Terre Haute Electric Co. v. Commissioner

TERRE HAUTE ELECTRIC COMPANY, INC. (FORMERLY TERRE HAUTE TRACTION AND LIGHT COMPANY), PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Terre Haute Electric Co. v. Commissioner Docket Nos. 43767, 68897, 77066. United States Board of Tax Appeals 33 B.T.A. 975; 1936 BTA LEXIS 799; January 24, 1936, Promulgated *799 1. Dividends declared by petitioner and paid direct to petitioner's stockholders by petitioner's lessee as an obligation of the lease, held taxable income of petitioner, lessor. Rensselaer & Saratoga Railroad Co. v. Irwin,249 Fed. 726; certiorari denied, 246 U.S. 671; West End Street Railway Co. v. Malley,246 Fed. 625; certiorari denied, 246 U.S. 671; Gold & Stock Telegraph Co.,26 B.T.A. 914, followed. 2. Petitioner's claim for depreciation in the form of exhaustion, wear and tear on the property leased, is denied, as res adjudicata. Tait v. Western Maryland Railway Co.,289 U.S. 620; Cromwell v. County of Sac,94 U.S. 351, followed, and also under the provisions of the lease. Weiss v. Wiener,279 U.S. 333; Terre Haute Electric Co. v. Commissioner, 67 Fed.(2d) 697; certiorari denied, 292 U.S. 624; Atlantic Coast Line Railroad Co.,31 B.T.A. 730, followed. 3. Respondent's plea of res adjudicata to petitioner lessor's assignment of error to inclusion in its income*800 of its income taxes, for the payment of which the lessee was obligated under the lease, is sustained. Tait v. Western Maryland Railway Co., supra; Cromwell v. County of Sac, supra; Weiss v. Wiener, supra; Terre Haute Electric Co. v. Commissioner, Atlantic Coast Line Railroad Co., supra, followed. 4. Claim of petitioner, lessor, for allowance for obsolescence of assets leased for term of 999 years, denied. (a) Alternatively, petitioner's claim of loss on alleged abandonment of leased assets is denied. A. E. James, Esq., for the petitioner. Elden McFarland, Esq., for the respondent. LEECH *976 These proceedings, properly consolidated, seek review of deficiencies determined by respondent for the years 1927, 1930, and 1931, in the respective amounts of $23,433.90, $18,899.06, and $23,448.03. The issues framed by the pleadings are: (1) Whether dividends paid direct by the lessee of petitioner's property to its stockholders represent rental income to petitioner; (2) whether petitioner is entitled to deduct a reasonable allowance for exhaustion, wear and tear on its property*801 in respect to which it has granted a lease for 999 years under which the lessee is obligated to maintain the property in the condition in which it was when received; (3) whether, in determining net income of petitioner, there should be included an amount representing the income tax upon its income for the same year, its lessee having covenanted to pay such taxes for it; (4) whether petitioner is entitled to a reasonable allowance for obsolescence of its leased properties; or, in the alternative, (4)(a) whether petitioner sustained a loss upon its alleged abandonment of three railway lines in 1931. FINDINGS OF FACT. The parties hereto have filed formal stipulation as to certain facts, which stipulation, together with the exhibits attached thereto, is included herein by reference. Additional facts are found upon the evidence adduced. For the sake of continuity and a better understanding of the issues and decision, certain of the stipulated facts are set out below in addition to the facts found upon the evidence submitted. *977 The petitioner is an Indiana corporation originally organized under the name of Terre Haute Traction & Light Co. Its principal office and place*802 of business is in the city of Indianapolis. On or about March 25, 1907, petitioner leased to the Terre Haute, Indianapolis & Eastern Traction Co. all of its property, consisting of city and interurban traction lines, electric light and power and steam heating plants and systems, lands, franchises, and other property. During the year 1927, the Terre Haute, Indianapolis & Eastern Traction Co., lessee, was the owner of all the outstanding common capital stock of petitioner except 11 qualified shares held by directors. The above mentioned lease was for the term of 999 years from March 1, 1907, and is incorporated by reference in these findings of fact. It is the same lease and same corporate petitioner, involved as such in the proceeding before this Board in Docket No. 35860, the decision in which was affirmed on appeal to the Seventh Circuit Court of Appeals, and denied petitioner's claim for an allowance under this lease for depreciation resulting from exhaustion, wear and tear for 1922 and 1923. That decision also denied petitioner's contention that the amounts representing its income taxes, for the payment of which the lessee became obligated under the lease, were erroneously*803 included in petitioner's income for the years when such taxes became payable. That decision has become final. The properties of the petitioner leased to the Terre Haute, Indianapolis & Eastern Traction Co., as above described, were operated by the latter, pursuant to the terms of the lease until April 21, 1930, when these properties, together with other properties operated by the lessee, referred to, were placed in the hands of a receiver and were operated by him on behalf of the lessee and its creditors from that date to July 28, 1931, when its properties, including the aforesaid