*1090 Where a 99-year lease is made with the purpose of having the lessee erect a new building on a lot occupied by an old building, the unextinguished cost of the old building is not deductible by the lessor as a loss in the year of its demolition, but should be exhausted over the term of the lease. (Anahma Realty Corp., 42 Fed.(2d) 128; Mary C. Young,20 B.T.A. 692">20 B.T.A. 692.)
*293 The respondent determined a deficiency in income tax for the year 1927 in the amount of $1,776.38, all of which is in dispute. The petitioner assigns as error the disallowance of the deduction of $15,504.29, representing the loss sustained by reason of the demolition in that year of a building owned by the petitioner, and the refusal by the respondent to allow, as an alternative to the deduction of the loss, a deduction on account of depreciation of the building in the sum of $1,725.
At the hearing the respondent moved to increase the deficiency, based on the erroneous allowance of one ninety-ninth of the undepreciated*1091 *294 value of the building as a deduction for the year in issue, so as to conform to the proof.
The case is submitted on the pleadings and the following stipulation, which we adopt as our findings of fact.
FINDINGS OF FACT.
1. That the petitioner is an individual, and a citizen and resident of the State of Washington, residing at Seattle, King County, therein.
2. That during the year 1924, and for a considerable time prior thereto and continuously thereafter up to and throughout the year 1927, the petitioner was the owner of Lot 12, Block 22, A. A. Denny's Addition to the City of Seattle, King County, Washington, which said property was improved with a three story and basement brick building. Said building was erected prior to the year 1913, and on March 1, 1913, was of the fair market value of $34,000, and on said date had a reasonable expectancy of usefulness of twenty years.
3. That petitioner charged and was allowed as a deduction in determination of income, depreciation sustained up to October 1st, 1924, at the rate of five per cent per annum, amounting to a total of $18,837.50, leaving a residual value for the building on October 1, 1924, after deduction*1092 for depreciation of $15,662.50.
4. That under date of October 6, 1924, petitioner entered into a lease covering these premises with Third Avenue Investment and Building Company, a corporation, as lessee, whereby petitioner leased the premises to the lessee for a period of 99 years from and after the first day of October, 1924; that said lease, among other things, provides as follows:
Paragraph 8.
The Lessee not later than January 1st, 1928, shall commence the construction of a building on the leased premises and shall have such buiiding completed and ready for occupancy as speedily as possible thereafter within reason. Such building shall be of "Class A" fire proof construction and shall consist of full basement and not less than four full complete stories above the street level, and when completed shall have a cost and fair value of not less than One Hundred Thousand ($100,000.00) Dollars, and upon completion shall be free of mechanics', labor, or other statutory liens, or the possibility thereof (except only mortgage liens upon the leasehold estate), which building shall be substantially in accordance with the plans and specifications to be approved by the Lessor in*1093 writing, prior to the demolition of the present building on said premises; such building shall be entirely on the leased premises. Before demolishing, or to any degree removing or wrecking the building at present on the demised premises, or before demolishing, removing or in anywise wrecking or razing any building which may hereafter be erected upon said premises, the Lessee shall execute and deliver to the Lessor a surety bond in form and amount satisfactory to the Lessor, with a corporation as surety which is authorized to execute and deliver such surety bonds in the State of Washington, and is satisfactory to the Lessor, which bond shall in the first instance be *295 conditioned to secure the construction and completion of the building provided for in this paragraph of this lease (and in subsequent instances for buildings thereafter to be erected upon said premises), free of all liens and claims of contractors, subcontractors, mechanics, laborers, material men, or other statutory lien claimants, (such construction to be effected by the Lessee or on the Lessee's default by the surety), and also to secure the payment of all amounts payable under the terms of this lease until*1094 such building shall have been so completed, paid for and insured, in accordance with the terms of this lease, and shall provide that on default of such completion and payments such part of the amount of such bond as shall be required to complete such construction and make such payments shall be paid to the Lessor as liquidated damages for non-performance of this covenant, if the Lessor elects for default in such construction or other default arising under the terms hereof, to forfeit this lease and resume possession of the premises, and said bond or bonds shall contain such additional guarantees as shall be customary at the time or times of furnishing the same. Nothing in this paragraph or in any other part of this lease shall be construed to modify Paragraph 37 hereof.
Paragraph 10.
Any and all building or improvement erected upon said demised premises, with their appurtenances, shall at once become a part of the freehold, free of all claims thereon or rights or interests therein on the part of the Lessee, except as in this lease provided.
Paragraph 11.
