*791 Petitioner acquired certain assets in a tax-free reorganization but did not succeed to the leasehold of its predecessor. Held, that petitioner is not entitled to depreciation on leasehold improvements made by the old corporation even though petitioner occupied the premises.
*979 The Commissioner determined a deficiency in petitioner's income tax for the fiscal year ended January 31, 1939, in the sum of $18,975.99. The sole question before the Board is whether or not petitioner is entitled to depreciation on leasehold improvements made by petitioner's predecessor.
FINDINGS OF FACT.
Petitioner, sometimes hereinafter referred to as the new company, was organized under the laws of the State of New York on July 6, 1933, as the Commercial Operating Co. Since its organization petitioner has reported its income on the accrual basis. Petitioner's Federal income and excess profits tax return for the taxable year was filed with the collector of internal revenue for the third district of New York on July 15, 1939.
Under date of April 7, 1930, Bonwit*792 Teller & Co., sometimes hereinafter known as the old company, leased from the 721 Fifth Avenue Corporation, hereinafter called 721 Fifth, certain improved property in the city of New York known as 721 Fifth Avenue (hereinafter referred to as the demised premises) for a period commencing May 1, 1930, and ending July 31, 1951. This lease provided for the payment of an annual fixed rent of $475,000 and for the payment by the lessee of all taxes against the property.
In 1931 the old company made certain improvements to the building located on the demised premises at a cost of $618,964.64. These improvements were permanent in character and not removable by the tenant. At the time of their installation said improvements had, and at all times subsequent thereto continued to have, an estimated useful life of 20 years from the date of their installation, and to and including July 1, 1933, were depreciated by the old company on its income tax returns at the rate of 5 percent per annum.
The depression began to affect the old company's business so that the volume of sales fell off and losses were incurred. It became apparent that the old company could not continue to exist under the*793 burdensome fixed rental of $475,000 a year. The old company and 721 Fifth entered into negotiations by which the old company in 1931 obtained a reduction of the fixed annual rental to $300,000. Business grew steadily worse and the old company constantly negotiated for the reduction of rental. In 1932 721 Fifth became involved in financial difficulties because of its inability to meet interest payments on mortgages on the demised premises held by the City Investing Co. After discussions among representatives of the old company, 721 Fifth, and the City Investing Co., it was finally agreed that the old company should pay a rental amounting to 5 percent of its total actual receipts from sales made by it on the demised premises, with a fixed minimum *980 rental of $100,000 a year, and that the rental was to be paid directly to the City Investing Co. as mortgagee. 721 Fifth insisted upon the inclusion of a 90-day cancellation clause in the proposed lease so that 721 Fifth might be protected in the event that it might rent to another lessee on better terms.
Pursuant to this agreement the old company and 721 Fifth, under date of December 14, 1932, executed a new lease for the*794 period from December 14, 1932, to September 30, 1938, providing for a rental of 5 percent of the old company's receipts from sales on the premises, with a fixed minimum of $100,000 a year. A provision of the lease permitted the lessor to terminate the lease on 90 days' notice and provided that the right of the lessor to terminate the lease upon such notice was an essential condition of the lease. Concurrently with the execution of the lease of December 14, 1932, 721 Fifth delivered to the City Investing Co. an instrument by which the City Investing Co. was placed in control of the demised premises as mortgagee in possession and thereby became entitled to receive all rents from the old company due under the lease of December 14, 1932, and to exercise all rights reserved to the landlord thereunder.
Inventories of the old conpany became depleted and new capital was required. Floyd Odlum, president of the Atlas Corporation, which controlled the old company, stated to the board of directors of the old company that it was impossible to obtain new capital so long as the lessor retained the right to cancel the lease upon 90 days' notice. Odlum attempted to have the 90-day provision*795 abrogated but was unsuccessful. Odlum then proposed a plan whereby the assets of the old company might be transferred to a new corporation which might remain in possession of the premises without assuming the lease. It was thought that the new corporation, being on a more equal footing with the lessor as regards cancellation of the lease, would be in a better position to bargain with the lessor.