lease by petitioner, were conveyed by the receiver to the Public Service Company of Indiana. The Public Service Co. of Indiana thereupon took possession of and entered upon operation of the properties, including the properties leased by petitioner. Its use of the latter properties was subject to the conditions of the lease by the terms of the conveyance from the receiver. The leased properties of petitioner referred to have, at all times material hereto, consisted of street railway properties in the city of Terre Haute, Indiana, interurban lines from Terre Haute to Brazil, to Clinton, Sullivan, *804 and Paris, Illinois, as far as the Indiana-Illinois state line. These properties also included electric generating plants in Terre Haute and Brazil as well as distributing and transmission systems. Since July 28, 1931, the property has been operated by the Public Service Co. of Indiana under and pursuant to *978 the aforementioned lease from petitioner to the Terre Haute, Indianapolis & Eastern Traction Co., purchased from the receiver. Pursuant to article 16 of the lease of March 25, 1907, from the petitioner to the Terre Haute, Indianapolis & Eastern Traction Co., the petitioner, by corporate resolution, duly adopted, declared, and authorized the payment of common and preferred dividends on its capital stock during the terms of the lease. Pursuant to article 10 of the lease of March 25, 1907, the petitioner furnished the Terre Haute, Indianapolis & Eastern Traction Co., or its assigns and successors, a certified list of all of its stockholders and the amount of dividend to be paid each one. Pursuant to the agreement set out in article 16 of the lease of March 25, 1907, the lessee, the Terre Haute, Indianapolis & Eastern Traction Co., duly endorsed upon the preferred*805 stock certificates of the lessor corporation, the following: TERRE HAUTE, INDIANAPOLIS AND EASTERN TRACTION COMPANY, for value received, hereby guarantees to the record-holder of this certificate the payment of semi-annual dividends thereon, at the rate of six per cent per annum when and as the same shall become payable by or under and in pursuance of the terms of the agreement of lease bearing date the twenty-fifth day of March, 1907, made by the Terre Haute Traction and Light Company with this company as lessee, and that such payments shall be made free and clear of all charges, taxes, assessments and impositions whatsoever. The above endorsement was not printed on the certificates of common stock. After the petitioner changed its corporate name in July 1931, new certificates of stock - both common and preferred - were printed without the above endorsement and all subsequent changes of certificates were without the aforsaid endorsement. Nor was any other "endorsement" or "guarantee" printed on the certificates of common stock as provided by the lease. Pursuant to the provisions of article 16 of the lease of March 25, 1907, the Terre Haute, Indianapolis & Eastern Traction*806 Co., its receiver and its successor lessee in each of the three years here involved, made the payments provided to be made, and in the manner specified, direct to the stockholders and bondholders of petitioner. These payments were treated by both parties to the lease on their books as payments and receipts of rentals, respectively. Petitioner reported them on its income tax returns as taxable income and reported payments of dividends by it in the amounts paid by the lessor direct to its stockholders. The parties agree that the properties of petitioner covered by its lease to the Terre Haute, Indianapolis & Eastern Traction Co. sustained depreciation by reason of exhaustion, wear and tear for each of the years 1927, 1930, and 1931 in the respective amounts of $190,938.83, $199,933.26, and $201,902.15. *979 Among the properties delivered to the lessee at the beginning of the lease, owned by the petitioner and operated by the lessee, by the receiver and by the Public Service Co. of Indiana, during all the years material hereto, were three interurban railway lines known as the Terre Haute-Paris line, the Terre Haute-Clinton line and the Terre Haute-Sullivan line. The undepreciated*807 cost of the said interurban railways to the petitioner as of March 1, 1913, was $475,665.44 for the Paris line, $493,282.80 for the Clinton line, and $674,738.37 for the Sullivan line. On March 1, 1913, the cost to reproduce these properties, new, was $507,515.03 as to the Paris line, $532,426.79 as to the Clinton line, and $764,276.04 as to the Sullivan line. At or about January 1, 1927, it became certain that the three interurban lines mentioned above would, within a short period, in so far as railway operation was concerned, become wholly obsolete and useless for railway operation. On May 24, 1931, by authority of the Public Service Commission of Indiana, operation of the railway lines from Terre Haute to Clinton and Terre Haute to Sullivan was discontinued. From and after that date these lines, for the purpose of railway operation, were wholly obsolete. Operation of the Terre Haute-Paris railway line was discontinued in the following year, whereupon this line became wholly obsolete as such. Following the abandonment of railway operation the power distribution lines on the rights-of-way were maintained and operated. The petitioner reported upon its returns for the years*808 1927, 1930, and 