[122] OPINION.
Lansdon :
The parties agree that the depreciated book value of the real estate and machinery, consisting of the plant at Troy, Ohio, less the reserve for depreciation, was $187,682.25 at the signing of the [123] Armistice in November, 1918, and at January 1, 1919. Early in January, 1919, the petitioner ascertained that the business of manufacturing- aeroplane parts, for which its plant had been remodeled in 1917, had practically ceased to exist. It believed also that the styles of bodies for automobiles and the methods of manufacturing the same had been so changed during the war that there was no longer a profitable field for the use of its plant in that line. It found no opening either for profitable employment or sale of the plant, and, therefore, claimed a deduction of $87,682.25 as “ closing depreciation or obsolescence ” in its income and profits-tax return for 1919. The Commissioner disallowed the claim and allowed only a reasonable rate of depreciation on the alleged residual value of the plant. The petitioner has appealed from these determinations of the Commissioner. If this deduction is allowable it must be based on one or the other of the following provisions of the Revenue Act of 1918:
Sec. 284. (a) That in computing- the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions:
* * * * # 5 N *
(4) Losses sustained during the taxable year 'and not compensated for by insurance or otherwise;
*******
(7) A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence.
The petitioner’s contention that it is entitled to a deduction from gross income for the taxable year as obsolescence will be considered first. The assets here in question consisted of buildings and factory and office machinery, equipment, and fixtures. As the record discloses that none of this property was used in the trade or business of the petitioner during the year 1919, it is obvious that the alleged obsolescence, if any, occurred prior to the taxable year. If there was a progressive loss of value due to the causes alleged by the petitioner that loss culminated in obsoleteness at the date of the alleged abandonment of the property for the purposes for which it was acquired and is not deductible as obsolescence from the gross income of 1919.
The petitioner further contends that if the deduction claimed can not be allowed as obsolescence, it should have relief under the provisions of 234 (a) (4) of the Revenue Act of 1918 cited sufra. It proved that early in January it ceased manufacturing operations and that thereafter it never used its plant or equipment for any production purposes and that subsequent to that date its only business activities consisted in the liquidation of its assets. It made many unsuccessful attempts to sell the property, which it repeatedly offered for $100,000 and in one instance for $75,000. A sale appearing to be impossible, it leased the plant and equipment for a term of three [124] years at an annual rental of $10,000, out of which it was required to pay taxes, insurance and the expenses of all external repairs. Do these facts establish the petitioner’s contention that on account of unexpected changes, the property during the taxable year was reduced to a salvage value not in excess of $100,000 and thereby sustained a loss in the amount of $87,682.25 ? If there was such a loss do the facts bring it within the provision of the law which allows deductions from gross income on account of losses sustained during the taxable year and not compensated for by insurance or otherwise?
In support of its alternative contention the petitioner relies on the provision of the law cited above and on the Commissioner’s administrative interpretation of that provision, set forth in Regulations 45 as follows:
Art. 170. Closing depreciation account. — If the use of any property in the business is permanently discontinued, although no sale or other disposition of the property has taken place, a determination of any gain or loss may be made; but any deduction in respect of any loss thereon must be disclosed in the taxpayer’s return for the year in which the determination is made and a full statement of the facts and the basis upon which the computation is calculated must be attached to the return. Upon a sale or other disposition of the property, the consideration received shall be compared with the amount of the estimated salvage value used in computing the gain or loss as above provided, and the amount of the difference shall be treated as a gain or loss, as the case may be, of the year in which the sale or other disposition was made. See Articles 141-145.
Art. 143. Loss of useful value. — When through some change in business conditions the usefulness in the business of some or all of the capital assets is suddenly terminated, so that the taxpayer discontinues the business or discards such assets permanently from use in the business, he may claim as a loss for the year in which he takes such action the difference between the cost or the fair market value as of March 1, 1913, of any asset so discarded (less any depreciation sustained) and its salvage value remaining. This exception fo the rule requiring a sale or other disposition of property in order to establish a loss requires proof of some unforeseen cause by reason of which the property must be prematurely discarded, as, for example, where an increase in the cost of or other change in the manufacture of any product makes it necessary to abandon such manufacture, to which special machinery is exclusively devoted, or where new legislation directly or indirectly makes the continued profitable use of the property impossible. This exception does not extend to a case where the useful life of property terminates solely as a result of those gradual processes for which depreciation allowances are authorized. It does not apply to inventories or to other than capital assets. The exception applies to buildings only when they are permanently abandoned or permanently devoted to a radically different use, and to machinery only when its use as such is permanently abandoned. Any loss to be deductible under this exception must be charged off on the books and fully explained in returns of income. * * *
[125] The petitioner asserts that it has proved facts that bring it squarely within the provisions of section 234 (a) (4) of the Revenue Act of 1918 as interpreted by the Commissioner in the articles of the Regulations here quoted. It has written off its books a loss which it has measured and determined by capitalizing the earning power of the balance of assets carried forward. In its income and profits-tax return for 1919 it deducted the amount of the loss so determined and “made an explanation of the facts and the basis upon which the computation is calculated.” It avers that it accepted the regulations as its guide in this procedure and as the only guide under which it could make a return that truly reflected its income for the taxable year. The proof of loss and the petitioner’s explanation thereof did not convince the Commissioner and the deduction was not allowed.
