Konrad Schreier Co. v. Commissioner

APPEAL OF KONRAD SCHREIER CO. Konrad Schreier Co. v. Commissioner Docket No. 3600. United States Board of Tax Appeals 9 B.T.A. 407; 1927 BTA LEXIS 2591; November 29, 1927, Promulgated *2591 OBSOLESCENCE. - The petitioner had been engaged in carrying on the business of a manufacturer of malt and also as a producer of malt liquors. As a result of Federal legislation he was compelled to discontinue both of these businesses. Held, that he is entitled to claim obsolescence upon the tangible properties used in his former businesses. Chester A. Gwinn, Esq., for the petitioner. John D. Foley, Esq., for the Commissioner. TRUSSELL *408 Action for the redetermination of deficiencies in income and profits taxes for the calendar years 1918 and 1919 in the amounts of $44,141.09 and $5,711.79, respectively. The petitioner contends that the Commissioner erred in disallowing deductions for obsolescence of its malt and brewing plants and equipment. The petitioner's original petition claimed obsolescence only on its malt plant and elevators for the storage of malt and at the hearing was granted leave to amend its petition to conform to the proof of obsolescence of its plant and equipment including parts of brewing equipment. In closing its books for the year 1918, the petitioner entered in said books obsolescence charge in the amount*2592 of $90,650.26, and in closing its books for the calendar year 1919 it entered a further obsolescence charge in the amount of $20,162.56, and claimed these amounts as deductions from gross income for the said years respectively. The Commissioner disallowed these deductions. In its petition and amended petition petitioner now claims obsolescence upon its malting plant in the amount of $204,632.66, and upon property used in connection with the brewing business in the amount of $67,796.86. FINDINGS OF FACT. The petitioner is a Wisconsin corporation with its office and plant in Sheboygan. Since incorporation in 1896 until December, 1917, it had been profitably engaged in brewing and bottling beer and the manufacture of malt. The manufacture of malt for sale to brewers and distillers was its principal business. In December, 1917, the Congress of the United States by appropriate legislation, proposed to the legislatures of the States of the Union the prohibition or Eighteenth Amendment to the Constitution for their ratification or rejection. January 31, 1918, the officers and directors of the petitioner, believing that national prohibition was a certainty, and that its*2593 adoption would make the profitable conduct of its business impossible, resolved to discontinue its malting business when prohibition became effective. It closed its malt plant during 10 months of the year 1918, 2 months during the year 1919, and 8 months of the year 1920. The petitioner discharged its malt plant employees on January 1, 1920, and closed down its malt plant completely in October, 1920, and has not since used the said plant for manufacturing malt or for any other purpose. The partial operations during the years 1918, 1919, and 1920, were for the purpose of meeting the then existing contractual obligations and demand for malt and for the purpose of using up the barley *409 then on hand. The petitioner was unable to secure new contracts for malt and, in fact, some of its contracts were canceled by brewers. The petitioner had a large modern malt plant constructed of brick, concrete, and steel, using the most approved machinery and equipment, with a drum capacity of 1,250,000 bushels of malt a year. The drum house contained 20 steel drums of 600 bushels capacity each, 10 steel garners, 20 steel steep tanks, and conveying machinery all especially designed and*2594 installed for the purpose of manufacturing malt. The installation of this machinery was permanent and irremovable, being built into the building and floors and tied into the steel frame work at the time of its erection. The building was especially designed to house this particular machinery. The especially designed and constructed kiln house had two perforated steel floors, 40 feet by 120 feet, three furnaces for heating the floors, and stirring and dumping machinery used for drying malt from the drums. The elevator, 104 feet high, the 8 large concrete tanks, 80 feet high and 30 feet in diameter, and the intersections between the concrete tanks used for receiving and storing barley and malt had a capacity of 480,000 bushels. The elevator was equipped with machinery for cleaning barley and for conveying barley and malt, and was used only with the malt plant. A pump house and pumping machinery were used to supply the malt plant with water. The petitioner's malt plant, buildings, machinery, and equipment, except for the elevator loading and unloading machinery upon which obsolescence is not claimed, were not adaptable or convertible to other profitable use; there was no market*2595 for such machinery, and the cost of dismantling the same would have exceeded their salvage value for it would have entailed a partial destruction of the buildings. Due to the special construction of the buildings they could not be converted into profitable use if the machinery could be removed. The 480,000 bushel storage space could not be profitably used for the storage of grain, for the petitioner is located in a dairying country, not a grain country; is not on a main railroad, and is two miles from the lakes. In 1924 the petitioner constructed a new whole wheat flour mill next to the old elevator on the only available ground near the spur railroad track. The petitioner constructed an entirely new building and installed new machinery, no part of the malt plant being adaptable to flour milling except the elevator loading and unloading machinery. The capacity of the mill is 350 barrels per day, and its storage capacity is 3,000 bushels of wheat. The petitioner's brewing plant consisted of a brew house, cellar buildings, storage house, cooperage shop, wash house, bottling house, engine house, and boiler house. In December, 1919, the petitioner *410 ceased brewing and*2596 bottling beer but has since that time used a part of its brewing plant in the manufacture of cereal beverages. In 1920 and 1921 the petitioner used 2,442 bushels of malt which it had on hand, and thereafter has purchased the malt used in its manufacture of cereal beverages. Obsolescence is claimed only on that portion of the brewing plant, the use of which was discontinued in December, 1919, and which has not been used since. Obsolescence is not claimed on brew house, bottling house, engine house, boiler house, cellar house, wash house, and cooperage houses, for they are in partial use, but obsolescence is claimed on the brewing machinery in these houses, the use of which was abandoned in December, 1919, and not used since, and which could not be used in its manufacture of cereal beverages. Obsolescence is claimed on one building which was used for storage of kegs, beer bottles, malt bags, cases, etc. This building has stood vacant since December, 1919. The separate items of brewing machinery, the use of which was discontinued, are too numerous to set down. When, in the