1931, net losses in the respective amounts of $37,884.42, $67,089.27, and $26,842.57. In determining the deficiencies here in question respondent has disallowed deductions taken by petitioner for exhaustion, wear and tear for these years in the respective amounts of $190,938.83, $199,933.26, and $201,902.16. Respondent also increased petitioner's income for these three years by amounts representing income taxes computed for those years in the respective amounts of $20,646.61, $16,874.16, and $20,935.74, as additional rental accruing to petitioner under the obligation of the lessee to pay taxes of petitioner. Petitioner kept its accounts and made its returns on the accrual basis. OPINION. LEECH: The first issue is whether dividends paid by the lessee of petitioner's property, directly, to the latter's stockholders constitute rental income to petitioner. These payments, made in the three years here involved, were reported by petitioner, as income, on its returns filed for those years. Similar amounts were also *980 reported by petitioner as dividends paid. It now claims the inclusion of these amounts in its income for these years was erroneous because, *809 under the facts existing, they did not represent income received by it. Article 16 of the lease of March 25, 1907, provides that, in consideration for the use of the leased property the lessee will pay, "as rental", the interest upon the bonded indebtedness of the lessor and, as "additional rental", a sum "equal to three per cent. on the par value of the then outstanding preferred stock of the Lessor * * * and * * * a sum equal to two and one-half per cent., or $50,000, on the par value of said common capital stock of the Lessor." (Emphasis supplied.) It further provided that the payments in question: * * * shall be paid to the Lessor as follows: Ten (10) or more days before any such payment becomes due the Lessor shall declare a dividend of an amount equal to said payment to the holders of the shares of its common and preferred capital stock, and the Lessee, as agent of the Lessor, shall pay the amounts of such dividends thus declared to such persons and in such amounts to each as shall be certified to the Lessee under oath by the treasurer of the Lessor at least ten (10) days before the sum to be paid becomes due and payable, as entitled to receive the same*810 on the day the same becomes due and payable by virtue of their respective holdings of the common and preferred capital stock of the Lessor. The Lessor, in the interest and for the benefit of the holders of its stock, being all of its common and preferred shares, hereby requests and directs the Lessee thus to pay for the benefit of the Lessor said sums of money, the payments of which are provided for in said subdivisions (a) and (b) of paragraph 2 of this article, directly to the holders of said common and preferred shares respectively, in such amounts to each as shall be certified to the Lessee under oath by the Treasurer of the Lessor at least ten days before the sums to be paid under said subdivisions (a) and (b) of paragraph 2 of this article become due, and to accept the receipts of the persons to whom such payments shall be made in lieu of the receipt of the Lessor therefor, with the same effect as if such payments had been made to the Lessor and receipted for by it; and the Lessee, in pursuance of said request and direction, hereby agrees that it will make said payment of said sums, the payments of which are provided for in said subdivisions (a) and (b) of paragraph 2 of this*811 article, to said shareholders certified to it as aforesaid, in the amounts in each case so certified, it being agreed that said certificates so presented to it from time to time shall exempt it from all liability to inquire or be informed concerning the performance of prerequisite conditions. [Emphasis supplied.] The lessee agrees under the lease "that it will, at the request of the Lessor, endorse upon each certificate of common and preferred capital stock of the Lessor its said agreement to make said payments to the holders thereof, in pursuance of and according to the terms herein stated." A certificate which included this obligation was stamped upon the shares of original preferred stock of petitioner. In each of the years here involved the petitioner has, by corporate resolution duly adopted, declared the payment of common and *981 preferred dividends on its stock as provided by the lease and has furnished the lessee with a certified list of the stockholders entitled to the payment of such dividends. During each of those years the lessee has paid the amounts in the manner provided in article 16 above referred to, directly to stockholders of the lessor. It has*812 also paid direct to the holders of petitioner's bonds the interest thereon as provided by the lease. However, petitioner raises no question as to the inclusion of such interest in its taxable income. The question presented has been answered in ; certiorari denied, ; and ; certiorari denied, . See also ; ; ; ; ; ; ; . Petitioner relies upon the recent decision by the United States District Court for the District of Connecticut*813 in the case of . This decision is contrary to those heretofore cited and to the conclusion reached by us in prior cases upon similar facts. It is also true that the courts in three cases, , and ; and , have expressed some doubt