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[122] OPINION.
Lansdon :
The parties agree that the depreciated book value of the real estate and machinery, consisting of the plant at Troy, Ohio, less the reserve for depreciation, was $187,682.25 at the signing of the [123] Armistice in November, 1918, and at January 1, 1919. Early in January, 1919, the petitioner ascertained that the business of manufacturing- aeroplane parts, for which its plant had been remodeled in 1917, had practically ceased to exist. It believed also that the styles of bodies for automobiles and the methods of manufacturing the same had been so changed during the war that there was no longer a profitable field for the use of its plant in that line. It found no opening either for profitable employment or sale of the plant, and, therefore, claimed a deduction of $87,682.25 as “ closing depreciation or obsolescence ” in its income and profits-tax return for 1919. The Commissioner disallowed the claim and allowed only a reasonable rate of depreciation on the alleged residual value of the plant. The petitioner has appealed from these determinations of the Commissioner. If this deduction is allowable it must be based on one or the other of the following provisions of the Revenue Act of 1918:
Sec. 284. (a) That in computing- the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions:
* * * * # 5 N *
(4) Losses sustained during the taxable year 'and not compensated for by insurance or otherwise;
*******
(7) A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence.
The petitioner’s contention that it is entitled to a deduction from gross income for the taxable year as obsolescence will be considered first. The assets here in question consisted of buildings and factory and office machinery, equipment, and fixtures. As the record discloses that none of this property was used in the trade or business of the petitioner during the year 1919, it is obvious that the alleged obsolescence, if any, occurred prior to the taxable year. If there was a progressive loss of value due to the causes alleged by the petitioner that loss culminated in obsoleteness at the date of the alleged abandonment of the property for the purposes for which it was acquired and is not deductible as obsolescence from the gross income of 1919.
The petitioner further contends that if the deduction claimed can not be allowed as obsolescence, it should have relief under the provisions of 234 (a) (4) of the Revenue Act of 1918 cited sufra. It proved that early in January it ceased manufacturing operations and that thereafter it never used its plant or equipment for any production purposes and that subsequent to that date its only business activities consisted in the liquidation of its assets. It made many unsuccessful attempts to sell the property, which it repeatedly offered for $100,000 and in one instance for $75,000. A sale appearing to be impossible, it leased the plant and equipment for a term of three [124] years at an annual rental of $10,000, out of which it was required to pay taxes, insurance and the expenses of all external repairs. Do these facts establish the petitioner’s contention that on account of unexpected changes, the property during the taxable year was reduced to a salvage value not in excess of $100,000 and thereby sustained a loss in the amount of $87,682.25 ? If there was such a loss do the facts bring it within the provision of the law which allows deductions from gross income on account of losses sustained during the taxable year and not compensated for by insurance or otherwise?
In support of its alternative contention the petitioner relies on the provision of the law cited above and on the Commissioner’s administrative interpretation of that provision, set forth in Regulations 45 as follows:
Art. 170. Closing depreciation account. — If the use of any property in the business is permanently discontinued, although no sale or other disposition of the property has taken place, a determination of any gain or loss may be made; but any deduction in respect of any loss thereon must be disclosed in the taxpayer’s return for the year in which the determination is made and a full statement of the facts and the basis upon which the computation is calculated must be attached to the return. Upon a sale or other disposition of the property, the consideration received shall be compared with the amount of the estimated salvage value used in computing the gain or loss as above provided, and the amount of the difference shall be treated as a gain or loss, as the case may be, of the year in which the sale or other disposition was made. See Articles 141-145.