That during the term of this lease and/or until the present buildings located upon the property herein demised*1095 are removed or destroyed according to the terms of this lease, the Lessee shall at its own cost and expense keep said improvements insured against loss or damage by fire in a sum not less than Thirty-six Thousand ($36,000.00) Dollars in a standard insurance company or companies subject to the reasonable approval of the Lessor, and in the name of the Lessor, and the Insurance policies covering said building or buildings shall be delivered to the said Lessor, and shall provide that loss, if any, shall be payable to said Lessor; and in the event of loss or damage and the collection of the proceeds of said insurance by the Lessor, the Lessor shall hold and retain the same until the Lessee shall give the Lessor a bond executed by itself and a surety company in a sum equal to the amount of said insurance money so received, conditioned that the Lessee on receipt of said money will within six months apply the same, in the event of total destruction, to the cost of the construction of a new building to be constructed upon said premises in accordance with the terms and specifications of this lease as hereinafter set forth, or, in the event of partial destruction or damage, to the repair or restoration*1096 of such damage; but if the Lessee shall not furnish such bond, then the Lessor shall retain such insurance money until said building shall have been constructed or repaired on said premises as herein specified, and until satisfactory proof shall be furnished to the Lessor that all material and labor used thereon have been fully paid for, and thereupon said insurance money shall be paid over to the said Lessee or to its assigns; and if this lease shall be for any cause lawfully terminated or forfeited while such insurance money shall be in the hands of the Lessor, then such insurance money shall be and remain the absolute property of the Lessor.
Paragraph 34.
In the event of the termination of the demised term either by forfeiture or by lapse of time or otherwise, the Lessee shall at once surrender and deliver *296 up the said demised premises, together with all the improvements thereon, to the Lessor, and all improvements then standing on the demised premises shall belong to the Lessor and no compensation shall be allowed or paid therefor, and the Lessor shall have the right to re-enter said premises and every part thereof and remove all persons therefrom, using all*1097 necessary force so to do, and to re-possess the premises and the whole thereof and the improvements thereon as fully as if this lease had never been made.
5. That the lessee named in said lease entered into possession of said premises under date of October 1, 1924, and that said lessee, or its assign, has at all times since remained in possession thereof under and pursuant to the terms of said lease.
6. That pursuant to the provisions of Paragraph 8 of said lease, the lessee proceeded to demolish the above described building, and that the demolition of such building occurred and was completed in the year 1927, and that no salvage value whatsoever was realized by petitioner therefrom.
7. That no deduction has been claimed by petitioner on account of depreciation of said building for the period from October 1, 1924, to December 31, 1926, and that such depreciation, if deductible, would be at the rate of five per cent per annum upon the sum of $34,500.00, representing the March 1st, 1913, value of said building.
8. That under date of November 17, 1925, the respondent addressed a letter to the petitioner, a copy of which is hereto attached, and marked "Exhibit A."
9. *1098 In making her return for the year 1927, petitioner claimed as a deduction the sum of $15,662.50, which was the depreciated and residual value of said building as of October 1, 1924.
10. That in arriving at his determination of deficiency in this proceeding, the respondent has made no allowance whatsoever for loss sustained on account of the demolition of the building, or for its depreciation for 1927, save and except an allowance of one ninety-ninth of its residual value as of the date of said lease, to-wit: October 1, 1924, being one ninety-ninth of the sum of $15,662.50, amounting to $158.21.
11. That a copy of the report of the deputy collector of internal revenue at Tacoma, Washington, referred to in the notice of deficiency herein, which is attached to the petition herein as "Exhibit A" is hereto attached, marked "Exhibit B," and by this reference made a part of this stipulation.
OPINION.
SEAWELL: The record shows that the petitioner, during the year 1924 and for a considerable time prior thereto, and continuously thereafter up to and throughout the year 1927, was the owner of a certain lot in the City of Seattle, Washington, which property was improved *297 *1099 with a three-story and basement brick building. It is further shown that the building was erected prior to 1913 and on March 1, 1913, had a fair market value of $34,500 and on that date had a reasonable expectancy of usefulness of twenty years. This building was demolished during 1927 and no salvage value was realized therefrom.
The petitioner charged and was allowed as a deduction, in determining her taxable income, depreciation sustained up to October 1, 1924, at the rate of 5 per cent per annum, amounting to a total of $18,837.50, leaving a residual value for the building on October 1, 1924, of $15,662.50.
The issue for our determination is whether the petitioner in computing her 1927 taxable income is entitled to deduct the residual value of the building, or, if not, if she is entitled to deduct the 5 per cent depreciation for that year. We will consider first petitioner's claim for deduction of the residual cost or value of the building.