as to the correctness of the decision in the Rensselaer and West End Street Railway cases. The decisions in the latter cases, however, have not been overruled and we have not considered such expression of doubt as sufficient ground upon which to base a different view from that already expressed by us. It is further noted that in , the lease in question did not, as here, expressly constitute the lessee as agent of the lessor for the payment to its stockholders of the dividends in dispute. Nor did it provide for the declaration of such*814 dividends by the lessor prior to payment. We think those distinctions are material. The court's decision in the last cited case was predicated upon the condition established there, that no liability existed on the part of the lessor to its stockholders with respect to the payments made to them by the lessee. In the present case such liability existed. Dividends were regularly declared by the lessor and the payments to its stockholders by the lessee were in satisfaction of that liability. *982 We conclude that respondent did not err in including in petitioner's income the payments in question as rentals accruing to it from its property. The second issue is whether deductions for the exhaustion of its leased assets by reason of wear and tear are allowable to petitioner for the several years in question. By the present lease an obligation was placed upon the lessee to accept the properties of the lessor in the condition existing as of the beginning of the lease term and, during that term, * * * renew, repair and replace the same, so as to maintain and keep the demised premises in as good order, repair and condition as the same are now and in their present state*815 of efficiency; that it will from time to time at its own expense (except as otherwise provided in Article 3 hereof) make all extensions, additions, alterations, improvements, renewals and betterments which may be necessary or proper with reference to the premises or property hereby demised and for the use and operation thereof, and will do and perform all other things necessary to make and maintain said street and interurban street railroads, plants and systems as first class, modern and efficient street and interurban street railroads, electric lighting, power and steam heating plants and systems; that all lands, structures, improvements, betterments, and renewals added to or made upon the demised premises, and all rights, privileges and franchises acquired by the Lessee in connection with the demised premises shall, upon payment therefor, as hereinafter provided, become the property of the Lessor and be treated as part of the demised premises and be subject to all the terms, conditions and provisions of this indenture in like manner as if they had been vested in the Lessor at the date of this instrument. The lease also provided that the obligation of the lessor, at the expiration*816 of the lease, to pay to the lessee for additions and betterments made by the latter, did not apply to expenditures "made in the renewal of or substitution for property existing at the commencement of the term of this lease, and thereafter worn out or destroyed." By article 3 of the lease the lessee is permitted to dispose of any of the real or personal property leased which is worn, damaged, or no longer necessary for its proper purposes or to alter, change, or replace such property with the obligation that, in case of the sale of property, the proceeds must be applied to the substitution of property equal in value to that sold, or expended to increase the value of the other leased property. It has been held repeatedly by the courts and this Board that, in cases involving long-term leases of this character, imposing an obligation upon the lessee to maintain the property and to make, at its own expense, repairs and renewals necessary for this purpose, the lessor is not entitled to deductions for depreciation resulting from physical exhaustion, wear and tear. *817 ; ; affd. ; ; certiorari denied, ; Georgia Railway &*983 ; ; certiorari denied, ; ; . In , this Board considered the same lease upon the question as to whether this same petitioner was entitled to allowance of deductions for exhaustion, wear and tear of the same property here involved. Such deductions were denied. Respondent contends that, aside from his position that petitioner is not entitled to deductions for wear and tear, upon the present facts, it is also estopped to be heard again on this question by reason of the judgment rendered in the cited case. We are in agreement*818 with that contention. The issue submitted in that case was identical to that presented here in the claim for deductions for exhaustion by reason of wear and tear of the leased property. The parties to both of the proceedings are the same. Although the issue here has to do with a later year and thus constitutes a new cause of action, the question there litigated is identical with that now before us and was submitted upon the same material facts. Petitioner argues in vain that this result is avoided because "the real party in issue" here is the Public Service Co. of Indiana, the petitioner's present lessee, which acquired the lease by assignment. The lessee, Public Service Co. of Indiana, is not a party to these proceedings. Here, as in the earlier case, we are determining the rights of the lessor