Irish v. Commissioner
This text of 1969 T.C. Memo. 45 (Irish v. Commissioner) is published on Counsel Stack Legal Research, covering United States Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Memorandum Findings of Fact and Opinion
WITHEY, Judge: The Commissioner determined deficiencies in petitioners' income tax for the calendar years and in the amounts as follows:
| Year | Amount |
| 1962 | $ 211.14 |
| 1963 | 6,781.72 |
The principal issue presented for our determination is whether petitioner purchased four houses with the intent to demolish them, so as to be foreclosed from taking a loss deduction under
*251 Findings of Fact
Some of the facts have been stipulated and are found accordingly.
Petitioners, husband and wife, resided at Saginaw, Michigan, both at the filing of the petition and at the time of trial. They filed a joint Federal income tax return for each of the calendar years 1961, 1962, and 1963 with the district director of internal revenue at Detroit, Michigan. They also filed timely refund claims and amended Federal income tax returns for the years 1962 and 1963 with the district director of internal revenue at Detroit, Michigan. Inasmuch as Elaine M. Irish is joined here only by virtue of the joint returns filed with her husband for 1962 and 1963, the term "petitioner" will hereinafter be used to designate Aarol W. Irish.
Petitioner, whose offices are in Saginaw, Michigan, has been a general agent of the Union Mutual Life Insurance Company of Portland, Maine, since 1950. As a result of an insurance course which petitioner attended, he developed an interest in purchasing rental properties for the future security and education of his children. Petitioner's family had seven children in 1961, eight in 1962, and nine in 1963. At a later date and sometime prior to April 7, 1961, petitioner*252 was contacted by a social acquaintance who owned two houses located at 1600 and 1606 N. Michigan Avenue, Saginaw, Michigan (hereinafter 1600 and 1606), for the purpose of inducing petitioner's purchase of the homes. On the condition that petitioner would purchase both homes, he was given the option on April 7, 1961, to purchase 1600 for $16,000 and 1606 for $14,000. The option was exercised by petitioner on May 20, 1961. In order to purchase those properties, petitioner borrowed approximately $26,000 from his business partner, petitioner supplying the balance of the purchase money from his own funds. Then, on June 28, 1961, and August 11, 1961, petitioner acquired options to purchase two other houses located at 1612 and 1618 N. Michigan Avenue (hereinafter 1612 and 1618). 2 The option on 1612 was exercised on August 29, 1961, and the option on 1618 was exercised on August 15, 1961. The purchase of the real estate located at 1612 and 1618 was closed on October 10, 1961, petitioner paying $16,113.87 for 1612 and $15,052.85 for 253 1618. 3 Petitioner purchased 1612 and 1618 by placing a single consolidated bank mortgage in the approximate amount of $56,000 on all four parcels of*253 real estate. Prior to the acquisition of the four houses in question, petitioner had very little real estate experience.
The houses acquired by petitioner were in a generally residential neighborhood, although the particular block on which petitioner's houses were located was bounded on the west by N. Michigan Avenue, on the east by the tracks of the New York Central Railroad, to the north by the Sunshine Biscuit Company, and to the south by Draper Chevrolet Company (hereinafter Draper), a Chevrolet dealership. St. Luke's Hospital was diagonally across N. Michigan Avenue. At the time of acquisition, as well as at the time of trial, the properties immediately adjacent to 1600-1618, both to the north*254 and south as well as directly across N. Michigan Avenue, consisted of residential housing.