Under date of July 25, 1933, as of the close of business on June 30, 1933, the old company transferred to petitioner, in exchange for shares of petitioner's capital stock, all of its assets of every kind and description, real, personal and mixed, "including furniture, fixtures, improvements and equipment," except the lease on the demised premises and all other leases, subject to all liabilities of the old company, except liabilities represented by certain outstanding notes, contingent liabilities, and liability under the aforesaid leasehold estates. This transfer was part of a tax-free reorganization resulting in neither profit nor loss to the old company and no profit or loss was reported on this transaction by the old company.
Immediately after this transfer, and as of the effective*796 date thereof, the new company entered as assets on its books of account all of the property of the old company above referred to, at the same amounts *981 as carried on the books of the old company. Included in such assets entered on the books of the new company at the same amounts as carried on the books of the old company were said improvements to the building located on the demised premises which were made by the old company in 1931 as aforesaid. In the month of December 1936 the books of the new company were rewritten as of July 1, 1933, and at that time the values of certain assets carried over from the books of the old company to the books of the new company were revised and written down. Among the assets so carried over and written down were the improvements to the building made by the old company in 1931. They were written down to the sum of $1.
Since the effective date of the transfer of the assets from the old company to petitioner, petitioner has claimed depreciation on the improvements made by the old company to the building on the demised premises in 1931 at the same rate as claimed by the old company prior to the transfer of the assets to the new company. *797 The returns for the old company during the period 1931 to July 1, 1933, and for the new company during the period July 1, 1933, to and including January 31, 1936, showed losses for each year and were duly audited by the Commissioner of Internal Revenue and accepted as correct. If petitioner were entitled to depreciate the improvements made by the old company to the demised premises in 1931, the amount deductible in the taxable year would be in the sum of $30,761.15.
On or about July 20, 1933, by proceedings duly filed with the Secretary of State of New York, petitioner's name was changed from "Commercial Operating Company" to "Bonwit Teller, Inc." and the old company's name was changed from "Bonwit Teller & Company" to "Commercial Operating Company."
On July 31, 1933, and on July 31, 1934, petitioner made additional improvements to the building located on the demised premises at a cost of $3,627.61 and $114, respectively, which improvements likewise had, and at all times subsequent thereto continued to have, an estimated useful life of 20 years from the dates of their installation.
Arnold Constable & Co., of which 721 Fifth was a wholly owned subsidiary, began litigation*798 to set aside the transfer of assets from the old company to the new company. Thereupon, the old company filed a voluntary petition in bankruptcy and, on August 4, 1933, was adjudicated a bankrupt by the District Court of the United States for the Southern District of New York.
On or about September 6, 1933, the Irving Trust Co. was appointed trustee in bankruptcy in the bankruptcy proceedings of the old company and, on or about October 10, 1933, the trustee in bankruptcy advised 721 Fifth of its election to refuse to adopt the lease on the demised premises for the benefit of the bankrupt estate.
*982 An offer of composition was made to the old company's creditors which provided for distribution to the creditors of the shares of petitioner received on the transfer to petitioner of the old company's assets. The referee in bankruptcy of the old company determined that the transfer of assets to petitioner in exchange for stock of petitioner was not fraudulent and approved the offer in composition. This action was approved by the District Court and, upon appeal, was affirmed by the Circuit Court of Appeals for the Second Circuit. Certiorari was denied by the United States*799 Supreme Court. After the effective date of the transfer of its assets to petitioner the old company ceased to do business of any kind and did not thereafter file any Federal income tax returns or state franchise tax returns. The old company was dissolved by a promulgation of the Secretary of State of New York on December 15, 1937.
The attorneys for the new company were of the opinion that the new company's interest would be better protected if the Atlas Corporation, which held the controlling interest in petitioner, acquired the mortgage held by the City Investing Co. Negotiations were initiated leading to the acquisition of the mortgage by the American Co., a wholly owned subsidiary of the Atlas Corporation.
On or about April 1, 1936, the mortgage on the demised premises held by the City Investing Co. was duly assigned to the American Co. Concurrently therewith, the City Investing Co. assigned to the American Co. its right as mortgagee in possession of the demised premises, entitling the American Co. to receive all rents from the tenant under the lease dated December 14, 1932, and to exercise all of the rights reserved to the landlord thereunder. Concurrently with the assignment*800 of the mortgage, the City Investing Co. assigned to the American Co. the lease dated December 14, 1932, which had previously been assigned to it by 721 Fifth.