under one lease. The lessee became such by purchase, approved by a proper court order, under both of which it became subrogated to the rights and assumed all the obligations of the original lessee. The rights of petitioner, lessor, under that lease, are not affected by the identity of the lessee, at any time. The Circuit Court of Appeals for the Seventh Circuit, in that prior proceeding*819 under this lease, denied any depreciation allowance for physical exhaustion "because of the lease." This concludes petitioner on that issue here. ; ; ; ; . The conclusion just reached applies with equal force to the third issue submitted. Respondent is likewise sustained on this issue. The fourth issue is raised by petitioner's claim for a reasonable allowance for exhaustion of the leased assets by reason of obsolescence of three of the lines of interurban railroad. Respondent contends that petitioner is not entitled to deductions for obsolescence for three reasons: First, that the question is res adjudicata because "obsolescence" is included in the general term *984 "depreciation." Consequently, he argues, this question has been finally determined against petitioner in the former proceeding discussed under the second issue; *820 second, that, under the terms of the lease in dispute, obsolescence is not subject to deduction by the lessor, and, third, that even were obsolescence allowable to petitioner the latter has failed to prove the necessary basis for its computation. We do not agree with the first contention. Depreciation is "the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost." . Although obsolescence may not be a deduction allowable in addition to depreciation, it is a possible additional element in that computation. . And, the denial of an allowance for physical exhaustion of assets does not, necessarily, foreclose an allowance for obsolescence. . Physical depreciation, alone, was in dispute in the earlier case, the decision in which is here pleaded in bar. No obsolescence occurred during the years there*821 Involved. It is a fact not there litigated. So, the right of petitioner here, to an allowance for obsolescence is not res adjudicata. Respondent's second contention is not so easily answered. The lease here is for a term of 999 years from March 1, 1907. Under its terms the lessee is required to maintain, repair, and replace the leased assets and to return them, at the conclusion of the lease term, in the same operative condition as when received. Under such a lease the lessor is not entitled to physical depreciation since the lessee is obligated to maintain the assets in an undepreciated condition, physically. (See cases cited on second issue, supra. ) This argument, however, does not apply to obsolescence, which is a loss of economic value during the physical life of the property, and not compensated by repair, or by replacement with a similar asset. If petitioner is denied an allowance for leased assets which it has shown have become obsolete during their physical life, that disallowance must be supported by some condition or lease provision other than those which preclude an allowance for physical*822 depreciation. Article 3 of the lease provides: The Lessor covenants that in case the Lessee considers any part of the real or personal property hereby leased to be worn, damaged, or no longer suitable or necessary for its proper purposes, it may sell, alter, change or replace such property, and the Lessor will act with the Lessee in any sale thereof, and in executing and delivering such instruments as may be necessary to transfer its title therein to the vendee, provided that such sales shall *985 always be in accordance with the terms of the mortgages at that time existing upon the property, and provided further that in the absence of mortgage provisions for such a transaction, the proceeds of any such sale or sales shall be applied to the substitution of property of value at least equal to that sold or shall be expended to increase the value of the other property hereby leased. It will be noted that the above provision applies to property "worn, damaged, or no longer suitable or necessary for its proper purposes." We do not think that those provisions have application to a component part of the leased railway systems which, though still operative, are abandoned because*823 they can be operated on longer at a profit. This conclusion is supported by the fact that under a subsequent clause of the lease, section 14, the lessee covenants to operate the street and interurban railways leased and the electric light, power, and steam heating plants. In the event that it becomes unprofitable to operate the steam heating plant, it is granted the right to discontinue such operation. The fact that the abandonment of operation of one of the facilities leased, is expressly authorized, indicates that it was not intended, by section 3 above set out, to authorize abandonment of the leased facilities because of unprofitable operation, subject only to an obligation to account to the lessor for the proceeds of any salvage. If section 3 was intended by the parties to include such right there would be no need for the limited right of abandonment granted by section 14. It would seem that under the provisions of the lease the lessee now stands obligated to account to the lessor of the three lines of railroad here in