dissenting: “Taxes paid or accrued within the taxable year” are deductible from gross income. Sec. 23 (c), Eevenue Act of 1938.
On August 1, 1938, petitioner acquired real estate in the city of Chicago at a cost of $33,000. Under the terms of the contract of purchase, dated February 26, 1938, rents, water taxes, and insurance premiums were to be adjusted pro rata between the seller and the purchaser as of the date of delivery of the deed, which was on August 1, 1938. On that date there were delinquent taxes due on the property. The grantor was charged with those delinquent taxes and also with seven-twelfths of the taxes payable for the year 1938. From August 1, 1938, the petitioner was the owner of the property and received the rents therefrom. It accrued upon its books for the balance of the calendar year five-twelfths of the taxes for the taxable year. It claimed the deduction of those taxes in its income tax return for *10901938. The respondent says that these may not be deducted and that they must be treated as a part of the cost of the property. The Board sustains the respondent upon this point.
The net result of this holding is that the full deduction of the taxes paid upon the real estate for 1938 is available to no one. I do not think that is the proper construction of the statute. I think that Congress intended that the full amount of the current year’s taxes is deductible by some one. Manifestly, the grantor is not entitled to the deduction of the taxes for the period August 1 to December 31, 1938, because it was not chargeable with them and did not pay them. But I can not see why the grantee, which was the owner of the property and received the income of the property from August 1, 1938, and which paid the taxes, is not entitled to deduct them.
It is quite apparent that the rulings of the Board and of the courts in some tax cases which have come before them are entirely out of line with commercial practice. Ordinarily taxes are adjusted to the date of sale between seller and purchaser. They do not constitute a part of the price at which real estate is sold. The cost of the Chicago real estate purchased by the. petitioner in 1938 was $33,000. That was the price that the seller received. Why should a portion of the taxes representing five-twelfths of the 1938 taxes be added to the cost? It seems to me entirely immaterial that the taxes became a lien on the property on April 1, 1938.
I entirely agree with the opinion of the court in Supplee v. Magruder, 36 Fed. Supp. 722. The court’s opinion is, I think, in line with the reasoning of many Board and court opinions. See Patrick Cudahy Family Co., 36 B. T. A. 1147; affd. (C. C. A., 7th Cir.), 102 Fed (2d) 930; New Orleans Cold Storage & Warehouse Co., Ltd., 40 B. T. A. 121; Carondelet Building Co. v. Fontenot (C. C. A., 5th Cir.), 111 Fed. (2d) 267; Commissioner v. Coward (C. C. A. 3d Cir.), 110 Fed. (2d) 725; Estate of H. L. Rust, 41 B. T. A. 832; affd., Commissioner v. Rust (C. C. A., 4th Cir.), 116 Fed. (2d) 636.
It is furthermore to be noted that the petitioner kept its books of account on the accrual basis. In United States v. Anderson, 269 U. S. 422, the Supreme Court said that the accrual basis was for the purpose of enabling taxpayers to “make their returns according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred in and properly attributable to the process of earning income during that period.” Under the contract by which the petitioner purchased the Chicago real estate it was required to pay the taxes that were “properly attributable” to the period after August 1, 1938. It is in reason to say that those taxes were a charge against the income of the property during the ownership by the petitioner.