*1117 1. Attorneys' fees paid for services in securing a lease on real estate must be capitalized and amortized over the term of the lease.
2. Certain payments on account of attorneys' fees and traveling expenses allowed as deductions in the taxable year.
3. In the circumstances herein, held that a part of the cost of a certain drainage ditch was a loss sustained by the petitioner in the taxable year.
*158 The respondent has asserted a deficiency in income tax for the year 1927 in the amount of $3,102.02. For his causes of action the petitioner alleges that respondent has erroneously disallowed as deductions from his income in the taxable year certain amounts representing attorneys' fees, traveling expenses and a loss resulting from excessive cost of a drainage ditch.
FINDINGS OF FACT.
The petitioner is an individual, residing in St. Paul, Minnesota.
In the year 1927, petitioner acquired 20-year leases from the Canadian Government and the Providence of Manitoba on three adjacent tracts of peat bog yards, covering a total of 11,631 acres. *1118 Each of the leases provided for drainage works to be approved by the lessor and paid for by the lessee.
Concurrently with the negotiations for the leases secured, the petitioner was endeavoring to secure leases on about 500,000 acres of similar land south, east and north of the tracts acquired and adjacent thereto. In 1927 he had assurance that such additional leases would be approved and tentative agreements were entered into covering the additional acreage, and the Legislature of Manitoba and the Dominion Parliament passed acts authorizing the proposed contracts. Late in the year 1927, petitioner learned that leases on such additional acreage would not be approved, and early in 1928 the Canadian Parliament enacted a law limiting the acreage of public domain that might be leased to one person to not more than four townships.
During the year 1927 and at a time when he was assured that his leases of additional acreage would be approved, petitioner constructed about eleven miles of drainage ditches at a cost of $14,709.84. *159 The ditches so constructed averaged 19 feet in width and 5 feet in depth and were much larger than necessary to drain the land already under*1119 lease to petitioner. The excess ditch capacity was constructed for the purpose of draining the additional acreage for which the petitioner was negotiating. The cost of a ditch adequate to drain the lands actually under lease would not have been in excess of $4,000.
On May 4, 1927, petitioner paid attorneys' fees in the amount of $1,686.90, for services in securing the leases on the 11,631 acres. On June 22 and December 22, 1927, he paid the same attorneys the amounts of $1,000 and $1,000 as retainers for services in connection with his efforts to secure leases on the additional acreage which he failed to secure.
During the summer of 1927 petitioner made trips to Winnipeg and Toronto in connection with his efforts to lease acreage in addition to the 11,631 acres which he had already obtained. On such trips he expended the amounts of $300 and $350 for traveling expenses, entertaining members of the Manitoba Legislature, and other matters directly related to the purpose of his trips.
OPINION.
LANSDON: The evidence is clear that the payment of attorneys' fees in the amount of $1,686.90 on May 4, 1927, was an expense incurred in securing three leases on real estate. This*1120 was a capital expenditure, amortizable ratably over the life of the leases. ; ; affd., ; .
The amounts of $2,000 and $650 paid by the petitioner as attorneys' fees and traveling expenses in 1927 in connection with his unsuccessful efforts to secure leases on additional acreage adjacent to the lands already acquired were ordinary and necessary business expenses, and are deductible as such from petitioner's income for the taxable year. Immediately following his acquisition of the tract of 11,631 acres covered by the first three leases and at a time when he was assured that he would secure a much larger adjacent tract on the same condition, the petitioner constructed a drainage ditch with capacity sufficient to serve the tracts already under lease and a considerable portion of the additional acreage which he then expected to secure. The ditch was completed at a cost of $14,709.84, all of which was paid in the taxable year. The evidence shows that a ditch large enough to drain the original tract could have*1121 been constructed at a cost not in excess of $4,000. The petitioner contends that the *160 difference between the amount actually expended and the cost of a ditch adequate to drain the lands already under lease was a loss in the taxable year. The evidence is clear that the excess ditch capacity was useless and of no value to the petitioner and that its cost was incurred in the confident expectation that the additional acreage would be secured. Changes in the policies and laws of the proposed lessors over which the petitioner had no control deprived the greater part of the drainage ditch of any value. In these circumstances we think the petitioner sustained a loss in 1927 in the amount of $10,709.84. This conclusion seems to be well supported by Commissioner's Regulations 74, article 173, 1 as well as by the conclusion in ; ; ; and .
*1122 Decision will be entered under Rule 50.
Footnotes
1. ART. 173. Loss of useful value.↩ - When, through some change in business conditions, the usefulness in the business of some or all of the capital assets is suddenly terminated, so that the taxpayer discontinues the business or discards such assets permanently from use in such business, he may claim as a loss for the year in which he takes such action the difference between the basis (adjusted as provided in section 111 and article 561) and the salvage value of the property. This exception to the rule requiring a sale or other disposition of property in order to establish a loss requires proof of some unforeseen cause by reason of which the property has been prematurely discarded, as, for example, where an increase in the cost or change in the manufacture of any product makes it necessary to abandon such manufacture, to which special machinery is exclusively devoted, or where new legislation directly or indirectly makes the continued profitable use of the property impossible. This exception does not extend to a case where the useful life of property terminates solely as a result of those gradual processes for which depreciation allowances are authorized. It does not apply to inventories or to other than capital assets. The exception applies to buildings only when they are permanently abandoned or permanently devoted to a radically different use, and to machinery only when its use as such is permanently abandoned. Any loss to be deductible under this exception must be fully explained in the return of income.