controversy, by restoring them at the conclusion of the lease, in the same condition as when received March 1, 1907, if required by the lessor. Assuming*824 that obligation exists, which it denies, petitioner argues that the performance of that obligation at the end of this 999-year lease can not be presumed, and that, if performed, the lessor would not be compensated for the cost of those lines to it. Certainly, on this record, we can not presume that existing obligation will not be performed. But, in any event, it is the obligation, not the length of its life, which is controlling here. Cf. ; Though the amount of an allowance for loss therefrom may be measured by proper estimates, the fact of obsolescence must be "actual." That it is "merely contemplated as more or less sure to occur in the future" is not sufficient to support such allowance. Cf. ;; certiorari denied, . Whether these facilities, if restored, at the termination of this lease, almost a thousand years in the future, or the undoubtedly *986 valuable right to demand*825 that restoration, will then have a value less or more than the cost of these three lines to petitioner, clearly can not now be answered. This uncertainty, under the present circumstances, may well defeat petitioner's contention. At all events those conditions contradict any suggestion that petitioner will have nothing representing its basis for the leased assets unless that basis is ratably deducted from its income during the remaining years of the lease. Cf. Here we have a lease term of about a thousand years, at the end of which time the lessee is to return the leased property, including these abandoned lines of interurban railways, in the same operative condition as when received. During that period the lessor is to receive the rental fixed by the lease, despite the abandonment of any portion of the leased property or of its obsolescence. It is obvious under these conditions that the economic value of the leased property to the lessor is, during this long period, unchanged by reason of any obsolesence sustained and that, if there be any loss because*826 of obsolescence, it can be measured only in terms of the lessor's reversionary interest, the determination of the value of which must await of the lease. Cf. ; affd., . The term of this lease exceeds the physical life, not only of all the depreciable assets leased, but that of many repeated replacements and renewals. To permit the substantial deductions claimed as obsolescence sustained, not upon the street and interurban railway lines, leased as such, but upon a collection of distinct assets with separate costs, and computed upon a reversionary interest, now, and for many years, practically valueless, would seem to result in a clear distortion of income for those years. That result would condemn the allowance. Apparently, the question as to whether a lessor of property under such a lease, for a term of approximately one thousand years, is entitled to obsolescence has not been decided by the courts or this Board. However, for the reasons stated, it seems, at least, doubtful that this petitioner could deduct any allowance*827 for obsolescence of the three interurban lines under the conditions imposed by the lease in dispute. But, aside from that question, no obsolescence is allowable in the absence of a basis for its computation. The basis for the allowance of obsolescence is the same as that to be used for determining gain or loss. That basis is fair market value or cost of the obsolescing assets, whichever is higher, on March 1, 1913. Revenue Act of 1926, secs. 234(a) and 204(a) and (b); Revenue Act of *987 1928, secs. 113(b) and 114(a). This record fails to disclose either that depreciated cost or fair market value. The three lines in question were constructed prior to March 1, 1913. The exact date of that construction is not shown. It is indicated to have occurred about 1900. We have found that these railway lines, for transportation purposes, became obsolete over a period beginning in 1927 and ending, as to two of them, in their abandonment for those purposes in 1931 and as to the third on the date of its abandonment, in 1932. Petitioner has established the original investment in these lines, the increase of that investment to the time of the lease in 1907 and the increases between*828 1907 and March 1, 1913, by reason of additions and betterments installed by the lessee which became the property of the lessor with the obligation upon the latter to reimburse the lessee for their value at the conclusion of the lease. It has also proved the cost to reproduce these three lines, new, on March 1, 1913. But, without proof of the depreciation sustained, we are unable to determine the depreciated cost which is the limit of the cost which may be recovered. Nor is the proof of cost of reproduction, new, on March 1, 1913, unsupported by other evidence, a measure of the fair market value of these lines on that date. ; affd., ; ; . The burden is unquestionably upon petitioner to establish the amount of the deduction. ; ; *829 . It is true that the parties have agreed as to the amount of physical depreciation sustained by the leased assets during the three years here in dispute. We have held petitioner is not entitled to deduct that depreciation under a lease of this character. But that depreciation does not establish the basis of fact