Inasmuch as the four houses were in various states of disrepair immediately prior to the time petitioner acquired them, petitioner, in order to obtain funds necessary to complete the purchase of 1612 and 1618, made certain repairs so as to induce the bank to appraise the properties at higher values than it might otherwise have done. Prior to October 10, 1961, petitioner expended the following amounts for repairs:
| Item | Date paid | Amount | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Tree service | 7/ 1/61 | $ 41.00 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plumbing | 8/31/61 | 6.00 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Materials | 8/29/61 | 13.40 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Painting | 8/31/61 | 130.00 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Free access — add to your briefcase to read the full text and ask questions with AI Aarol W. Irish and Elaine M. Irish v. Commissioner. Irish v. Commissioner Docket No. 1585-67. T.C. Memo 1969-45; 1969 Tax Ct. Memo LEXIS 250; 28 T.C.M. (CCH) 252; T.C.M. (RIA) 69045; Michael J. Mehr and Basil M. Briggs, 3000 Guardian Bldg., Detroit,Mich., for the petitioners. Ralph F. Keister, for the respondent. WITHEY Memorandum Findings of Fact and Opinion WITHEY, Judge: The Commissioner determined deficiencies in petitioners' income tax for the calendar years and in the amounts as follows:
The principal issue presented for our determination is whether petitioner purchased four houses with the intent to demolish them, so as to be foreclosed from taking a loss deduction under *251 Findings of Fact Some of the facts have been stipulated and are found accordingly. Petitioners, husband and wife, resided at Saginaw, Michigan, both at the filing of the petition and at the time of trial. They filed a joint Federal income tax return for each of the calendar years 1961, 1962, and 1963 with the district director of internal revenue at Detroit, Michigan. They also filed timely refund claims and amended Federal income tax returns for the years 1962 and 1963 with the district director of internal revenue at Detroit, Michigan. Inasmuch as Elaine M. Irish is joined here only by virtue of the joint returns filed with her husband for 1962 and 1963, the term "petitioner" will hereinafter be used to designate Aarol W. Irish. Petitioner, whose offices are in Saginaw, Michigan, has been a general agent of the Union Mutual Life Insurance Company of Portland, Maine, since 1950. As a result of an insurance course which petitioner attended, he developed an interest in purchasing rental properties for the future security and education of his children. Petitioner's family had seven children in 1961, eight in 1962, and nine in 1963. At a later date and sometime prior to April 7, 1961, petitioner*252 was contacted by a social acquaintance who owned two houses located at 1600 and 1606 N. Michigan Avenue, Saginaw, Michigan (hereinafter 1600 and 1606), for the purpose of inducing petitioner's purchase of the homes. On the condition that petitioner would purchase both homes, he was given the option on April 7, 1961, to purchase 1600 for $16,000 and 1606 for $14,000. The option was exercised by petitioner on May 20, 1961. In order to purchase those properties, petitioner borrowed approximately $26,000 from his business partner, petitioner supplying the balance of the purchase money from his own funds. Then, on June 28, 1961, and August 11, 1961, petitioner acquired options to purchase two other houses located at 1612 and 1618 N. Michigan Avenue (hereinafter 1612 and 1618). 2 The option on 1612 was exercised on August 29, 1961, and the option on 1618 was exercised on August 15, 1961. The purchase of the real estate located at 1612 and 1618 was closed on October 10, 1961, petitioner paying $16,113.87 for 1612 and $15,052.85 for 253 1618. 3 Petitioner purchased 1612 and 1618 by placing a single consolidated bank mortgage in the approximate amount of $56,000 on all four parcels of*253 real estate. Prior to the acquisition of the four houses in question, petitioner had very little real estate experience. The houses acquired by petitioner were in a generally residential neighborhood, although the particular block on which petitioner's houses were located was bounded on the west by N. Michigan Avenue, on the east by the tracks of the New York Central Railroad, to the north by the Sunshine Biscuit Company, and to the south by Draper Chevrolet Company (hereinafter Draper), a Chevrolet dealership. St. Luke's Hospital was diagonally across N. Michigan Avenue. At the time of acquisition, as well as at the time of trial, the properties immediately adjacent to 1600-1618, both to the north*254 and south as well as directly across N. Michigan Avenue, consisted of residential housing. Inasmuch as the four houses were in various states of disrepair immediately prior to the time petitioner acquired them, petitioner, in order to obtain funds necessary to complete the purchase of 1612 and 1618, made certain repairs so as to induce the bank to appraise the properties at higher values than it might otherwise have done. Prior to October 10, 1961, petitioner expended the following amounts for repairs:
