Johnson County Realty Co. v. Commissioner

JOHNSON COUNTY REALTY COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Johnson County Realty Co. v. Commissioner Docket No. 96314. United States Board of Tax Appeals 44 B.T.A. 121; 1941 BTA LEXIS 1389; April 8, 1941, Promulgated *1389 On Dember 28, 1935, the petitioner, which reports its income by the cash receipts and disbursements method, purchased real estate located in the State of Iowa. Under a provision of the Iowa Code the lien for estate taxes attaches in the case of a vendee on December 31 of each year. In 1936 the petitioner paid the 1935 taxes on the property purchased. Held, that it is Perry W. Shrader, Esq., for the petitioner. Gene W. Reardon, Esq., for the respondent. TURNER *122 The respondent determined deficiencies in income and excess profits taxes for 1936 in the respective amounts of $876.22 and $233.58. The question at issue is whether petitioner is entitled to deduct real property taxes for 1935 paid by it in 1936 on realty situated in the State of Iowa, where it is shown that it purchased such realty in December 1935. FINDINGS OF FACT. In 1935 the Johnson County Savings Bank, sometimes hereinafter referred to as the old bank, was in receivership and D. W. Bates, Superintendent of Banking for the State of Iowa, was acting as receiver. Petitioner was incorporated on December 2, 1935, under the laws of Iowa, for the purpose of purchasing*1390 and operating an office building formerly owned and partly occupied by the old bank. On December 28, 1935, petitioner purchased from the said receiver the land and building referred to, the deed to the property being delivered on that date. Actual possession of the property had been turned over to petitioner on December 10, 1935. The assessed valuation of the property was $97,200, and the city and county taxes for 1935 were assessed, levied, and collected under and in accordance with the statutes of Iowa. The city and county taxes for the year 1935 in the amount of $4,046.44 were assessed against the old bank, the owner of the real estate on January 1, 1935. The assessment was completed on or before April 1, 1935. On or about December 28, 1935, the county auditor transferred the said assessment of $4,046.44 from the county assessor's roll into the books known as the "tax list." On December 31, 1935, the tax list was delivered to the county treasurer, who commenced his collections on January 1, 1936. On April 9, 1936, a check of D. W. Bates, as receiver, as receiver for the old bank, was issued and made payable to the order of W. E. Smith, county treasurer, in the amount*1391 of $4,740.71. This payment covered the city and county taxes for the year 1935 in the amount of $4,046.44 and a paving assessment of $694.27. The check was delivered to the newly organized bank, Iowa State Bank & Trust Co., and by it delivered to the county treasurer, by whom it was endorsed and cashed. The county treasurer issued his receipt dated March 31, 1936, for the taxes paid as described above. On June 26, 1936, petitioner issued and delivered its check in the amount of $4,046.44 to D. W. Bates, as receiver of the old bank, to reimburse the said receiver for the 1935 city and county taxes previously *123 paid. Petitioner did not reimburse the receiver for the special assessment taxes. Subsequent to the date of payment of the taxes the county treasrer refunded the amount of $397.16, representing an overpayment on city and county taxes, leaving $3,649.28 as the net amount of city and county taxes paid. The refund check was made payable to both the old bank and the petitioner, and the endorsement of both appear on the back of the refund check. The petitioner keeps its books and files its income tax returns on the cash receipts and disbursements basis. In its*1392 return for 1936 it deducted as taxes paid the amount of $3,649.28. The respondent disallowed the deduction and added the amount thereof to the cost of the property. He increased the cost of the building by $3,201.15, the cost of the land by $448.13, and allowed as a deduction to petitioner for additional depreciation the amount of $96.03 on the increased cost of the building. Petitioner's taxable income was increased by the net amount of $3,533.25. The parties have stipulated that, if the payment made by petitioner during the year 1936 in the net amount of $3,649.28 is deductible as taxes paid, there will be no deficiency due from petitioner, and that, if such payment is held to constitute a part of the cost of the property, then the deficiences as asserted are correct. OPINION. TURNER: Among the deductions allowed by the statute for the purpose of determining net income is the deduction for taxes, section 23(c) of the Revenue Act of 1936, but it has been held that in the case of a purchaser of real estate, taxes outstanding against the property at the time of purchase do not as to such purchaser retain the character of taxes, but constitute a part of the cost of the property. *1393 Merchants Bank Building Co. v. Helvering, 84 Fed.