*218 Decision will be entered for the respondent.
Prior to 1938 petitioner claimed and was allowed depreciation on certain properties on the basis of assessed valuations, which were less than cost. The properties were sold during the taxable years. Held, that respondent properly adjusted the original costs for depreciation allowed or allowable on the basis of original cost, even though the maximum amount of depreciation was not claimed or allowed for all years prior to sale. Held, further, that a deduction for depreciation in a taxable year may not exceed the adjusted basis of the property at the beginning of the year.
*100 This proceeding involves deficiencies in income taxes for the years 1945 and 1946 in the amounts of $ 450.41 and $ 5,388.96, respectively. The issues are: (1) Whether petitioner is entitled to additional depreciation of $ 64.39 in 1945 and 1946 on his No. 8 Beacon Street property; (2) whether the respondent erred in his adjustment of basis for depreciation in computing capital gain or loss *219 on the sale of parcels of property in 1945 and 1946; and (3) whether petitioner is entitled to additional depreciation of $ 467.25 in 1946 on his 2202 Park Avenue property. Petitioner filed his income tax returns for the taxable years with the collector of internal revenue for the southern district of Ohio.
FINDINGS OF FACT.
The stipulated facts are found as agreed to by the parties.
On July 15, 1932, petitioner purchased a one-half interest in a parcel of real property, improved by a frame building, located at No. 8 Beacon Street, Cincinnati, Ohio. In each of the years 1938 to 1945, inclusive, petitioner claimed $ 64.39 for depreciation on the property. On June 22, 1945, petitioner purchased the other one-half interest in the property. In 1946 petitioner claimed the amount of $ 128.78 for depreciation on the property. In his determination of the deficiencies, respondent allowed as a deduction for depreciation on the property the amounts of $ 96.58 in 1945 and $ 128.78 in 1946 on the basis of one-half ownership by petitioner before June 22, 1945, and full ownership thereafter.
During the years 1920 to 1937, inclusive, petitioner acquired, and at all times thereafter held as rental*220 property, various parcels of real estate, one of which was sold in 1945 and twelve of which, including 2202 Park Avenue, were sold in 1946.
Depreciation for years prior to 1938 was claimed by the petitioner on the basis of a life of 20 years for frame buildings and 33 1/2 years for brick buildings and the assessed value of the buildings for real property tax as cost, the assessed valuation being in each instance less than cost to the petitioner. For the years 1931 to 1934, inclusive, he used *101 the declining balance method and thereafter through 1938 the straight line method of computing depreciation.
In 1939 an agent of the Commissioner recomputed depreciation for years prior to 1938 on the straight line method, and on the basis of cost and at the rates used by petitioner. He determined that the unexhausted cost, as computed by him, should be recovered over the remaining life of the property. From 1938 to 1945, inclusive, petitioner claimed depreciation on the basis of cost and at the rate of 5 per cent per annum for frame buildings and 3 per cent for brick buildings.
When reporting gain or loss on the properties in his returns for the taxable years, petitioner computed*221 the adjusted basis for each of the properties sold by deducting from cost an amount for the aggregate amount which he had claimed as deductions for depreciation. In his determination of the deficiencies respondent adjusted petitioner's basis for each property by deducting from cost, whether allowed or allowable, depreciation computed by the straight line method on the basis of cost and at the rates at all times used by petitioner. The action of respondent reduced the adjusted basis of the property sold in 1945, as reported by petitioner, by $ 18.13, and the property sold in 1946 by $ 22,207.81, and increased the capital gain reported by petitioner by a corresponding amount.