At the time petitioner purchased the four houses he was familiar with all of them and was aware of the rental income generated by 1600, 1606, and 1612, all of which were occupied by tenants at the time of purchase. The tenants in 1600 paid $135 a month and the two families in 1606 paid a combined monthly rental of $152.50. Although 1618 was vacant at the time of purchase, it was petitioner's feeling that this was the best preserved of the four houses and could be easily rented. Petitioner also considered using 1618 as an office for his insurance agency. On May 23, 1961, petitioner purchased a casualty and business interruption insurance policy with a 5-year term on 1600 and 1606, which provided the following amounts of coverage:
The tenants occupying 1600 through 1612 vacated at various times between September 1961 and June 1962. 5 On August 29, and November 2, 1961, petitioner responded to advertisements in a local newspaper which had inquired about homes for rent. During November 1961, petitioner advertised in a local paper for the rental of 1612. On February 9, 1962, petitioner advertised in a local paper for the rental of 1606 and 1618, indicating their availability as of February 15, 1962. 6 The following amounts were expended by petitioner in advertising the four houses for rent:
By the late summer of 1962, petitioner was faced with the increasingly heavy financial burden of meeting mortgage payments, real estate taxes, utility bills, and maintenance costs on the four vacant houses. In an attempt to reduce these costs, and upon the advice of a real estate agent, petitioner began making plans for the removal of the houses. On September 1, 1962, the house at 1612 was sold to Robert Bierlein (hereinafter Bierlein) for $800, which money was used to make 3-months' mortgage payments. The house at 1612 was physically removed from the real estate by Bierlein in 1962 at no cost to petitioner. On October 26, 1962, Bierlein agreed to demolish the houses at 1600 and 1606 at no cost to petitioner, provided Bierlein could do the work at his convenience. Pursuant to that agreement, the demolition of those two houses was not completed until February 1963. Petitioner did not demolish*258 the house at 1618 at that time since he still thought he might use it as an office for his insurance agency. Demolition of 1618 was eventually started in April 1963 and completed the following month. As a result of the removal of the four houses which was done with the permission of the mortgagee, Michigan National Bank, the assessed valuation of the properties was reduced. The adjusted bases of the houses at the time of demolition or removal, as reported on petitioner's Federal income tax returns, were as follows:
At the time of demolition and removal of the four houses, petitioner's bookkeeper, who had been retained to keep records of the properties in question, reflected the demolition of the houses in petitioner's books by adding the adjusted basis of each house to the cost of the land. Petitioner's bookkeeper was not an accountant, had never previously made bookkeeping entries reflecting demolition of buildings, was unfamiliar with the Federal tax law relating to the treatment of demolition losses, failed to research the point before making the entry, and consulted*259 neither petitioner nor his accountant prior to making the entry. When the entry came to the knowledge of petitioner's accountant, who had the responsibility of preparing petitioner's Federal income tax returns prior to and during the years in question, he informed the bookkeeper that his entry was erroneous. The accountant did not know of the sale and removal of 1612 and the demolition of 1618 at the time he prepared petitioner's Federal income tax returns for the years in question. Immediately upon learning such facts, the accountant filed refund claims for petitioner in order to reflect the losses he felt petitioner had incurred. The following is a schedule of the rental income and expenses reported by petitioner on his Federal income tax returns for 1961, 1962, and 1963 with respect to the houses in question: 255