(2d) 478; Helvering v. Missouri State Life Insurance Co., 78 Fed.(2d) 778; Lifson v. Commissioner, 98 Fed.(2d) 508; Walsh-McGuire Co. v. Commissioner, 97 Fed.(2d) 983; Crown Zellerbach Corporation,43 B.T.A. 541; California Sanitary Co., Ltd.,32 B.T.A. 122; Texas Coca-Cola Bottling Co.,30 B.T.A. 736. Further, there seems to be no question that if the date of purchase preceded the date of accrual of such taxes the purchaser is entitled to deduct the taxes when accrued or paid, dependent upon the method used by him in reporting his income, and the parties here agree that the date of accrual is controlled or determined by the law of the state where the land is situated. Under the Iowa Code, property is listed and valued in January and, after opportunity for the adjustment of the values by the proper board or commission, the levy is made by the county board of supervisors *124 at its September session. The tax list is then prepared and delivered to the county treasurer on or before December*1394 31 and the taxes become due and payable on January 1 of the year following that for which they are levied. 1 In Lowell H. Chamberlain,43 B.T.A. 259, we concluded that under the Iowa statutes and the decisions of the supreme court of that state, Gates v. Wirth,181 Ia. 19; 163 N.W. 215, and Iowa Wesleyan College v. Knight,207 Ia. 1238; 224 N.W. 502, real property taxes accrue in September, when they are levied by the board of supervisors. It would appear therefore that the taxes on the real estate in question accrued in September and at that time became an obligation outstanding against the property in the hands of the petitioner's vendor, and if there were nothing further, we should conclude, in line with the previously decided cases, that the payment by the petitioner of the taxes here in question constituted payment on the purchase price of the property and not the payment of taxes within the meaning of the statute. In section 7204, 2 however, the Iowa Code provides that as "against a purchaser" *1395 the lien for taxes against the real estate purchased "shall attach * * * on and after the 31st day of December in each year." In the instant case the petitioner purchased the real estate in question on December 28, 1935. He paid the taxes in 1936 and since he reports his income on the cash basis, claims the right to deduct for that year the amount so paid. In Nunngesser v. Hart,122 Ia. 647; 98 N.W. 505, the question before the court was whether the vendor or vendee of certain real property was liable for the taxes thereon for the year 1900. The court said: As between vendor and vendee, tax liens attach to real estate on and after December 31 in each year. Code Section 1400 (now 7204): Taxes on real estate are required to be paid by the owner, and the question at once arises, who was the owner of the property in controversy, within the meaning of the statute, on January 1, 1901. The respondent relies on the more recent case of *1396 Moore v. Central National Bank & Trust Co.,210 Ia. 1020; 229 N.W. 666, claiming that the real property there in question was sold on December 11, 1928, but that it was there held that the 1928 taxes on the property were the taxes of the vendor. While in that case the agreement of purchase was entered into in December, the court's decision turned on the fact that the sale was not completed until March 1929, and, in holding that the taxes in question for the year 1928 were the taxes *125 of the vendor, the court reaffirmed the rule laid down in Nunngesser v. Hart, supra. To the same effect is Clinton v. Shugart,126 Ia. 179; 101 N.W. 785. In the instant case the sale was completed and petitioner became the owner of the real estate in question on December 28, 1935, and under section 7204, supra, the lien for the taxes against such real estate attached as to him some three days later on December 31. In the light of that provision, it is our conclusion and we so hold, that the liability for the 1935 taxes against the real estate purchased by petitioner and paid by him in 1936 was as to*1397 petitioner a liability for taxes. Nunngesser v. Hart, supra.Cf. Commissioner v. Plestcheeff, 100 Fed.(2d) 62; Lifson v. Commissioner, supra;Commissioner v. Rust Estate, 116 Fed.(2d) 636; and T. H. Banfield,42 B.T.A. 769. Since the petitioner reports his income by the cash method and the taxes in question were paid in 1936, they are deductible in determining his income tax liability for that year. Decision will be entered for the petitioner. Footnotes 1. Secs. 7106, 7115, 7122, 7129, 7137, 7140, 7141, 7145, 7147, 7171, and 7210, Iowa Code, 1935↩. 2. 7204. Lien Between Vendor and Purchaser.↩ As against a purchaser, such liens shall attach to real estate on and after the 31st day of December in each year.