here necessary. That depreciation includes such as was sustained upon all of the present leased properties of petitioner, without segregation. The amount applicable to the three lines is not disclosed. This is fatal to petitioner's position. Statements of purported earnings of the three obsolete railway lines appear in the record. But, although earnings may be competent evidence of fair market value, that is not true where those earnings do not, necessarily, reflect such value. . The three railway lines here involved were being operated by the lessee as a part, not only of the railway lines, power generating plants and transmission systems, included in the particular*830 lease from the petitioner, but also as a part, only, of other railway lines, power generating plants and transmission systems, operated *988 by the Indiana Public Service Co. No appraisal or expert testimony of those values was offered here. In such circumstances, operating costs and earnings of these three railway lines, even if properly computed, in the absence of testimony as to the fair market values of those lines at the critical date, are not sufficient upon which to predicate an appraisal of such values as a fact. Again, even if a basis for the computation of obsolescence were disclosed here, if the leased properties in question were railway lines and not just aggregates of physical assets, including real estate, this record does not establish abandonment of any of those lines. True, some of the equipment and facilities have been discarded. But the transmission lines, leased and maintained on the rights-of-way for the distribution of power are neither obsolete nor abandoned. They are still in use. Certainly the real estate has not been abandoned. *831 ; affd., . If treated as a group of separate physical assets, we think neither the remaining useful life of the assets upon which obsolescence is claimed, nor their respective bases have been established. These are essential facts to the allowance (), and it was petitioner's responsibility to establish them. New Colonial Ice Co.v. Helvering, supra.Difficulty or even impossibility of proving necessary facts may be unfortunate, but that circumstance does not relieve petitioner from the burden of establishing those facts. In such situation, it is merely without a remedy. In addition to its fatal failure to prove a basis to support the asserted obsolescence allowances, petitioner has not established either the remaining useful life of the pertinent assets, or their salvage value. Both of these facts are necessary elements for a computation of the disputed allowance. *832 , and cases therein cited. We conclude that the petitioner has failed to sustain his claim for obsolescence on the leased properties. In the last issue, petitioner claims the right to deduct a loss on the alleged abandonment of two of the three railway lines involved. This is an alternative issue controlled by the Revenue Act of 1928, sections 23(f) and (g) and 113. Petitioner relies wholly upon , for support in this position. It is untenable. Since there was no abandonment here, no identifiable event occurred to support a loss. . Passing that difficulty, the lessee in the cited case had no obligation to account to the lessor for the cost of the asset sold - only for its *989 sale price. Here the lessee was obligated to restore the physical equivalent of the assets leased. Thus, not only the fact, but the amount of any present loss is undeterminable. (See discussion and authorities in fourth issue, supra. ) Further, as stated above, this record*833 establishes no basis for the computation of any loss. Revenue Act of 1926, sec. 204; Revenue Act of 1928, sec. 113. And, finally, in our opinion, the decision of the Board in , disposes of this issue here. In that case, the inquiry was whether the lessor, under a 99-year lease much similar in its terms to the pending one, received taxable income in the amount of the excess over cost received by the lessee in its sale of leased assets. In refusing to consider this gain as then realized by and thus taxable to the lessor, we said: To consider them sales of property by petitioner, and the proceeds as gross income to petitioner, is to overlook not only the fact that the proceeds were received and used by the New Haven with no obligation upon its part except to replace the property at the expiration of the lease period of 99 years, but the fact that the property conveyed represents both the reversion of petitioner in such property and the leasehold interest therein belonging to the New Haven - its right to use for a remaining period of more than 70 years, which right would have a present value many times that of the reversion. Petitioner's*834 participation in or use and enjoyment of any gain realized is necessarily postponed until the termination of the lease. It receives no increased rental by reason of the transactions. We refused there to consider a change in the leased assets as giving rise to gain to the lessor. Here we have the converse - an asserted loss by such change. Although the Old Colony case had to do with the question of an inclusion in income, while we are concerned here with a statutory deduction from income, the rationale supporting the exclusion of the income item in the Old Colony case would deny the loss deduction here. Judgment will be entered for the respondent.