*1074 These proceedings are for the redetermination of deficiencies in income tax for the years 1928, 1929, and 1930 in the amounts of $7,392.36, $5,449.58, and $2,242, respectively. Separate petitions were filed but the proceedings were consolidated for hearing.
The questions presented are:
(1) Whether, in computing the amortization of the cost of players' contracts for the years in question, the petitioner is entitled to take into consideration the cost of previous contracts prior to 1928.
(2) Whether, in computing the gain or loss on the sale of players' contracts in the years in question, the petitioner is entitled to offset against the selling price the unamortized cost of the players' contracts sold although said contracts were purchased in years prior to 1928.
The respondent, by way of affirmative defense, contends that the petitioner in equitably estopped to raise the contentions herein presented, on the ground that it had in prior years claimed as a deduction in its income tax returns the difference between the cost of players' contracts*1248 purchased in each current year and the amount received during that year from the sale of polayers' contracts, which deduction was allowed by the respondent.
*1075 FINDINGS OF FACT.
The petitioner, Pittsburgh Athletic Company, is a corporation, organized and existing under the laws of the State of New Jersey, having its domicile and place of business in the city of Pittsburgh, county of Allegheny, State of Pennsylvania, where it operates the Pittsburgh Baseball Club of the National League.
It was stipulated that Exhibit C attached to the petition in Docket No. 67422 is a correct statement of the cost, date of acquisition and disposition of players' contracts. The facts therein set forth are incorporated herein by reference.
For all years prior to 1928 the petitioner claimed as a deduction in its income tax returns the difference between the cost of players' contracts purchased in each current year and the amount received during that year from the sale of players' contracts, which deduction was allowed by the Bureau upon audit of said income tax returns.
In 1927 the petitioner deducted $138,716.66 which reporesented the difference between players' contracts purchased*1249 and players' contracts sold during that year.
The revenue agent who examined the petitioner's books and records in his investigation of the 1927 return stated in his report:
Mr. B. Dreyfus, President, states that all players contracts acquired are for a one year period only. Hence players' purchase item $138,716.66 as shown on the return appears to be a proper deduction.
The revenue agent in his report recommended that the $138,716.66 be allowed as a proper deduction in 1927, and respondent, accepting and relying on the revenue agent's report, forwarded to the petitioner Form 866 with letter dated October 15, 1928, and B. Dreyfus, as president of the corporation, signed the aforesaid agreement on October 17, 1928, which was approved by the Commissioner on November 12, 1928, thereby closing the year 1927 under section 606 of the Revenue Act of 1928.
The contract of employment used by the contracting parties, in so far as it affects the issues herein, contains the following provisions:
EMPLOYMENT. 1. The Club hereby employs the Player to render skilled service as a baseball player in connection with all games of the Club during the year 19 including the Club's training*1250 season, the Club's exhibition games, the Club's playing season, and the World Series (or any other official series in which the Club may participate and in any receipts of which the player may be entitled to share); and the player covenants that he will perform with diligence and fidelity the service stated and such duties as may be required of him in such employment.
SALARY. 2. For the service aforesaid the Club will pay the Player an aggregate salary of $ as follows:
*1076 In semi-monthly installments after the commencement of the playing season covered by this contract, unless the Player is "abroad" with the Club for the purpose of playing games, in which event the amount then due shall be paid on the first week-day after the return "home" of the Club, the terms "home" and "abroad" meaning, respectively, at and away from the city in which the Club has its baseball field.
If a monthly salary is stipulated above, it shall begin with the commencement of the Club's playing season (or such subsequent date as the Player's services may commence) and end with the termination of the Club's scheduled playing season, and shall be payable in semi-monthly installments as above*1251 provided.
If the Player is in the service of the Club for part of the playing season only, he shall receive such proportion of the salary above mentioned, as the number of days of his actual employment bears to the number of days in the Club's playing season.
* * *
ASSIGNMENT. 5. (a) In case of assignment of this contract to another Club, the Player shall promptly report to the assignee club within 72 hours from the date he receives written notice from the Club of such assignment, if not more than 1600 miles by most-direct available railroad route plus an additional 24 hours for each additional 800 miles; accrued salary shall be payable when he so reports; and each successivde assignee shall become liable to the Player for his salary during his term of service with such assignee, and the Club shall not be liable therefor. If the Player fails to report as above specified, he shall not be entitled to salary after the date he received written notice of assignment. If the assignee is a member either of the National or American League, the salary shall be as above (paragraph 2) specified. If the assignee is any other Club the Player's salary shall be the same as that usually*1252 paid for by said Club to other players of like ability.
TERMINATION. (b) This contract may be terminated at any time by the Club or by any assignee upon ten days' written notice to the Player.