Negotiations were then begun for the acquisition of the equity ownership of the demised premises. The American Co. organized a wholly owned subsidiary, the Fifty Six & Fifth Corporation, for the purpose of acquiring the fee simple absolute of the demised premises from 721 Fifth. On or about March 30, 1937, 721 Fifth and Fifty Six & Fifth Corporation entered into an agreement for the sale of the demised premises. The agreement provided that the sale should be subject to the leases of April 7, 1930, and December 14, 1932, to the agreement of December 14, 1932, between 721 Fifth and the City Investing Co., allowing the latter to become mortgagee in possession, to the assignment of the lease of December 14, 1932, to the City Investing Co., and to the rights of the tenant in possession.
Pursuant to the agreement of March 30, 1937, and under date of April 20, 1937, 721 Fifth returned and released the demised premises *983 to the Fifty Six & Fifth Corporation. The instrument of sale stated that the premises were conveyed*801 subject to:
* * * a certain agreement dated December 14, 1932 between 721 Fifth Avenue Corporation and City Investing Company, which among other things, provided for the entry of the holder of said combined second mortgage above referred to into possession of the mortgaged premises, as mortgagee in possession.
Subject also to rights of present tenants.
Under date of December 1, 1937, petitioner and the Fifty Six & Fifth Corporation, then owner of the demised premises, executed a lease of the demised premises at a stated rental for a term beginning December 1, 1937, and ending January 31, 1950. Fifty Six & Fifth reserved no right to enter the demised premises prior to expiration of the term except upon breach of covenant by the lessee.
The business of the old company conducted at the demised premises prior to the effective date of the transfer has been continued thereat by petitioner without interruption since the effective date of the transfer; the officers, personnel, and staff of the old company became the officers, personnel, and staff of the petitioner on or about the time of the transfer and remained as such for some time thereafter. From on or about April 7, 1930, to*802 the date of the transfer the old company remained in physical possession of the demised premises and of the improvements from the date of their installation. Since the effective date of the transfer the petitioner has continuously occupied said premises, together with the improvements made by the old company and the improvements made by the petitioner in 1933 and 1934 as aforesaid, and during that entire period all of said improvements were used, and still are used, by the petitioner in its trade or business on the premises.
Pursuant to demand of the City Investing Co., as the then mortgagee in possession of the demised premises, petitioner duly paid to the City Investing Co. for the period commencing August 1, 1933, and ending March 31, 1936, "the moneys equal to the amount of rent, and additional rent measured by the percentage of sales made by petitioner in the 'demised premises'" as provided in the lease dated December 14, 1932. Pursuant to demand of the American Co., petitioner, during the period commencing April 1, 1936, and ending November 30, 1937, paid to the American Co., the then mortgagee in possession of the demised premises, "the moneys equal to the amount of rent, *803 and additional rent measured by the percentage of sales made by petitioner in the 'demised premises'" as provided in said lease dated December 14, 1932. Other than the leases dated April 7, 1930, and December 14, 1932, no written lease was executed with either the owner or the mortgagee in possession of the demised premises until December 1, 1937.
At no time has 721 Fifth entered on its books the cost or the value of the improvements to the building located on the demised premises *984 made by the old company in 1931 as aforesaid, and by the petitioner in 1933 and 1934 as aforesaid, and at no time has 721 Fifth made any claim in its income tax returns for depreciation on said improvements.
Upon the acquisition by the Fifty Six & Fifth Corporation of all of the right, title, and interest of 721 Fifth in and to the demised premises, the premises were entered on the books of the Fifty Six & Fifth Corporation at their cost, measured by the consideration of $500,000 paid by it and the amount of the mortgages on the demised premises assumed by it. The total cost to the Fifty Six & Fifth Corporation, computed as aforesaid, $5,808,894.82 and $2,219,224.37, or 38.2039 percent*804 (the percentage of the assessed value of the building to the assessed value of land and building) was entered on the books of the Fifty Six & Fifth Corporation as the cost of the building on the demised premises. On its income tax returns the Fifty Six & Fifth Corporation has claimed an estimated useful life of said building of 25 years from April 1, 1937, and has deducted depreciation thereon at the rate of 4 percent per annum on the value of the building computed as aforesaid.
OPINION.
