1928 BTA LEXIS 3701">*3701 1. Certain payments received by the partnership of which the petitioners were members were income as determined by the respondent.
2. Claim for deduction of cost of certain repairs held not to affect tax liability for the years in controversy.
3. Action of the Commissioner in refusing to allow the deduction of an alleged bad debt from gross income of the partnership of which the petitioners were members for the year 1921, approved.
11 B.T.A. 850">*850 The respondent has asserted deficiencies in income tax as to Frank T. B. Martin for the years 1919, 1920 and 1921, in the respective amounts of $523.96, $803.81 and $282.48, and for the same years as to Charles W. Martin in the respective amounts of $1,628.18, $925.22, and $927.52. The record does not disclose whether the total deficiencies determined by the respondent are in controversy. The petitioners allege two errors in the determination of the deficiencies: (1) That the respondent erroneously increased the income of the partnership of which they are members by adding thereto certain amounts which they contend1928 BTA LEXIS 3701">*3702 were repayments of loans, and (2) that a deduction from the gross income of the partnership on account of a debt ascertained to be worthless and charged off in 1921 was erroneously disallowed. At the hearing the petitioners set up as an alternative contention, in the event of an adverse decision on their first contention, that the partnership should be allowed to deduct from its gross income the cost of certain repairs on their property as an ordinary and necessary operating expense. By agreement of counsel the two proceedings were consolidated for hearing and decision.
FINDINGS OF FACT.
Each of the petitioners is a resident of the State of Nebraska and is in business at Omaha. Throughout the taxable years here involved each of the petitioners was the owner of a one-third interest in a partnership known as Martin Brothers & Co., hereinafter designated as the partnership, and in such years this partnership was the owner in fee of a certain six-story and basement building located in Omaha.
11 B.T.A. 850">*851 In the year 1914 the partnership leased the second, third and fourth floors of its building as above described to the Wellington Inn Co., for a period of ten years, on terms1928 BTA LEXIS 3701">*3703 and conditions not material here except as to one condition which was as follows:
* * * also said lessors have and do hereby give and grant unto said lessee, the option and privilege to lease and take over, from said lessors, the West one-half of the first floor and basement in said building (except such part thereof as is used for the heating and operating of said building), when the present lease or leases now covering same terminate, and in case the said lessee elects to exercise its option and to lease said West one-half of the first floor and basement, it shall give said lessors at least four (4) months' written notice of its intention so to do.
The Wellington Inn Co. having decided to exercise its option to take over the first floor and the basement of the building in question, on May 2, 1916, the partnership executed to it a supplementary lease covering such space, the terms and conditions of which, so far as they are pertinent to this proceeding, were as follows:
Said lessee desires to rent from said lessors, the West one-half of the first floor and basement in said Wellington Building, except such portion thereof, as is used for the heating plant and machine room for1928 BTA LEXIS 3701">*3704 said Wellington Building, as soon as said space can be remodeled into a suitable lobby, cafe, public toilets, barber shop, storage and dressing rooms, for WELLINGTON INN, and it is the intention of said lessors, to remodel the said West one-half of the first floor and basement of said Wellington Building, except such portion thereof as is used for the heating plant and machine room in said Wellington Building, for the use of said Wellington Inn, as aforesaid, in accordance with plans and specifications prepared therefor by Harry Lawrie, architect, as soon as possession of the aforesaid West one-half of the first floor and basement in said building can be secured.
Now, therefore, in consideration of the covenants, agreements, conditions of forfeitures and the payment of rent hereinafter set forth, the said lessors have demised, leased and let and by these presents do demise, lease and let unto the said lessee, the West one-half of the first floor and basement in said Wellington Building, hereinafter referred to as said leased premises, except such portion thereof, as is now used for the heating plant and machine room, as aforesaid, for the terms beginning when the present leases1928 BTA LEXIS 3701">*3705 now covering the same, terminate, and ending June 1st, 1924, and said lessors shall remodel said leased premises into a hotel lobby, cafe, public toilets, barber shop, storage and dressing rooms for said Wellington Inn, according to the plans and specifications of the architect aforesaid, subject to the approval of the Buildings Inspector in the City of Omaha, and the said lessee, and said lessors shall also construct a suitable canopy over the entrance of said Wellington Building, subject to the approval of the Building Inspector of the City of Omaha and said lessee.
TO HAVE AND TO HOLD the above described premises unto the said lessee, for the term aforesaid, to be used and occupied by said lessee, for the purposes aforesaid.
