La Arcada Bondholders Committee v. Commissioner

LA ARCADA BONDHOLDERS COMMITTEE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. La Arcada Bondholders Committee v. Commissioner Docket No. 75684. United States Board of Tax Appeals 35 B.T.A. 80; 1936 BTA LEXIS 565; November 17, 1936, Promulgated *565 1. The determination, for depreciation purposes, of the cost of a building acquired upon foreclosure by the bondholders after a single conventional bid of one-half the amount of the outstanding bonds is not conclusively fixed by the bid price. 2. Where bonds are used in part payment of the purchase price upon foreclosure, the cost of the property is determined by the value of such bonds, plus cash, when paid in for the property. 3. The fair market value of the property which secures the bonds may properly be regarded as some evidence upon which to determine the value of the bonds used to pay for it upon foreclosure. Arthur J. Hair, Esq., G. E. Walling, Esq., and Lawrence E. Tripp, Esq., for the petitioner. Frank M. Thompson, Esq., for the respondent. STERNHAGEN *80 The Commissioner determined a deficiency of $1,013.13 in petitioner's income tax for 1931, of which so much is contested as results from the reduction of the cost of a building as the base of its depreciation deduction. FINDINGS OF FACT. Petitioner is a committee, consisting of Leo MacLaughlin, Henry E. Shearer, and B. C. McCabe, which was formed in June 1929 to*566 act for holders of bonds of the La Arcada Corporation. Its principal place of business is at Pasadena, California. In 1925 Hattie G. Stockton purchased a piece of property on the corner of State and Figueroa Streets in the main business district of Santa Barbara, California, and erected on it, at an initial cost of $350,000, a two-story structure known as La Arcada Building, covering all but a 100-foot strip on the corner. The project was financed through a "First Mortgage Seven Per Cent Serial Gold Bond" issue of $475,000, dated November 1, 1925, to be retired serially in varying amounts from November 1, 1928, to November 1, 1939. To insure the payment of the bonds, the property was conveyed to a trustee authorized, upon default and if requested by holders of 15 percent in amount of the bonds, to cause it to be sold to enforce the bondholders' rights. (; .) In case of such a sale, the trustee was permitted to pay the purchase price with bonds and unpaid matured interest thereon at a proportionate value equal to the amount which would be payable to the holder upon*567 distribution of the net proceeds of *81 the sale among the bondholders. From November 1, 1928, until July 29, 1929, this property was owned and operated by the La Arcada Corporation. On November 1, 1928, the principal of the bond issue was reduced to $460,000 by a payment of $15,000. Thereafter default was made in the payment of $16,100 of interest due May 1, 1929, and the Bank of America of California, as trustee, on request of the bondholders, advertised the property for sale at public auction and sold it on July 29, 1929. The petitioner, acting for the bondholders, made the sole bid of $230,000. This was accepted, and on September 10, 1929, the trustee conveyed title to the Citizens National Trust & Savings Bank of Los Angeles, as trustee. Petitioner then borrowed $50,000 from the said bank, and has operated the property ever since. It gave a check for 10 percent of the bid price and transferred the deposited bonds to the trustee, the Bank of America of California. The bid of $230,000, being 50 percent of the face amount of the outstanding bonds, was the minimum bid generally permitted at that time by the trust and abstract companies. *568 Before the sale, petitioner was put on notice that its legality would be contested, and the former owner thereafter brought suit against petitioner and the trustee to have the sale set aside and the instrument declared a mortgage with the consequent right of redemption. After three years of litigation, the instrument was held a trust deed and petitioner's indefeasible title to the property established. All bondholders were invited to deposit their bonds with petitioner. Bonds in a face amount of $409,500 were so deposited; holders of the remaining $50,500 face value refused, and were paid off by the trustee at the rate of .428. This fraction reflects an equal distribution of the accepted price of $230,000, less expenses, among all the bonds outstanding. On July 29, 1929, the fair market value of the whole property was $345,000, of which the value of the building was $240,000. The value of the $409,500 face amount of bonds deposited with petitioner and given up as part of the purchase price for the property was $292,677.84. The petitioner also paid $24,366.75 to the nondepositing bondholders and*569 $16,229.02 expenses of acquisition of the property. The cost of the entire property to petitioner was $333,273.61, of which approximately $231,950 represented the cost of the building. A reasonable allowance for exhaustion, wear, and tear, including obsolescence, of the building is at the annual rate of 2 1/2 percent (used by the Commissioner and not assailed) of approximately $231,950. *82 OPINION. STERNHAGEN: The issue is the amount which the petitioner was, in the taxable year 1932, entitled to deduct, under section 23(k) of the