dissenting:
I.
As I read the present opinion, the real problem involved is not discussed. It arises as a question of recovery of basis and the nearest approach to suggesting that there is any such difficulty, is the decision here of an issue — not before us — as to what depreciation may be deducted by an imaginary purchaser of improved real property who paid more for it than he would for vacant land even though he did not thereby acquire title to the improvement.
It is presumably being held, gratuitously it seems to me, that when the improvement finally becomes worthless, or the valuable lease covering it comes to an end, and the real property reverts to the unimproved value it would have had without the improvement and lease in the first place, the consequent loss must either be taken all in 1 year, or possibly, since the opinion is obscure as to this, that it may never be taken at all. No cases are cited for this treatment and the authorities seem to me to be to the contrary.
II.
A somewhat similar situation was presented in Millinery Center Building Corp., 21 T.C. 811. There, the purchaser of the fee happened to be the ténant who had constructed the building but whose cost thereof had been fully depreciated. In order, as it insisted, to rid itself of a burdensome lease, it purchased the fee with whatever rights its landlord might have in the building. In denying to it any deduction for depreciation or amortization, we said, as the present opinion says: “We think that the bundle of rights which petitioner acquired by its contract of purchase * * * was so inextricably entwined in the acquiring of the land as not to be separable therefrom.” Six judges dissented. On appeal, the case was reversed (C.A. 2) 221 F. 2d 322. The Court of Appeals said, among other tilings:
Petitioner’s main argument throughout this litigation has been that the difference between the purchase price of $2,100,000 and the unimproved value of the land, $660,000, namely the sum of $1,440,000, should be deductible * * *. [I]t suggested amortization of this amount over the unexpired term of the lease, or its depreciation as an additional cost of acquiring the already fully depreciated building.
The Appellate Court refused to allow the deduction as an ordinary and necessary expense and pointed out that there, the lease haying merged with the fee, there could be no amortization of it. But it said (p. 324):
But the dissent seems more in accord with the realities of this situation. The taxpayer in acquiring this fee bought not only a reversionary interest in the land itself, but also a reversionary interest in the building which under the lease it would have had to surrender to the landlord when its term expired. A third-party purchaser of such a fee would he entitled to allocate part of its cost to the building and to depreciate it as such. [Emphasis added.]
The case went to the United States Supreme Court (350 U.S. 456) which affirmed the reversal by the Court of Appeals, saying (p. 460, 461) :
Petitioner’s claim that it “owned” the building is based on a loose and misleading use of “owned.” * * * It could make use of the building for the remainder of its economic life, but only on payment of the stated rent. * * * A complementary feature of the purchase of the lessor’s interests in the land and building was the elimination of the obligation to pay rent on the improved land. The purchase price presumably reflected this situation. * * *
* * * Petitioner has acquired two assets — land and a building — whose use it will have for the remainder of their useful lives, and petitioner therefore cannot amortize the cost allocable to the acquisition of the wasting asset over the term of the extinguished lease.
Accordingly, we affirm the judgment * * * leaving to the Tax Court the allocation still to be made. [Emphasis added.]
It would seem to follow that if a third person rather than Millinery Center had purchased the fee, two other consequences would ensue. Its purpose for the purchase would not be like Millinery Center to eliminate a burdensome lease but to acquire the benefit of the collection of a favorable rental; and it could not be said, as it was in Millinery Center, that the lease having merged with the fee, no deduction for amortization of the lease would be permissible. Some method of compensating the purchaser for the excess payment, corresponding in the Millinery Center case to $1,440,000, would have to be found to reconcile the decision there with that in the Millinery Center case.
Another example is the case of Bueltermann v. United States, (C.A. 8) 155 F. 2d 597, upon which we relied in Charles Bertram Currier, 7 T.C. 980. There, land upon which the building did not then belong to the owner of the fee was inherited, and as the Court there notes (p. 600) :
[F]or tbe purpose of tbe Federal estate tax tbe estate’s interest in tbe land, and in the building on the land, tbe property in wbicb taxpayer acquired a share by devise, was valued at $100,000. * * *
[A]n expert witness familiar with the land before the erection of the building testified that its value as vacant property at the time of the execution of the lease was $50,000. [Emphasis added.]
See also Frieda Bernstein, 22 T.C. 1146, affirmed per curiam (C.A. 2) 230 F. 2d 603.
III.
Wlien real property is acquired by devise it assumes a new basis in the hands of the devisee, consisting of fair market value at decedent’s death and established primarily for estate tax purposes. Of course, this will ordinarily be different from decedent’s basis, and what he could or could not recover would be quite different. But it is similar to the basis of cost established by an acquisition by purchase, and gain or loss on final disposition by the devisee, just as by the purchaser, will be measured by his own basis. This, as I read it, is what the Court of Appeals had in mind in Commissioner v. Moore, (C.A. 9) 207 F. 2d 265, reversing 15 T.C. 906, certiorari denied 347 U.S. 942.