On September 10, 1925, petitioner acquired a parcel of real estate at 2202 Park Avenue, Norwood, Ohio. For each of the years 1926 to 1937, inclusive, he deducted in his return and was allowed by the respondent depreciation on the improvements in the amount of $ 433.50, a total of $ 5,202. Exhaustion was computed at the rate of 5 per cent per annum on a basis of $ 8,670, which amount was the valuation placed on the property by the Ohio Tax Commission for local real property tax. In 1939 an agent of the Commissioner*222 adjusted the basis for depreciation on the property by substituting cost of $ 22,429.50 for the assessed valuation, deducted from the cost basis the amount of $ 13,831.59 for depreciation allowed or allowable for years prior to 1938, and provided for exhaustion of the remainder of the cost, amount $ 8,597.81, over the remaining life of 7 2/3 years. Depreciation in the amount of $ 121.48 was claimed by petitioner in each of the years 1938 to 1944, inclusive, 1 and $ 1,214.80 in 1945. In his determination of the deficiency for 1945 respondent allowed $ 747.55 for depreciation on the property on the ground that that amount constituted the adjusted cost basis for recovery as exhaustion in that year.
Petitioner reported no tax liability and paid no income tax for the years 1921, 1925, 1927, and 1929 or 1930 to 1937, inclusive, and in 1938 the tax paid was subsequently refunded.
*102 In 1928 the Internal Revenue*223 Agent in Charge, Cincinnati, Ohio, informed petitioner by letter, Form 850-C, revised October 1926, that a recommendation was being made that his return for 1926 "be accepted as filed." In 1935 and 1938 the same agent informed him by letter on Form 850-C, revised April 1929, that he was recommending to the Commissioner that his returns for 1935 and 1937 "be accepted as correct." In 1928 the Commissioner informed petitioner by letter, Form 897-B (1926), that his return for 1926 had been examined and, as changed by the collector for his district, had been accepted as correct. Each of the letters, except the one written in 1928, contained a statement to the effect that if information received in the future would materially change the amount reported, existing laws required that petitioner's tax liability be redetermined.
OPINION.
The only question under the issue relating to depreciation on the property located at No. 8 Beacon Street is whether respondent allowed petitioner a deduction based upon full ownership of the property after June 22, 1945. The proof here is that the respondent in computing petitioner's rental income on the property increased the deduction of $ 64.39 taken by*224 petitioner in 1945, based upon one-half ownership, to $ 96.58 on account of full ownership of the property after June 22, and allowed the full amount of $ 128.78 in 1946, based upon sole ownership during the entire year. Petitioner not having acquired the interest of the co-owner until June 22 was not entitled to more than one-half of the total allowable depreciation for the property during the first 6 months of the year. For the remainder of 1945, and in 1946, respondent allowed petitioner all of the depreciation which he claims to be entitled to as a deduction. On this issue the respondent is sustained.
The difference between the parties on the second issue is the amount by which the original basis of the property sold should be adjusted for depreciation prior to sale. There is no controversy concerning the time of acquisition, the original cost, the useful life, the selling price of the properties, or the adjustments made for 1938 and subsequent years. The depreciation claimed by petitioner and allowed by the respondent for years prior to 1938 was based upon valuations for local tax purposes and the amount for each asset was less than cost to petitioner. He makes no contention*225 that the statutes in force prior to 1938 did not authorize him to use his original cost as a basis for deductions. The crux of his argument is that respondent was without authority to increase the amounts claimed and allowed for depreciation prior to 1938. Petitioner's method results in an adjusted basis *103 for all of the property of $ 22,225.94 less than the amount determined by respondent.
The purpose of allowances for depreciation is to permit a taxpayer to recover his capital outlay, less salvage value, over the useful life of the property, the theory being that a gradual sale is being made while the property is being exhausted. See United States v. Ludey, 274 U.S. 295">274 U.S. 295, in which the court held that upon the sale of property in 1917 the basis should be reduced by allowable exhaustion without an express statutory requirement for the adjustment. Deductions from gross income are subject to the will of Congress, and amounts thereof allowable by statute must be taken each taxable year, the unit of taxation, and can not be deferred to a future year. Virginian Hotel Corp. v. Helvering, 319 U.S. 523">319 U.S. 523.
The *226 amount petitioner is entitled to recover as basis on the sale of the property is controlled by the statute applicable to the taxable years, pertinent provisions of which are set forth in the margin. 2Elizabeth P. Patterson, 33 B. T. A. 57.
