dissenting: I am unable to agree to the prevailing opinion in this proceeding. I think that this case is controlled by the doctrine laid down by the Circuit Court of Appeals for the Second Circuit in the case of Bonwit Teller & Co. v. Commissioner, 53 Fed. (2d) 381, which was followed by the Court of Claims in 719 Fifth Avenue Co. v. United States, 5 Fed. Supp. 909. In Bonwit Teller & Co. supra, the court said:
It was also error to extend beyond the term of the lease the period over which exhaustion of the leasehold is to be spread. The renewal privilege had not been exercised and may never be. There was no evidence as to the value of this privilege as a separate element in the valuation of the leasehold. * * * The problem is to compute the amount of exhaustion during the taxable year of “property used in the business”. The property here in question was a leasehold having nineteen years to run, and containing an option (o renew for twenty-one years at a rental to be determined by an appraisal of the property to be made at the time of renewal. Despite the uncertainty of the rental to be paid during the extension, the option may give additional value to the lease, just as many other types of provisions might give the lease value. But it is still true that the property being used in the business (the leasehold) will be exhausted in nineteen years. If the option should be exercised at the end of the existing term, there will be created a new term (new property) to be thereafter used in the business. The new term, when created, may or may not have value; if it has, allowance for the exhaustion of such new term will be in order. Let it be supposed that the option contained in the lease in question were to purchase the property at the end of the term. Such an option might readily enhance the value of the lease, but it could hardly be supposed to change the period during which the lease will become exhausted. Similarly in the case at bar we see no basis for extending the period of exhaustion beyond the end of the term which was valued. See Appeal of Lenox Land Co., 5 B.T.A. 1206, 1210; Hinkel Dry Goods Co. v. Commissioner, 10 B.T.A. 228.
There is no testimony in the record which indicates what value, if any, the option to renew the lease had. The stipulation states specifically that petitioner has not decided as yet to renew the lease at the *916expiration of the first term of 21 years; nor has it given any indication of its action in that regard.
Where one makes improvements, which are fixtures in their nature, upon the property of another, the title to such improvements is in the owner of the land; and if such improvements are made by the lessee, in the absence of a specific contract, when the lease expires such fixtures, having become a part of the realty, belong to the lessor. Where the lessee of vacant property makes valuable improvements in the nature of fixtures on such property, the expenditures made by the lessee for this purpose become to him a part of the cost of his lease. I am unable to see how in arriving at the cost of the lease we may separate and treat in a different manner that which the lessee pays in money directly to the lessor and that which he expends in the improvements of the lessor’s property, and I am of the opinion that such expenditures constitute a part of the cost of the leasehold to the lessee, and that for the purposes of taxation such expenditures should be treated in no different manner from that where the entire consideration for the lease is paid in cash.
The whole scheme of income taxation is built on an annual accounting period, and to postpone until the end of the term a substantial portion of the cost of the lease, on the assumption that if the lease is not renewed the lessee will be entitled to a loss for the portion of his expense not ratably deducted on his annual returns during the period of the lease, results in a distortion of income inconsistent with the theory of annual accounting periods. Moreover, the lessee may not realize income on the last year of his term from which he can deduct, as a loss, the balance of his expenditure.
In Hewitt Realty Co., 29 B.T.A. 1205, we had before us the lessor of real property on which the lessee had erected a valuable building which became the property of the lessor, subject to the lease. In that case the original lease was for the term of 21 years, with three possible renewals for like terms. The useful life of the building so erected was 40 years. In that case the Commissioner determined that the estimated depreciated value of the building at the date of expiration of the original term of the lease represented income to the lessor and added an aliquot part of income for the taxable year. This determination of the Commissioner we sustained. There the petitioner, lessor, contended that it realized no income from the erection of the building by the lessee. It argued that the lessor had only the title without enjoyment or beneficial use of the building. In that case we said:
In Cryan v. Wardell, 263 Fed. 248, where the Government attempted to tax to the lessor the entire value of a building erected by a lessee, at the termina*917tion of the lease, the court said: “ It results that whatever accession of value resulted to plaintiff's property from the erection of the building in question accrued and became vested in her in 1910 (the date of its completion) and not upon the termination of the lease.” To the same effect is Miller v. Gearrin, 258 Fed. 225. In United States v. Boston & Providence R.R. Corp., 37 Fed. (2d) 670, the court said:
“A building erected on leased land under a covenant in the lease that it shall become and remain a part of the realty and the property of the lessor is treated by the Revenue Department, and properly so, as income of the lessor, presumably upon the ground that, on becoming a part of the realty, it has enhanced the value of the lessor’s property to the amount it has added to its fair market value; and, while its cost as to the lessee may be treated as so much rental and be spread over the entire term of the lease in computing his income tax, the fair market value it has added to the lessor’s property is taxable to the lessor in the year in which the building was constructed. Miller v. Gearin, supra; Cryan v. Wardell, supra.”
I am persuaded that an equitable application of the rule therein laid down requires the reversal of the Commissioner’s determination in this proceeding.
I think that under the facts in this case the petitioner should be permitted to take as an allowance for depreciation an aliquot part of the cost of the improvements over the unexpired term of the original lease.
The prevailing opinion cites as authority for its holding 379 Madison Avenue, Inc. v. Commissioner, 60 Fed. (2d) 68, for the purpose of showing that the Circuit Court of Appeals in that case based its decision on the fact that the lease would in all probability not be renewed. This I think to be too narrow a construction of that opinion. I believe that that case was decided under the doctrine laid down in Bonwit Teller & Co., supra.
The prevailing opinion cites 353 Lexington Avenue Corp., 27 B.T.A. 762, as authority for the holding here. I agree that that case is controlling, but, in my opinion, the holding there was erroneous and should be overruled.
In substance, the holding of the majority in this case would permit the Commissioner to speculate as to what contract the parties would or might enter into in future and would permit this Board to make findings upon what it presumed would be done by parties in relation to their business affairs and property hereafter. I think that, in the absence of some testimony, we would not be justified, in indulging in such speculation.
Entertaining these views, I believe the determination of respondent should be reversed.
Lansdon and Seawell agree with this dissent.1