Art. 143. Loss of useful value. — When through some change in business conditions the usefulness in the business of some or all of the capital assets is suddenly terminated, so that the taxpayer discontinues the business or discards such assets permanently from use in the business, he may claim as a loss for the year in which he takes such action the difference between the cost or the fair market value as of March 1, 1913, of any asset so discarded (less any depreciation sustained) and its salvage value remaining. This exception fo the rule requiring a sale or other disposition of property in order to establish a loss requires proof of some unforeseen cause by reason of which the property must be prematurely discarded, as, for example, where an increase in the cost of or other change in the manufacture of any product makes it necessary to abandon such manufacture, to which special machinery is exclusively devoted, or where new legislation directly or indirectly makes the continued profitable use of the property impossible. This exception does not extend to a case where the useful life of property terminates solely as a result of those gradual processes for which depreciation allowances are authorized. It does not apply to inventories or to other than capital assets. The exception applies to buildings only when they are permanently abandoned or permanently devoted to a radically different use, and to machinery only when its use as such is permanently abandoned. Any loss to be deductible under this exception must be charged off on the books and fully explained in returns of income. * * *
[125] The petitioner asserts that it has proved facts that bring it squarely within the provisions of section 234 (a) (4) of the Revenue Act of 1918 as interpreted by the Commissioner in the articles of the Regulations here quoted. It has written off its books a loss which it has measured and determined by capitalizing the earning power of the balance of assets carried forward. In its income and profits-tax return for 1919 it deducted the amount of the loss so determined and “made an explanation of the facts and the basis upon which the computation is calculated.” It avers that it accepted the regulations as its guide in this procedure and as the only guide under which it could make a return that truly reflected its income for the taxable year. The proof of loss and the petitioner’s explanation thereof did not convince the Commissioner and the deduction was not allowed.
We have given careful consideration to the evidence adduced by the petitioner and are not convinced that the facts warrant or that the law permits the deduction claimed. The obsolescence, if any, due to change in the art of automobile body building affected only the machinery. Some of the machinery was transferred to a body-manufacturing plant in another city, in which the petitioner was a stockholder, and some of it was transferred to and used by the lessee of the property, the Troy Body Corporation. The manager of the lessee testified that he was unable to make any profits because the machinery was out of date. This is not convincing. If the Troy Body Corporation could have secured business it may be assumed that it would have replaced any obsolescent or obsolete machinery with up-to-date equipment, especially as it had the use of a plant of large value at a rental that is alleged to have bepn little more than nominal. The buildings, making up the greater part of the value of the assets in question, were regarded by the lessee as suitable for and useful in a business identical with that which the petitioner had discontinued and that was conducted by the lessee for several years thereafter. There is no evidence that such buildings sustained loss of useful value in 1919 in the amount claimed bv the petitioner.
The loss sustained, if any, seems to have been in the nature of a shrinkage of value. Such losses can be taken as deductions from gross income only when they have been realized by the sale or other disposition of the property. We are not convinced that the lease of the property for an annual rental alleged to represent only a moderate return on the so-called residual value of $100,000 is disposition thereof that comes within any provisions of law authorizing the reduction of income by the deduction of losses sustained during a taxable year. The action of the Commissioner in disallow[126] ing the amount of $87,682.25 as a deduction from the gross income of the petitioner as for the year 1919, is approved.
It appears from the evidence that the petitioner took ordinary depreciation on only the alleged residual value of the assets in question. Since we have disallowed the deduction reducing the property to a value of $100,000, it follows that the amount of ordinary depreciation for the taxable year should be computed not on such residual value, but upon the book value of such assets, which the parties agree was $221,434.91. As there is no dispute as to the normal useful life of any of the property involved we leave this adjustment to be made under Kule 50.
In support of its claim that an amount of $6,081.21 included in its income and profits-tax return on account of a liability resulting from the receipt of materials not paid for should be deducted, the petitioner relies on the evidence of a single witness, who was its secretary and treasurer at the time of the transaction, and the making of the entries that are now alleged to have been erroneous. The witness testified that the amount represented the value of materials for the construction of aeroplane parts received from the Dayton Wright Aeroplane Co. during the prior year that had not been invoiced to it at the end of the year although the bills of lading therefor had been received.
The petitioner kept its books of account and' made its income and profits-tax returns on the accrual basis. No invoice of the material was ever received from the aeroplane company and it -was, therefore, impossible for the petitioner to accrue the cost of the merchandise. It received the materials, which were taken into its assets at the memorandum value of the parts and supplies at the date received. Since the petitioner never received an invoice for such materials and has never made any payment on the alleged value of such consignment, it is evident that it received and carried into its inventory merchandise in the amount of $6,081.21 for which it showed no corresponding liability, thus increasing its showing of income beyond the true income by that amount.
The writing off of this liability was bad bookkeeping; but there does not appear to have been any intention to defraud either the Government or the creditor. The amount written off was not a gain and was not income, and the United States is not entitled to tax it as such.
Judgment will be entered on 10 days’ notice, under Rule 50.