Said lessee in consideration of the leasing aforesaid, hereby agrees to pay to said lessors the following rentals for the use and occupancy of said leased 11 B.T.A. 850">*852 premises: THREE HUNDRED FIFTY (350) Dollars per month from and after the date the said leased premises are satisfactorily remodeled, decorated, screened and delivered to said lessee by said lessors, for use and occupancy as hereinbefore mentioned, until October 1st, 1921, and FOUR HUNDRED1928 BTA LEXIS 3701">*3706 (400) Dollars per month from October 1st, 1921, until the expiration of this lease, June 1st, 1924, and the said lessee in consideration of the remodeling of said leased premises by the said lessors, as aforesaid, further agrees to pay said lessors, as compansation therefor, an additional sum of ten per cent per annum on the actual cost of said remodeling, including the canopy aforesaid and such extra alternations or repairs as may be found necessary while said remodeling is being done; this annual compensation to be divided into twelve equal parts, and considered as additional rental and so paid with the monthly rental, as hereinbefore stipulated, and said lessee shall also pay to said lessors, during the continuance of this lease, a term water rental for the fixtures in the said leased premises, according to the rates established therefor, by the Omaha Water Board, but in the event said lessors install sub-meters in said building, then in that event said lessee shall pay meter rates (current in Omaha) for all water used in said leased premises. Said rentals shall be payable in advance on or before the 10th day of each calendar month at the office of Martin Bros. & Company, or whereover1928 BTA LEXIS 3701">*3707 in Omaha the said lessors shall elect.
Pursuant to the terms of the lease for additional space the partnership remodeled the first floor and a part of the basement of its building in the year 1916, at a total cost which the parties agree was $29,100. In each of the taxable years the lessees paid the partnership the amount of $2,910 (or 10 per cent of the cost of the alterations of the additional space covered by the supplemental lease. The partnership did not include this amount in its income in its income-tax returns for any of the years in controversy. Upon audit of such returns the Commissioner added the amount of $2,910 to the income of the partnership for each of the taxable years and determined the deficiencies of the partners in the amounts here in controversy.
At December 31, 1921, the partnership charged off its books an account receivable in the amount of $402.88, due it by a firm known as Abbott & Co., and deducted such amount from its gross income in its income-tax return as a debt ascertained to be worthless and charged off in such taxable year. Abbott & Co. discontinued its operations and business in 1920 and was acquired in some way not disclosed by the record1928 BTA LEXIS 3701">*3708 by a concern known as the Omaha Outdoor Advertising Co. Some time in December, 1921, the partnership made a demand on such advertising company for the amount due from Abbott & Co., and such company refused to pay. The partnership then threatened suit against the advertising company, but was unable to make any collection and charged the amount off as indicated herein. In January of 1922 the advertising company made a small payment on the account and afterwards over a period of several years paid the entire account. The payments so received subsequent 11 B.T.A. 850">*853 to the taxable years were included in the income of the partnership in the respective years in which received and income tax was paid thereon.
OPINION.
LANSDON: The main controversy here is whether the amount of $2,910 received by the partnership in each of the taxable years under the provisions of the lease as set forth in our findings of fact was income or installments on the repayment of a loan. The petitioners contend that, in effect, the remodeling of the building was done by the tenant with money loaned by the partnership. The respondent has determined that the cost of the improvements was borne by the partnership1928 BTA LEXIS 3701">*3709 and that the annual payments to it by the tenant were rentals and should be included in income for the respective years in which they were received. On this point the terms of the lease appear to be conclusive. We are of the opinion that the receipts in question were rentals and should be included in the income of the partnership for each of the years in question, as determined by the respondent.
The alternative contention of the petitioners is not tenable as a factor in this controversy. Our opinion is that the entire cost of remodeling was an additional capital investment in the building. Even if we could accept the petitioners' theory that a part of the cost of remodeling should be regarded as expenses incurred in repairing its property, the deficiency here in question would not be affected since the alleged expenses were incurred and paid prior to the taxable years.
The record discloses that the amount of $402.88 due the partnership was charged off by a proper entry to profit and loss at December 31, 1921. The debtor concern had then been out of business for more than a year. Its successor disclaimed liability and refused payment in December, 1921. The partnership1928 BTA LEXIS 3701">*3710 then threatened suit. The Omaha Outdoor Advertising Co. made a payment on this account in January, 1922, and prior to the hearing paid the entire debt. In these circumstances we are not convinced that the debt was a proper deduction from gross income for 1921, and the determination of the respondent on this issue is approved.
Judgment will be entered on 10 days' notice, under Rule 50.