Now it would be miraculous if, for estate tax purposes, respondent should value unimproved, unproductive land by the same formula as property producing a substantial net long-term income.1 We know from petitioner’s evidence that here, in fact, the values were different.2
The situation is brilliantly illustrated by the case of Albert L. Rowan, 22 T.C. 865, 870. There the Tax Court’s findings were:
The fair market value of tbe * * * property * * * without talcing into consideration the outstanding lease on the property was as follows:
Land _$300,000
*******
The fair market value of Ellen Rowan’s [decedent’s] entire interest in the * * * property on June 20, 1940 [the date of death], that is to say ineluding her interest in the land, building, and the lease, was $412,500. The Commissioner in arriving at this valuation for estate taw purposes * * * did so without ascribing any valuation to [decedent’s] reversionary interest in the land and building at the end of the term of the lease. ' Sis valuation was based upon capitalizing the annual rental * * * [Emphasis added.]
There was thus a difference between the bare land value3 and decedent’s interest, which of course the taxpayer in the Bowtm case partly inherited, of $112,500.
This difference in value, which will disappear with the improvement and the lease when the real property reverts to its unimproved valuation, should be recovered over the life of one or the other. Otherwise what is really a return of basis will appear to be taxable income. The Rowan case was, however, probably decided correctly, since the present issue and the one raised in the Moore case was for some reason not there presented.
IV.
We tried to meet this overall problem in Charles Bertram Currier, supra, where, for want of a better approach, a part of the devisee’s basis was assumed to be in the building, even though he did not own it. In this we were mistaken, as witness the Courts of Appeals of the Fifth and Ninth Circuit, although in Commissioner v. Pearson, 188 F. 2d 72, reversing 13 T.C. 851, certiorari denied 342 U.S. 861, the Court of Appeals for the Fifth Circuit specifically refrained from repudiating the doctrine of the Currier case. But what is of real significance here is that the only other reversal, Moore, sought to solve the obvious problem by the very means which the present opinion rejects, namely, to incorporate in the total value some element for the lease itself which will eventually terminate and for which depreciation should accordingly be available. The- problem has not been illuminated by the failure of the Supreme Court to grant certiorari in Moore, which appears to present an irreconcilable conflict with Friend v. Commissioner, (C.A. 7) 119 F. 2d 959, affirming 40 B.T.A. 768, certiorari denied 314 U.S. 673.
It seems to me to be of little consequence whether the asset being permitted to justify depreciation, or, if you prefer, amortization, is stated to be the interest in the building, the lease, or some other intangible which is either different or a combination of the two. The inescapable economic fact is that the estate tax was paid on a higher value because the property was improved and leased; that this differential will eventually disappear; and that some consideration must necessarily be given it.
There is a suggestion in Pearson that what has been said about a basis for gain or loss would not apply to this situation because we are concerned here with basis for depreciation. See Bueltermann v. United States, supra. This proposition, which also appears in Friend v. Commissioner, supra, is, we think, set at rest by the statement in Commissioner v. Moore, supra at 275:
What we have said discloses that we do not agree with the quoted statement. We think that the court there failed to note that Sec. 114(a) provides that the basis for depreciation is the same basis provided in Sec. 113.
For the reason that in my opinion some consideration must be given to the excess value incorporated in the estate tax appraisal and that some depreciation thereon should be computed, I respectfully note my dissent.
DbeNNEN, J., agrees with this dissent.In Albert L. Rowan, 22 T.C. 865, 873, we said: “It seems plain that in the instant case the Commissioner in valuing the interest of Ellen Rowan in the Gulf States Building property at $412,500 did so solely by capitalizing the ground rental of $16,500 at 4 per cent for the remaining term of the lease.” This, of course, would have been an impossible procedure as to vacant and unproductive land.
Of course, the question is purely theoretical in a specific case since it would be impossible to find an instance of two exactly identical pieces of real property, one improved and the other vacant. All that can be done is what was attempted here — a comparative valuation by an opinion witness.
It is true that in Commissioner v. Pearson, (C.A. 5) 188 F. 2d 72, reversing 13 T.C. 851, certiorari denied 342 U.S. 861, which happened to involve the same property as Rowan, the Court assumed that the estate tax valuation was for the land only and that this is accepted in Commissioner v. Moore (C.A. 9) 207 F. 2d 265, where, referring to the Pearson case, the statement is made (p. 270):
It is true that under the facts of that case it appeared from the record that the sum of $412,500, fixed as the value of the ancestor’s interest in the property for estate tax purposes, had been based upon the value of the land alone. That fact made the case an easy one to decide. [Emphasis added.]
But on the more amplified record in the Rowan case as detailed above these factual statements were — although understandably — -in error. And in the Pearson case, had the valuation been based upon the value of the land alone, it would have been $300,000 and not $412,500.