The record shows that the petitioner, under date of October 6, 1924, leased the lot in question to a corporation (Third Avenue Investment and Building Company) for a period of 99 years from October 1, 1924, the terms of the lease requiring*1100 that the lessee not later than January 1, 1928, should commence the construction of a fireproof four-story building, with a full basement thereunder; that said building should be completed and ready for occupancy as speedily as possible thereafter within reason, and should cost and have a fair value when completed of not less than $100,000 and be entirely free from mechanics', labor or other statutory liens. Numerous provisions - as appear from our findings of fact - were embodied in the lease, indicating advantages that were to accrue and be protected and preserved to the petitioner. The terms of the lease in full are not disclosed. It is stated in paragraph 8 of the lease that nothing therein shall be construed to modify paragraph 37 thereof, which paragraph is not embodied in the stipulation of facts, nor disclosed by the record. The record shows, however, that the $100,000 building provided for in the lease must be in substantial accordance with the plans and specifications approved by the petitioner and must be entirely on the petitioner's lot, and that before demolishing or to any degree removing or wrecking the then existing building on the premises, the lessee would have*1101 to execute and deliver to the petitioner a surety bond, with numerous provisions, satisfactory to the petitioner and fully protecting her rights and interests.
Paragraph 10 of the lease provided: "Any and all building or improvements erected upon said demised premises, with their appurtenances, shall at once become a part of the freehold, free of all claims thereon or rights or interests therein on the part of the lessee, *298 except as in this lease provided." Counsel for respondent, in support of his contention that the petitioner in computing her 1927 taxable income may not deduct the unextinguished or residual value of the building, cites and relies on the principle upon which our decision in Anahma Realty Corp.,16 B.T.A. 749">16 B.T.A. 749 (affirmed in 42 Fed.(2d) 128; certiorari denied, 282 U.S. 854">282 U.S. 854), was based. For the petitioner it is insisted that our decision in the Anahma Realty Corp. case supra, was predicated simply on our previous decision in Charles N. Manning,7 B.T.A. 286">7 B.T.A. 286, in which case the petitioner herein asserts there were several features not established by the record in the instant case. In our*1102 opinion, however, the differences between the Manning case, supra, and the instant case are not of such a character as to make inapplicable to the instant case the principle applied in our decisions in the other two cases cited.
In the concluding portion of the opinion in Anahma Realty Corp., supra, (42 Fed.(2d) 128), the court said:
* * * There was necessarily contained in the lease permission on the part of the appellant to permit the lessee to destroy the old buildings. The acquisition of something from which income will be derived in the future has a value in money's worth in the same sense as something which will produce income in praesenti; there was a compensating value for the loss of the buildings which must be recognized as having money's worth. There was a substitution of assets rather than a loss sustained in the destruction of the buildings.
In the instant case, the terms of the 99-year lease as set forth indicate that the then existing building on the premises leased would be demolished, provisions of the lease requiring that before demolishing the building a surety bond, satisfactory to the petitioner, for the construction and completion*1103 of the specified new building, would have to be executed and delivered. The record fails to show at what time in 1927 the building on petitioner's lot was demolished.
We are of the opinion, and so hold, that the respondent committed no error in refusing to allow, as a deduction in computing petitioner's 1927 taxable income, the depreciated or unextinguished value of the building as of October 1, 1924, in the amount of $15,662.50. Such determination is in accord with our decisions in Anahma Realty Corp., supra; and Mary C. Young,20 B.T.A. 692">20 B.T.A. 692 (affd., 59 Fed.(2d) 691), and is controlled thereby. , it is insisted in behalf of the petitioner that if she is not entitled to a deduction of the entire amount of the unextinguished or residual value of the building as of October 1, 1924, nor the residual value depreciated to January 1, 1927, she is in any event entitled to deduct annual depreciation at the rate of 5 per cent in the amount of $1,725.
The record shows no depreciation was claimed by the petitioner from October 1, 1924, to December 31, 1926, and that the respondent *299 allowed her for the year 1927 one ninety-ninth of the unextinguished*1104 value ($15,662.50) as of October 1, 1924, in the amount of $158.21. Under Weiss v. Wiener,279 U.S. 333">279 U.S. 333, such unextinguished or residual cost or value may not be taken as a deduction by the lessee, such lessee not being the owner of the property leased. Under such circumstances, it is argued in behalf of petitioner that it is only logical and just that depreciation should be allowed the lessor, the petitioner, in the instant case. That some deduction should be allowed petitioner herein does seem to us right and proper, namely, the one ninety-ninth of the unextinguished value of the building as of the effective date of the lease, which the respondent did allow.
The record does not disclose at what date the building on the lot was demolished. The stipulation shows, however, that the lessee entered into possession of the premises under date of October 1, 1924, and that it or its assigns at all times since remained in possession thereof and that the demolition of the building "occurred and was completed in the year 1927, and that no salvage value whatsoever was realized by petitioner therefrom." What rental, if any, may have been paid the lessor, petitioner, *1105 by the lessee prior to the actual demolition of the building by the latter is not disclosed by the record.
In the circumstances, there being no evidence adduced which is, in our opinion, sufficient to overcome the presumption of the correctness of the respondent's determination as indicated in his notice of deficiency, we must and do approve the same. We are also of the opinion that without additional evidence there is no proper basis for allowing an increase in the deficiency as heretofore determined by the respondent and any increase in deficiency is denied.
Judgment will be entered for the respondent.