an instrument may in law create an assignment of the term of a lease as between the original lessor and the assignee, and at the same time the relation of landlord and tenant between the assignee and his lessee, if the parties so intend, even though the demise be for the whole of the unexpired term of the lease, and the lessee be divested of all revisionary rights. The rule is thus stated in ; : But, as between the original lessee and his lessee or transferee, even though the original lessee demises his whole term, if the parties intend a lease, the relation of landlord and tenant, as to all but strict reversionary rights, will arise between them. The effect, therefore, of a demise by a lessee for a period equal to or exceeding his whole term, is to divest him of any reversionary right, and render his lessee liable, as assignee, to the original lessor; but at the same time the relation of landlord and tenant is created between the parties to the*1873 second demise if they so intended. Tayl. Landl. & Ten. (7th Ed.) 109, note s, 16, a, 5; 1 Washb. Real Prop. (4th Ed.) 515, note 6; ; ; ; ; Wood, Landl. & Ten. (Bank's Ed.) § 347. These rules are fully recognized in this state. ; ; ; . Other authorities are to the same effect. ; ; ; ; ; ; ; 16 R.C.L. Landlord and Tenant, § 320; Thompson on Real Property, § 1373. *1874 The resolutions adopted by the directors of petitioner on March 14, 1925, specifically provide for the leasing of the properties, which clearly indicates that they intended its officers to enter into such agreements rather than assignments. The contracts of March 21, 1925, also contain clear evidence of an intention to create the relation of landlord and tenant between the parties thereto. The instruments carry the title of "lease"; the Flagler Street Co. throughout the contracts is referred to as the "Tenant"; the properties transferred are designated as the "leased premises" or "demised premises"; the amount to be paid each year during the terms of the conveyances is referred to as "rentals" and "lease money"; Article II contains the provision that "The Owner [petitioner] * * * has and by these presents does let, lease, rent and demise unto the Tenant * * *," terms which would probably not have been used had the parties intended the instruments to operate as assignments or contracts of sale; the contracts provide that the *351 "Tenant" shall have and hold the premises for the specified terms "unless this lease be sooner terminated by reason of the lease being cancelled*1875 * * *." Considering the instruments as a whole in connection with the prior action of petitioner's directors, we think there can be little doubt that, as between the petitioner and the Flagler Street Co., the intention was to create the relation of landlord and tenant and not merely to assign or transfer the leases. This holding is not contrary to that in ; affd., , for there it was clear from the terms of the instruments that the intent was to assign and not to sublease. When petitioner, by assignment, acquired the unexpired terms of the Hahn and Hood leases it acquired a capital asset. The cost thereof in the taxable year, $110,000, represented a capital expenditure exhaustible over the life of the asset. Had the petitioner acquired by purchase a specific building, making a down payment of $110,000 and then leased it, receiving a cash bonus in addition to the rents, there would be no question that such bonus constituted income. We fail to see where there is any distinction between such a case and the one before us. The payments made in either case would be merely a part of the price paid by the*1876 lessee for the right to use the property; it created no equity in the property in favor of the lessee and in no sense could it be said to be a return of capital to the lessor. In , the owner of a building leased it for a term of years at a stipulated monthly rental plus a cash payment of $20,000 which was received by the owner in 1920. We held that that amount was taxable income, saying in part: It is immaterial whether we call the $20,000 payment a bonus, additional rent payable in advance, or by any other term, it is a profit arising out of the transaction, to wit, the leasing of the property, and is taxable when received as the petitioner was on the cash receipts and disbursements basis. Petitioner is seeking to apply here the rule which permits the lessee to amortize the cost of securing a lease, or improvements on the property. The expenditure by the lessee represents a capital investment, thus differentiating the case from the one at bar. In , a lessee of certain real estate transferred all his interest in the lease to the taxpayer for a cash consideration. In the*1877 same year the taxpayer subleased the properties for stipulated annual rentals and in addition received the sum of $15,000. We held that amount to be income, saying: As pointed out hereinbefore, the lessee under a 99-year lease renewable forever, does not receive title to the property covered by the lease. Here, the petitioner became the lessee of the Spring and Water Street property and thereafter subleased the same. Any amount which he received under such sublease was income to him when received. *352 We are accordingly of the opinion that the respondent correctly disallowed the alleged loss and included in income the $50,000 received by petitioner on the execution of the leases. Decision will be entered for the respondent.