On July 10, 1961, petitioner joined in filing a rezoning petition with the City Council of Saginaw, Michigan. The petition, initiated by Draper, requested that the zoning be changed from multi-family and professional office classification to a retailing and light wholesale classification for the block-wide corridor lying between N. Michigan Avenue and the railroad tracks and extending from Draper to the south to some point north which included petitioner's four houses. The petition was initiated by Draper in order to permit it to extend its automobile operations, which was done upon the subsequent approval of the reclassification. Petitioner's motives for acquiescing in the petition were twofold: first, he felt that the requested reclassification would not make his property less valuable, and secondly, the goodwill stemming from his acquiescence would enhance his chances of selling insurance to Draper. In January 1962, petitioner received a flyer through the mail from a Los Angeles firm indicating that his property might be valuable for a motel. In an attempt to independently verify such a possibility, petitioner discussed the matter with the construction foreman at a Holiday*261 Inn motel being built near petitioner's office. The foreman, who was employed by Allen Bros. and O'Hara (hereinafter Allen Bros.), a construction and promotional firm from Memphis, Tennessee, promised to have someone from his company contact petitioner to pursue the matter further. On a later date, the manager of the sales promotion department of Allen Bros. contacted petitioner and suggested that petitioner's property might be an ideal location for an office building. In April 1962, at the request and expense of Allen Bros., petitioner had a local engineering company make a survey of the four houses. During July 1962, petitioner released an article to a local newspaper suggesting the possible construction of an office building on his property. Also during July 1962, a realty company was designated by Allen Bros. to handle future leasing in the proposed building and Allen Bros. informed petitioner that his four houses should be removed as soon as possible. By a document dated January 25, 1963, Winthrop E. Dailey, Jr. (hereinafter Dailey), agreed to purchase a 50 percent interest in petitioner's four parcels of real estate for $66,250, provided certain conditions were met, the substance*262 of those conditions being as follows: 1. Petitioner, Dailey, and Allen Bros. were to be the organizers of a Michigan corporation to be called Saginaw Professional Building, Inc. (hereinafter the corporation). 2. The corporation's authorized capitalization was to be $100,000 represented by 100,000 shares of common stock having a $1 par value. Each share of common stock was to have one vote and equal dividend rights. 3. The paid-in capital was to be $10,200 represented by 10,200 shares, of which petitioner, Dailey, and Allen Bros. were to subscribe and pay for 3,400 shares each. 4. The corporate directors were to be petitioner, Dailey, and W. Harwell Allen. The resident agent was to be petitioner and the officers were to be as follows: President Vice president Secretary-treasurer Petitioner Dailey 5. If any shareholder decided to sell, pledge, or otherwise dispose of his shares, the corporation had a 60-day right of first refusal. If the corporation failed to exercise its right, the other shareholders were to be given the right to purchase, on a prorata basis, provided, however, that if a shareholder resold, within 5 years of purchase, any shares*263 acquired in this matter, he was required to pay to the original shareholder any profit made on the resale. 6. The corporation was to purchase the four parcels from petitioner and Dailey for $112,500, of which petitioner and Dailey would each receive one-half. 7. The corporation was to obtain a firm commitment on a permanent loan from Connecticut General Life Insurance Company for $700,000. 8. The corporation was to enter into a contract with Allen Bros. for the construction of an office building at a cost not to exceed $625,000. 9. The corporation was to obtain a firm commitment from Michigan National Bank, Saginaw, Michigan, to provide interim financing in an amount not less than $700,000. The agreement further provided that if any of the foregoing conditions were not met within 90 days, either petitioner or Dailey could terminate the agreement by notice in writing. In early 1963, the corporation was formed with petitioner as president and one-third owner. On March 19, 1963, the corporation entered into a 257 contract with Allen Bros. for the construction of a professional office building at a cost of $625,000. By an agreement dated May 19, 1963, petitioner and Dailey*264 sold the four parcels of real estate to the corporation for $112,500. The office building was subsequently constructed and is presently operated by the corporation. Petitioner, on his 1961 Federal income tax return, allocated the purchase price of the four parcels of real estate to land and buildings as follows: 7
The 1961 valuation of the land and buildings for assessment purposes, according*265 to the official records of the City of Saginaw, Michigan, were as follows:
On his Federal income tax return for 1963, petitioner claimed an ordinary loss for the demolition of the structures on 1600 and 1606 as follows:
Respondent, in his notice of deficiency, determined that petitioner was not entitled to deduct any ordinary losses for the years 1962 and 1963 with respect to the removal or demolition of the houses situated at 1600 through 1618. Opinion During 1961, petitioner purchased four houses, of which three were removed in 1962 and the fourth in 1963. Respondent's disallowance of petitioner's claimed loss deductions arising from the removal of the houses was based upon two grounds: first, that petitioner purchased the houses with the intent to demolish them, and secondly, that even if petitioner did not purchase them with such an intent, he has failed to establish the adjusted bases of those houses as of the time of demolition and removal. 258 Petitioner, of course, contends that he purchased the houses as income-producing investments without any intention to demolish and that the adjusted bases of the houses at the time of their demolition and removal were accurately reflected on his*267 books and records. As to the issue regarding petitioner's intent, it is now well established that where a taxpayer purchases real property improved by a building and at the time of purchase harbors the intention of demolishing the building, he is not entitled to a loss deduction under Where, as here, there is a purchase of land with the intent to demolish a building situated thereon and erect a new one, no part of the price paid is allocable to the building, since it is deemed that the building has no value to the purchaser and it is the land which is purchased and which alone has value. The entire purchase price, therefore, represents the cost of the land and becomes the purchaser's*268 basis. Petitioner's intention at the time he purchased the four houses is a factual question, requiring not only a consideration of all relevant facts and circumstances, but the reasonable inferences to be drawn from them. As is usual in cases of this type, there are a number of facts in favor of as well as adverse to petitioner's position. However, after carefully reviewing all the relevant facts, we think a preponderance of the evidence supports petitioner's position. Since both parties have relied on a number of the criteria enumerated in respondent's regulations, *269 We have found that petitioner's principal motive for acquiring the houses was to establish a source of income for the future education of his children. With no significant 259 prior experience in commercial real estate and only a relatively small cash outlay, petitioner went heavily into debt in order to begin his real estate investment program. At the time he purchased the houses, three were fully rented and the fourth, although vacant, was the best preserved of the group and appeared to offer even more income potential than the others. While it is true, as respondent so strenuously contends, that as the houses became vacant they were never rerented, it is equally true that nothing in the record suggests that such a situation was in any way brought on by petitioner's conduct. To the contrary, the record discloses that petitioner purchased furniture, drapes, curtains, bedspreads, and similar household items in an effort to make the houses as inviting as possible. With the help of his wife and children, he personally supervised the interior and exterior cleaning of the houses, hired mechanics to do the necessary maintenance and remodeling, spent over $300 for tree service alone, *270 and generally did whatever he felt was necessary to make the houses presentable. While we do not question the fact that petitioner wanted the houses to look their best when he went to the bank for refinancing, we think respondent places undue strain upon the facts when he contends that petitioner fixed the houses up solely or principally for the purpose of obtaining bank financing. The fact that petitioner purchased house accessories from departing tenants as well as placed a 5-year casualty policy on each dwelling soon after its purchase argues strongly against respondent's position. In addition, the record reflects a continuing effort by petitioner to rent the vacant houses, not only through newspaper advertisements, but also through personal solicitation of fellow employees and acquaintances. In addition, petitioner took the initiative on two separate occasions to reply to newspaper ads indicating an interest in houses to rent. Only after petitioner's numerous efforts to rent the vacant houses had failed did he finally come to realize that the financial burden of maintaining the houses as rental property was too great. Thus, on the advice of a real estate agent, petitioner finally*271 contracted for the demolition and removal of the houses in order to drastically reduce the cost of taxes and maintenance on the properties. Respondent contends that because petitioner eventually sold one-half of the underlying land to Dailey and they in turn sold the land to a corporation, of which they each owned one-third, for the purpose of constructing an office building, that course of conduct compels the conclusion that petitioner purchased the houses with the intent to demolish them and sell the underlying land. We think not. The evidence shows that the last of the four houses was purchased on August 15, 1961, whereas petitioner did