ARUNDELL: The question before us is whether or not petitioner is entitled to depreciation on certain leasehold improvements made by petitioner's predecessor. Petitioner contends that the right to depreciation depends upon the right to the continued use and enjoyment of the property. It maintains that the old company made improvements and was entitled to depreciate the amounts expended on the basis of the probable useful life of the improvements and that petitioner stands in the shoes of the old company for purposes of determining petitioner's right to depreciate the cost of the improvements. Respondent argues that upon cancellation of the lease of April 7, 1930, the old company lost possession*805 of the property and, in consequence thereof, lost its right to depreciate the improvements.
It is clear that depreciation may be taken by a taxpayer on its capital investment in property used in its trade or business even though title to the depreciable property is vested in another. . We are of the opinion, however, that petitioner is not entitled to depreciation, regardless of whether we look to title of the property or to the right to its continued use and enjoyment.
Careful analysis will demonstrate that petitioner's contention has no sound basis. Petitioner is attempting to use in the taxable year the basis of the old company. Petitioner did not make or pay for the improvements. Only property transferred in a nontaxable reorganization may be taken up on the new company's books at the old basis. *985 See sec. 113(a)(7), Revenue Act of 1938. Here petitioner received no property from the old company which would entitle petitioner to the claimed depreciation. Admittedly, title to the improvements vested in the original lessor under the 1930 lease. Thus, it was not title which passed to petitioner. The*806 right to use property which is subject to lease obviously must be derived from the lease agreement. The lease under which the improvements were made by the old company was not the lease in effect at the time the old company transferred its assets to petitioner. The lease of December 14, 1932, effectually canceled the 1930 lease. The 1932 lease gave petitioner's predecessor the right of use of the premises, but contained a clause which would permit the lessor to cancel the lease upon 90 days' notice. It was this provision which caused the reorganization of the business so that petitioner received all the assets of the old company, with the exception of the lease, and liabilities thereunder and certain other leases. The instrument transferring the assets to petitioner specifically stated that the lease was not part of the transfer. Thus petitioner did not receive the lease. Since the lease is essentially tied up with the right to use the improvements, it necessarily follows that petitioner did not receive the right to use the improvements other than at the sufferance of the lessor.
Petitioner is here attempting to derive a tax advantage from the depreciation of property which*807 it never acquired and for which it never paid. The transfer of the old company's assets to petitioner in exchange for petitioner's stock did not cause the depreciable property to pass to petitioner. We are struck by the fact that the controlling powers of the old company, and subsequently of petitioner, went to great length to absolve petitioner from liabilities under the lease. We are of the opinion that petitioner can not, on the one hand, for purposes of bargaining with the lessor, disavow the lease and, on the other, assert its validity. Petitioner can not derive any rights of use under a lease which specifically was not transferred to it.
Petitioner relies upon the case of ; rehearing denied, . That case is authority for the proposition that an assignee who pays valuable consideration for a lease may depreciate the cost or purchase price of improvements. The case is clearly distinguishable from the instant one in that here nothing was transferred.
The lease of December 14, 1932, suggests a further ground for sustaining respondent's determination. *808 That lease effectually terminated the original lease between 721 Fifth and the old company. The Supreme Court has laid down the rule that a lessor may realize income upon improvements to realty made by the lessee, upon cancellation or termination of the lease. . Thus, at the time the lease of December 14, 1932, was entered into, 721 Fifth may have realized income on the improvements to the realty. See . It is difficult to find any right to a basis for depreciation in the lessee after that time. It should be noted that in the taxable year a third lease was in effect under which petitioner was lessee and the Fifty Six & Fifth Corporation was lessor. Thus, all parties to the lease in force during the taxable year were different from those of the original lease.
The record of this proceeding is not sufficient for us to determine that the amounts paid by petitioner for building improvements in 1933 and 1934, aggregating $3,741.61, should have a treatment differing from the sum of $618,964.64 expended by the old company in 1931. Respondent's determination*809 that petitioner is not entitled to depreciation on the amounts expended for building improvements is sustained.
The parties have stipulated that petitioner is entitled to deductions not claimed on its return for the taxable year for New York City business taxes in the sum of $645.73, New York City sales taxes in the sum of $840.04, and an additional deduction for New York City franchise taxes in the sum of $7,409.40. These adjustments will be reflected upon recomputation.
Decision will be entered under Rule 50.