Elliston v. Commissioner

SAM H. ELLISTON, JR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Elliston v. Commissioner

Docket No. 6722-71.

United States Tax Court

T.C. Memo 1973-4; 1973 Tax Ct. Memo LEXIS 282; 32 T.C.M. (CCH) 18; T.C.M. (RIA) 73004;

January 8, 1973, Filed

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Held, that petitioner is not entitled to a loss deduction when the insurance proceeds received are greater than the adjusted basis of the property destroyed by fire.

Sam Elliston, Jr., pro se.

Charles L. McReynolds, for the respondent.

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WILES

MEMORANDUM FINDINGS OF FACT AND OPINION

WILES, Judge: Respondent determined a deficiency in the petitioner's income tax for the calendar year 1967 in the amount of $347.80. 2

The only issue for our decision is whether the petitioner is entitled to a loss deduction with regard to the destruction by fire of an apartment with an adjusted basis of $460 when the petitioner received $1,700 as insurance proceeds.

FINDINGS OF FACT

Sam H. Elliston, Jr. (herein referred to as petitioner) was a resident of Fort Worth, Texas, at the time he filed the petition in this proceeding. He filed his Federal income tax return for the year 1967 with the district director of internal revenue at Dallas, Texas.

In 1932 petitioner acquired a lot upon which a house and a garage were located. In 1950 petitioner converted the garage to an apartment to be rented. The petitioner's basis in the converted apartment was $4,600. In 1967 the apartment was destroyed by fire. As the result of deductions for depreciation, the adjusted basis of the apartment at the time of the fire was $460. The petitioner received insurance proceeds of $1,700 as compensation for the destruction of the apartment. On his tax return for the year 1967 the petitioner claimed a business loss deduction of $2,000 with regard to the destruction of the apartment. 3

OPINION

Petitioner contends that his loss deduction should be computed by subtracting $1,700, the insurance proceeds, and $400, for depreciation, from $4,100, the lowest bid received to rebuild the house. We are unable to accept petitioner's argument.

Section 165 of the Internal Revenue Code of 1954 provides that an individual shall be allowed a deduction for losses incurred in a trade or business. Section 1.165-1(c) (1), Income Tax Regs., provides that the basis of the property must be properly adjusted as prescribed by section 1.1011-1 of the regulations for such items as depreciation in order to determine the amount of loss allowable as a deduction. Section 1.165-1(c) (4), Income Tax Regs., provides that in determining the amount of loss actually sustained for purposes of section 165(a), proper adjustment shall be made for any insurance received. The petitioner received insurance proceeds of $1,700 as the result of the destruction of an apartment with an adjusted basis of $460. Accordingly, petitioner is not entitled to a loss deduction pursuant to section 165(a).

Decision will be entered for the respondent.