not become interested in the possibility of commercially developing the land until he received a flyer in the mail in January 1962 indicating that his property might be valuable for a motel. However, it was not until at least several months later that petitioner seriously discussed with Allen Bros., who was to become the other one-third owner of the corporation, the possibility of constructing an office building on his land, and it was not until the spring of 1963 that petitioner and Dailey sold the land to the corporation for the purpose of erecting*272 the office building. We think the length of time between petitioner's purchase of the houses and the formulation of his plans to have an office building constructed is too great to support respondent's theory. Respondent attempts to bolster his argument by apparently contending that even if the eventual construction of the office building does not compel the conclusion that petitioner purchased the houses with the intent to demolish them, the fact that petitioner joined in the filing of a petition for rezoning does so. Petitioner acquired 1600 and 1606 in May 1961 and exercised his option to purchase 1612 and 1618 in August 1961. Since the petition for rezoning was filed on July 10, 1961, it is possible that even at the time petitioner purchased 1600 and 1606, he was aware that such a petition was to be filed and the possible effect it could have on the land on which the four houses stood. Conceding the possibility that petitioner was aware of the rezoning petition when he purchased the houses, we fail to see how that fact alone would necessitate a holding that he purchased with the intention to demolish. Petitioner's testimony convinces us that he believed that by supporting the*273 petition he would improve his chances of selling insurance to the chief proponent of the petition, Draper. Of more significance, however, is the fact that the land on which the four houses were situated was already zoned under a multi-family and professional office classification. Inasmuch as the building ultimately constructed on the four lots was a professional office building, there would seem to be no compelling reason for petitioner to urge a change in 260 zoning except for the reason stated, to develop goodwill in his insurance business. While we do not discard the possibility that petitioner supported the petition in the hope that if granted, his land would become more valuable, we cannot agree that petitioner's action compels the conclusion for which respondent contends. In this regard, the evidence indicates that although the City of Saginaw reviews land assessments annually, neither the granting of the rezoning petition nor the completion of the office building caused the assessor's office to increase the assessed value of petitioner's holdings. Of the criteria listed in respondent's regulations which are suggestive of an intent to demonish as of the time of acquisition, *274 Conversely, we think the facts in this case more clearly satisfy the criteria listed in Respondent contends, however, that even if petitioner did not acquire the houses with the intent to demolish them, he is not entitled to a loss deduction since he has not established the correct amount of the loss. Specifically, respondent argues that the purchase agreements on the four houses failed to allocate between the cost of land and buildings and further, that petitioner has failed to introduce any testimony on this point. While it is true that the purchase agreements did not allocate cost between land and buildings, it is not true that the record is devoid of evidence on this point. 261 Petitioner's accountant, who was familiar with such allocation problems, was personally aware of land values in the same area where petitioner's houses were located and relied on that knowledge to allocate the purchase price on petitioner's properties. While we do not consider the accountant's knowledge of real estate values, at least as reflected by his testimony, to be sufficient to make him an expert, neither do we think petitioner should be denied his entire claimed loss deduction on the ground that he has failed*278 to prove the correctness of the allocation used. In the absence of any other evidence to guide us, we think petitioner's loss deduction must be arrived at by using the following allocation percentages:
Accordingly, we hold that petitioner is entitled to a loss deduction on the demolition and removal of the four houses in an amount to be determined by applying the above allocation percentages. Decision will be entered under Rule 50. Footnotes
RelatedLynchburg Nat. Bank & Trust Co. v. Commissioner of Internal Revenue 208 F.2d 757 (Fourth Circuit, 1953) Providence Journal Co. v. Broderick 104 F.2d 614 (First Circuit, 1939) Lynchburg Nat'l Bank & Trust Co. v. Commissioner 20 T.C. 670 (U.S. Tax Court, 1953) Hillside Nat'l Bank v. Commissioner 35 T.C. 879 (U.S. Tax Court, 1961)
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