Vosburgh v. Commissioner

EDWIN VOSBURGH, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Vosburgh v. Commissioner Docket No. 25401. United States Board of Tax Appeals 23 B.T.A. 780; 1931 BTA LEXIS 1826; June 18, 1931, Promulgated *1826 Value of property at the time of its conversion to business uses determined for the purpose of computing the allowable loss on a subsequent sale. Alfred D. Dennison, Esq., for the petitioner. P. A. Bayer, Esq., for the respondent. ARUNDELL *781 In this proceeding for the redetermination of a deficiency of $3,774.75 in income tax for 1923 the error alleged is the refusal of respondent to allow a loss sustained in the sale of real property, originally acquired as a residence and in December, 1921, converted to business property. FINDINGS OF FACT. Petitioner acquired a lot for $593.75, and sometime thereafter in 1908 erected a large two-story frame house thereon known as 323 North Perry Street, Johnstown, N.Y. North Perry Street was then one of the best streets in Johnstown. The original cost of constructing the house was $10,806.25. During 1918, 1920 and 1921 he rebuilt the bath room and bed rooms, installed a new heating plant, and made other improvements and alterations to and in the house at a cost of $8,745. An additional sum of $700 was expended on the driveway and in paving the back yard. Material removed from the house in the*1827 course of the work had a salvage value of $60. Petitioner occupied the premises as a residence until December 31, 1921, when he rented the property by the month at a monthly rental of $50 or $60. A reasonable rental would have been $70 or $80 per month. Twelve per cent of its value is a fair return on residential property in Johnstown. In 1922 the property was listed with real estate brokers for sale at a price of $18,000. It was sold in January, 1923, for $9,000. In 1921 there was a railroad line adjoining the rear of petitioner's property, a tannery about 100 feet away on the opposite side of the street, and a retail gasoline station a few hundred feet away on the same side of the street. In 1922 two coal pockets were erected across the railroad tracks at the rear of petitioner's property, the tannery extended its plant from 75 feet from the sidewalk to about 10 feet, and the corporation operating the gasoline station erected additional tanks above the ground and started to wholesale gasoline. The property in 1921 and 1922 was assessed for city taxation purposes at $5,000 and in 1923 at $7,000. During the former years property in Johnstown was assessed at about 30*1828 per cent of its fair value, and in the latter year, at about 60 per cent. A fair market value of the property on December 31, 1921, was $13,000. A reasonable rate of depreciation thereafter is 3 per cent per annum. The value of the property at the date converted to business purposes was substantially less than its cost or March 1, 1913, value, plus subsequent capital expenditures thereon. *782 OPINION. ARUNDELL: The respondent concedes that, under , petitioner as a matter of law is entitled to a loss deduction if the evidence establishes the fact. Petitioner contends for a valuation of the property as of December 31, 1921, of $19,000, while the respondent claims that the value as of that date was not to exceed $9,000, the price for which the property was sold. Qualified real estate men were called by both parties, several by the petitioner, and one by the respondent. Those called by the petitioner set a value of $19,000, and the respondent's witness was as emphatic that $9,000 was the proper figure. There can be no doubt that the neighborhood where this property was located was being so changed by the invasion*1829 of business and industry that the value of homes located there was rapidly receding. Petitioner's witnesses were apparently of the opinion that the industrial invasion had not progressed to such an extent in December, 1921, as to seriously reduce the values, while the respondent's witness was of the opinion that the handwriting was already on the wall and a market existed for the property only at a very much lower figure than had theretofore prevailed. A year and a month elapsed between the date petitioner abandoned the property as a home and the date of sale. The property, though listed for sale in 1922 at $18,000, found no buyers; it was rented at from $50 to $60 per month. While that was said to be a low rental, $80 per month was the highest figure testified to as a proper rental. This capitalized at the rate of 12 per cent, said to be a proper return on real estate in Johnstown, would not have warranted a value even equal to that fixed by the respondent, and at which the property in fact was sold. But it is said that the sale price of the property was low. This may be true to some extent, but at the same time we are firmly impressed with the fact that petitioner's witnesses*1830 were entirely too optimistic in their statements of values as of December 31, 1921, and the fact that they could find no one interested to buy at the price fixed at $18,000, coupled with the fact that the property was finally sold for $9,000, rather clearly shows such to be the case. On the other hand, we are impressed with the fact that the property was continuing to slide in value during this period, and that as of December 31, 1921, the fair market price was more than it was 13 months later when sold. Taking into consideration the entire testimony, and without making further comments thereon, we have reached the conclusion that the fair market value of the premises as of December 31, 1921, was $13,000. This figure is less than cost or March 1, 1913, value plus subsequent *783 expenditures, and therefore the proper basis to be used in the circumstances. A rate of depreciation of 3 per cent should be used in determining the amount of petitioner's loss. Decision will be entered under Rule 50.