Revenue Act of 1928, as a reasonable allowance for the exhaustion, wear, and tear of the La Arcada building, including a reasonable allowance for obsolescence. The Commissioner, in determining the deficiency, used a straight line annual depreciation rate of 2 1/2 percent, and this rate the taxpayer does not contest. The controversy turns upon the basis to which this rate should be applied, the Commissioner having determined a basis of $188,334.66 and the petitioner claiming a basis of $350,000. These figures represent the respective contentions of the parties to this proceeding as to the petitioner's cost of the building at the time, July 29, 1929, when*570 the building was acquired at the so-called foreclosure sale. The respondent's determination and contention is founded upon the proposition that the accepted bid of $230,000 must be taken as the cost to the petitioner of both the land and the building, of which a proper apportionment, namely 69.6 percent, is applicable to the depreciable building. The petitioner, contesting the use of the bid price, seeks instead to prove that the actual value of the land and building is greatly in excess of the bid price, and contends that the actual value of the building at the time of its acquisition in 1929 is to be taken as the depreciation base. Prior decisions establish the proposition that the bid price, although not to be disregarded as evidence, is not conclusive of cost of depreciable property acquired in foreclosure or comparable circumstances. ; (on review, C.C.A., 6th Cir.); . Consistently with this doctrine, the evidence in this proceeding shows that the bid of $230,000, which was the only bid made at the sale, *571 was prompted not by the value of either the property being sold or the bonds used for its payment, but by a convention to offer no more than 50 percent of the face amount of the outstanding bonds, which convention had been established by the trust companies and the title companies of the community as a minimum sale price of property held as collateral for defaulted bonds. In view of the fact that the terms of the sale under the trust instrument permitted the bondholders to use the bonds in payment of the purchase price, it was of small moment to them at what precise figure they bid for the property. The only difference which the amount of their bid would make would be to control the amount of cash to be paid to the nondepositing bondholders. These owned approximately 11 percent of the outstanding bonds. *83 The basis for depreciation in this case, as in others, is the cost of the depreciable property. Revenue Act of 1928, sec. 114(a). The cost is the sum of the money and the actual value of property given up for the depreciable property received. Thus it is necessary to ascertain from the evidence the actual value of the bonds given up by the petitioner; and this, plus*572 the money, is to be taken as the cost of the entire property acquired, which cost must be properly apportioned between the nondepreciated land and the depreciable building. There is no direct evidence of the value of the deposited bonds, and such value can only be arrived at by considering all of the circumstances by which they were surrounded upon the date in question. Manifestly, since they were in default and the default was the occasion for the foreclosure, the bonds may not be regarded as worth more than par, or the property as worth, as petitioner contends, around $650,000. While due and respectful consideration has been given to the opinions of the petitioner's witnesses to this effect, the conclusions as to value which have been stated in the findings are the result of consideration of the facts and circumstances affecting such value as well as the several opinions in evidence. (Although it happens that the figure of $345,000 is the mean between the $230,000 bid and the $460,000 face value of the outstanding bonds, this is purely a coincidence and has not been arrived at by any arbitrary method like splitting the difference.) The entire property, it has been found, had*573 a fair market value of $345,000, of which approximately $240,000 was applicable to the depreciable building. Since the bondholders were, by the terms of their bonds, entitled by foreclosure to take the property for their bonds and the comparatively slight expense of sale, taxes, etc., it is fair to say that all of the outstanding bonds ($460,000) were worth as much as the property for which they could be redeemed, minus only the amount of the expense, viz., $16,229.02. The bonds were thus worth .71472. But $50,500 of the outstanding bonds were not paid for the property but were discharged through the payment by the petitioner of $24,366.75. This left bonds of a face value of $409,500 and an actual value, at .71472, of $292,677.84 as paid for the property, plus $40,595.77 cash, a total cost of $333,273.61 for the entire property. This has been apportioned in the findings of fact upon the ratio used by the Commissioner and apparently not assailed by the petitioner and not overcome by any evidence, so as to result in a cost of the building of approximately $231,950. To such figure the undisputed rate of 2 1/2 percent should be applied, to arrive at the correct allowance for the*574 taxable year in question. Judgment will be entered under Rule 50.