year 1920, the petitioner finally and permanently discontinued the use of its malt house, the depreciated*2597 cost of the building was $61,068.72, and the depreciated cost of the machinery and equipment in said building was $62,897.51. At the same time the elevator building represented a depreciated cost of $65,178.43 and the machinery and equipment in said elevator, exclusive of the grain loading and unloading machinery, represented a depreciated cost of $15,488. That part of the brewery buildings upon which obsolescence is here claimed, represented a depreciated cost of $13,093.64, and the brewing plant machinery and equipment, upon which obsolescence is claimed represented a depreciated cost of $34,980.13, and beer containers and other miscellaneous equipment, constituting a part of the brewery plant, represented a depreciated cost of $19,723.10. OPINION. TRUSSELL: In Appeal of Manhattan Brewing Co.,6 B.T.A. 952, the Board held that those tangible properties of a brewing company, which lost much of their value by reason of national prohibition legislation, were properly subject to a claim for the obsolescence under section 234(a)(7) of the Revenue Act of 1918 and that part of the amount of such obsolescence is an allowable deduction from gross income for the calendar*2598 year 1918. In the instant case the petitioner's business of producing barley malt used in the manufacturing of malt liquor was subject to the same or similar conditions as were the properties used directly in the production of malt liquor. In the instant case the petitioner was compelled to discontinue both its malt liquor brewing business and its business of producing barley malt and we *411 are, therefore, of the opinion that the interpretation of the obsolescence provisions of the Revenue Act of 1918 applies to the property of a malting plant under the circumstances of this case in the same proportion that it applies to a property used directly in the brewing business. In the case at bar the credible and uncontradicted testimony establishes as proven facts that the petitioner's malt house and machinery were completely thrown into disuse when the petitioner ceased to operate its malting plant in the year 1920. From the beginning of the year 1918 the petitioner had foreseen the ultimate destruction of its malting business and had from that time until 1920 gradually reduced the use of such plant until its operation was finally abandoned. The testimony further establishes*2599 that the malt house was designed and built peculiarly for use as a malt plant; that the machinery and equipment installed therein were imbedded in the building and can not be removed without completely wrecking the building. The testimony further proves that the machinery specially designed for the production of malt could not have been then used or at any time since used for any other purpose, and that even though it might have been removed from the building it would have no market value and that the cost of removal would exceed any possible salvage value of machinery as well as the building itself. We are, therefore, of the opinion that the amount of the depreciated cost of the malt house and its machinery on the date that its use was discontinued in 1920 was a total loss and that this petitioner is entitled to claim as a deduction from gross income the amount of such loss distributed equally over the period from January 31, 1918, to October 31, 1920, and prorated into the taxable years 1918, 1919, and 1920. Respecting the malt plant elevator, the testimony establishes the fact that the use of this elevator was completely discontinued in October, 1920, and that from that time*2600 until the time of the trial of this action it had remained wholly unused and that during that period the petitioner had been able to find no probable or possible future use for this property; that its construction was designed peculiarly for use as a grain elevator; that there was no use for such an elevator in the community in which the petitioner's property was located; that it was situated in a territory devoted chiefly to dairying, where little grain was produced; and that it was not in a location where it could be used as a terminal elevator. The testimony is convincing that at the time when its use was discarded there was no possible future use in sight and its design and construction were of such a character as to make it substantially impossible to remodel it for other uses. This elevator, however, was constructed of brick and concrete in the year 1913, and in the ordinary course *412 of business should have had many years of life before it could have become useless from the result of ordinary exhaustion, wear and tear, and, although the testimony in the record, respecting this elevator, is of the same character as the testimony regarding the malt house, we still lean*2601 to the opinion that this elevator property should not be treated as a complete and total loss. And, although the record furnishes us with no testimony and no guide which could lead us to the determination of its salvage or possible future usage, the record does furnish a complete description of the elevator building and a detailed inventory of the machinery and equipment installed therein. From an examination of the descriptions of these properties, we are convinced that while it may be true that at the time the use of this property was discontinued there may have been no ready market for such property, we are not convinced that it was then a total loss. Other people in other places were carrying on a grainelevator business and it seems entirely possible that this elevator machinery could then have been and at any time since might be, removed from the elevator building and sold to other people having use for such machinery. The building itself might at some future time prior to its disintegration on account of exhaustion come into use and that therefore it may not be said to have been a total loss. Taking this view of the situation, we are led to the conclusion that instead of*2602 allowing a total loss on the elevator and machinery, as claimed by the petitioner, we may properly determine a different measure of such loss and for the purpose of this case we are of the opinion that the allowable obsolescence on the elevator and machinery is for the period here under consideration 60 per cent of its depreciated cost as of October, 1920. Respecting the claimed loss upon brewery buildings and equipment, it appears that the same situation exists as above outlined regarding the malting plant elevator and its equipment and following the reasoning there set forth, we fix the obsolescence loss on such equipment at 60 per cent of the depreciated cost. The obsolescence here allowed on brewery property may be spread over the period from January 31, 1918, to January 16, 1920, and the obsolescence loss upon malt plant properties may be spread over the period from January 1, 1918, to October 31, 1920. The deficiency may be recomputed in accordance with the foregoing findings of fact and opinion upon 15 days' notice, pursuant to Rule 50. Judgment will be entered accordingly. Considered by LITTLETON, SMITH, and LOVE.