The*227 question raised by the petitioner is not a new one. In Beckridge Corporation, 45 B. T. A. 131, the taxpayer acquired certain real estate in 1931 but did not claim any depreciation thereon prior to 1937, when it sold the property for an amount less than the original cost. It had an operating loss each year before 1937. The Commissioner computed capital gain on the sale by reducing unadjusted cost by the amount of depreciation allowable on the property prior to sale. We held, after considering, among others, the case of United States v. Ludey, supra, that the Commissioner committed no error in adjusting the taxpayer's basis for depreciation prior to sale even though none was claimed and an operating loss was sustained in each of those years. On appeal the decision was affirmed. 129 F.2d 318">129 F. 2d 318. Like conclusions were reached in Queensboro Corporation, 46 B. T. A. 1216, and Herder v. Helvering, 106 F.2d 153">106 F.2d 153. In the former case we said:
We hold that, since the useful life was 35 years, depreciation was allowable to a greater *228 extent than that deducted by the petitioner and the basis for figuring the loss upon the foreclosure sale will be reduced by the amount of depreciation allowable.
*104 In the latter case the court said:
Failing to take depreciation when it occurs in the prior taxable year does not prevent its inclusion in the determination of the adjusted cost basis of the property, * * *.
citing the Ludey case, supra.
Petitioner asserts on brief, without discussion of the point, that estoppel prevents adjustment of the amounts claimed by him. The question of estoppel was not pleaded and the issue is not therefore before us. Helvering v. Salvage, 297 U.S. 106">297 U.S. 106. In any event, "* * * no estoppel can arise against the Commissioner from his acceptance of the return." Mt. Vernon Trust Co. v. Commissioner, 75 F.2d 938">75 F. 2d 938.
We find no error in respondent's adjustment of the bases of the property for depreciation, allowed or allowable, in prior years.
In his return for 1945, petitioner claimed depreciation of $ 1,214.80 on the 2202 Park Avenue property on the basis of a full year of life. The property was acquired on September*229 10, 1925, and no contention is made that the property had a life longer than 20 years, the period used by petitioner and respondent at all times without question for depreciation purposes. Of the amount of depreciation claimed in 1945, respondent allowed $ 747.55 which was the adjusted cost of the property at the beginning of the year.
Petitioner contends that he is entitled to a full year of depreciation on the grounds that his basis was not used up in that year. The original cost was not exhausted by the deductions claimed prior to the year 1945 because of petitioner's failure to claim the maximum amount allowable by statute.
The basis for depreciation is the same as that for determining gain on the sale of property. Section 114 (a). The same section of the Revenue Act of 1938 contained a like provision. To arrive at the "adjusted basis" under the statute it is necessary "* * * that depreciation theretofore allowed or allowable under the income tax laws must be deducted from the base, " Helvering v. Virginian Hotel Corp., 132 F. 2d 909. Such procedure does not involve retroactive application of the statute. The provision merely provides a *230 method for determining whether the taxpayer has any of his original basis for recovery in the taxable year by way of depreciation. Of his original cost, petitioner had no more than $ 747.55 for recovery as a deduction in 1945. He was not, under the statute, entitled to a greater amount. Virginian Hotel Corp. v. Helvering, supra;Kennedy Laundry Co. v. Commissioner, 133 F. 2d 660; Commissioner v. Mutual Fertilizer Co., 159 F. 2d 470; and Commissioner v. Cleveland Adolph Mayer Realty Corp., 160 F.2d 1012">160 F. 2d 1012.
Decision will be entered for the respondent.
Footnotes
1. Petitioner admits that his failure to claim the maximum amount allowable was due to a mistake made by him.↩
2. SEC. 113. ADJUSTED BASIS FOR DETERMINING GAIN OR LOSS.
(a) Basis (Unadjusted) of Property. -- The basis of property shall be the cost of such property; except that --
* * * *
(b) Adjusted Basis. -- The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis determined under subsection (a), adjusted as hereinafter provided.
(1) General rule. -- Proper adjustment in respect of the property shall in all cases be made --
* * * *
(B) in respect of any period since February 28, 1913, for exhaustion, wear and tear, obsolescence, amortization, and depletion, to the extent allowed (but not less than the amount allowable) under this chapter or prior income tax laws. * * *↩