RENEWAL 8. (a) On or before February 15th (or if Sunday, then the succeeding business day) of the year next following the last season covered by this contract by written notice to the Player at his address following his signature hereto (or if none be given, then at his last address of record with the Club), the Club or any assignee hereof may renew this contract for the term of that year except that the salary shall be such as the parties may then agree upon, or in default of agreement the Player will accept such salary rate as the Club may fix, or else will not play baseball otherwise than for the Club or for an assignee hereof.
(b) The Club's right of reservation of the Player, and of renewal of this contract as aforesaid, and the promise of the Player not to play otherwise than with the Club or an assignee hereof, have been taken into consideration in determining the salary specified herein and the undertaking by the Club to pay said salary is the consideration for both said reservation, *1253 renewal option and promise, and the Player's service.
For the years 1928 and 1929 the petitioner claimed as deductions the entire cost of contracts purchased in those years respectively. The respondent, upon audit of the returns, disallowed such deductions. For 1928 the respondent allowed the petitioner a deduction cf $16,574.99 for amortization on the contracts at the rate of 33 1/3 per cent of the cost of contracts purchased during the year 1928 *1077 only. For 1929 he allowed petitioner a deduction of $49,608.35 for amortization of contracts at the same rate of the cost of contracts purchased during the years 1928 and 1929 only. The petitioner did not assign as error the finding of the respondent that the contracts had an average life of three years.
For 1930, the petitioner, in its returns, claimed a deduction for amortization of unexhausted contracts then owned by it, considering three years to be the average life of the contracts, and included in its return profit or loss on unexhausted contracts sold or disposed of in 1930. The respondent upon audit disallowed all amortization claimed on contracts purchased prior to 1928, and petitioner was allowed amortization*1254 at the rate of 33 1/3 per cent of the cost of contracts purchased during 1928 or subsequent years only.
In 1928 the petitioner received from the sale of players' contracts $73,500, and the respondent included the entire amount thereof in income. In 1929 petitioner received from sale of contracts $45,500, all of which, with the exception of $5,000, was included by respoondent in income for that year. In 1930 petitioner's receipts from contract sales amounted to $72,500, and the respondent included $26,666.67 thereof as profit in 1930 income, allowing no cost for contracts purchased prior to 1928.
OPINION.
TRAMMELL: The Board has heretofore had occasion to consider contracts of the nature of those in question in the cases of , and . The provisions of the contracts considered by the Board in those cases are substantially the same as the provisions of the contracts involved in these proceedings. In the Dallas case, supra, the Board said:
It is well settled that if these contracts represent capital assets and were exhausted by the passage of time or otherwise, *1255 the petitioner is entitled to spread the amount paid for each contract over the determinable period of its life, and to deduct an aliquot part thereof in each year.
We held that the renewal clause in the contracts under the conditions presented gave the contract a life of more than one year. In the light of the decision in the case of , we think that we were in error, and those decisions will not be followed.
In the case of 353 , we said with reference to the Bonwit Teller case:
Petitioner's principal reliance is on the case of , in which it was held that where the original term of a lease had 19 years to run from March 1, 1913, with an option to renew for *1078 21 years at a renewal to be based on an appraisal of the property, the lessee taxpayer was entitled to exhaust the March 1, 1913, value of the lease over the remaining life of the original term of the lease. That decision is premised upon the statutory provision that exhaustion deductions are allowable*1256 in respect of "property used in the trade or business," and the fact that in that case "the property being used in the business (the leasehold) will be exhausted in nineteen years." In so holding the court did not disregard the existence of the option to renew, but proceeded on the theory that the option was not property then being used in the business, and that in the event of its exercise new property would be created which might then be the subject of exhaustion. Counsel for respondent attempts to distinguish the present case from the Bonwit Teller decision on the ground that the court had before it a question of exhausting only the March 1, 1913, value of the unexpired term of the original lease, whereas in this case the investment by the lessee in the building and the length of its useful life makes it evident that the lessee intended to renew, and consequently exhaustion should be spread over the period that the lessee is entitled to enjoy the use of the property. We think that this is not a valid distinction. A reading of the court's opinion discloses that the renewal privilege was taken into consideration and it was held that the result would be the same whether or not*1257 the option entered into the value of the lease. The court said:
Such an option might readily enhance the value of the lease, but it could hardly be supposed to change the period during which the lease would become exhausted.
In our opinion this case is governed by the same principle as above stated. The contracts here involved were only for one year, with the option of renewal. If renewed, there is another contract. The one year contract is the "property used in the trade or business." The cost of one-year contracts should be allowed as a deduction in the year acquired. This is the way in which the taxpayer handled the contracts on its returns.
In view of our decision it is not necessary to decide the questions presented as to the proper method of taking the amortization deduction with respect to contracts for prior years, or the basis of determining gain or loss with respect to sales thereof.
Reviewed by the Board.
Judgment will be entered under Rule 50.