*4252 1. In determining the distributive net income of the life beneficiary of a trust estate, there must be deducted those payments which, under the laws of the State having jurisdiction of the trust, are to be paid from the income of the trust before any payment may be made to such beneficiary.
2. Under the laws of Massachusetts the cost of repairs to buildings operated for the production of income is to be paid from the income before any amount is distributable to the life beneficiary. The cost of alterations to a building made by the trustee, pursuant to a lease, to fit the leased premises to the use of the tenant, which alterations do not increase the life of the building, is to be amortized over the period of the lease and the amount of such amortization paid from the income before any amount is distributed to the life beneficiary.
*1336 The Commissioner determined a deficiency of $4,006.72 in income tax for 1920 and an overassessment of $801.47 in income tax for *1337 1919, and mailed notice thereof to the petitioner under date of September 11, 1925. *4253 On November 9, 1925, the petitioner filed with the Board an appeal from such determination of the Commissioner.
FINDINGS OF FACT.
The petitioner is a resident of North Easton, Mass., with his place of business in Boston, Mass.
The petitioner is one of the sons of Frederick L. Ames, who deceased on or about September 13, 1893. Under the will of said Frederick L. Ames, a certain trust was created for the benefit of the petitioner, which so far as is here material, provided that the income thereof was to be paid to him during his natural life and at his decease the principal was to be distributed among his children. Similar trusts were created for the benefit of other children of the decedent.
In 1902 the trustees under the will of said decedent purchased a building at 304-306 Boylston Street, Boston, Mass., of which a one-half undivided interest therein was purchased for the trust of which the petitioner is the life beneficiary and the other undivided one-half interest for the similar trust of which a brother of the petitioner was the life beneficiary. The building upon such property was several stories high. At the rear there was an extension one story in height.
*4254 From the time of the purchase until June 1, 1914, the first floor and part of the basement were occupied by a florist. From 1914 to 1919 this portion of the property was vacant during part of the time and during the remainder of such period was occupied by a committee for French wounded and by the Belgian relief committee at a nominal rental. From the date of acquisition to 1919 only the most urgent of repairs were made to the building and in the latter year it was in poor condition. Under date of May 7, 1919, the trustees entered into a lease of the first floor and a portion of the basement for a period of five years from July 1, 1919. The lessee was to use the property as a tea room and restaurant. Under the terms of the lease the lessor was to expend not more than $7,500 in repairs and alterations upon the premises and if more was spent the excess was to be paid by the lessee in equal monthly payments over the term of the lease.
During 1919, the trustees paid out $26 for repairs to such property and $3,831.42 for alterations in such leased portion of the premises. It also paid rental commissions of $487.50 for securing the lease. During the year 1920, the trustees expended*4255 $1,667 for repairs to said premises and $6,091.20 for alterations to such leased portion of the premises. Upon their books of account for the trust of which *1338 petitioner was beneficiary the trustees charged one-half of the amounts so expended to an account known as "Alterations and Repairs," a part of their capital accounts. During the year 1919, $922.46 of this amount was charged to income and deducted from income distributed to the petitioner. During 1920, the trustees transferred $1,139.80 of this amount from such account to the income account and deducted such amount from the income distributed to the petitioner. During 1921 and 1922, the balance of such expenditures was charged to income account and deducted from the income distributed to the petitioner. The trustees prepared and filed their accounts as trustees with the probate court of the County of Bristol, Mass., in which accounts said expenditures were charged against the income of the life beneficiary in the amounts shown by the books of the trustees, as aforesaid, and which accounts were duly approved by the Judge of said probate court. In computing the deficiency the Commissioner refused to allow the reduction*4256 of any portion of said payments.
OPINION.
PHILLIPS: In computing the distributive share of the petitioner in the net income of the trust estate of which he was the life beneficiary, the Commissioner refused to allow as a deduction any part of the expenditures made by the trustees during the years 1919 and 1920, on the ground that the amounts involved were chargeable to the principal of the trust fund and were not deductible from income. The question before us is not that of determining whether the payments in question are deductible in computing the net income of the trust, but rather that of determining whether the distributive share of the petitioner in the income of the trust is to be reduced by such payments. In determining whether such amounts were to be charged to the principal of the trust fund, or were to be deducted from the income of the life beneficiary, we must look to the decisions of the courts of the State in which the trust is created. Under decisions of the courts of Massachusetts all current expenses such as taxes, insurance, mortgage interest and repairs are properly chargeable against the income of real property and are to be deducted from such income before*4257 any payment is made to the life beneficiary. On the other hand, additions of a permanent character are to be paid for from the principal of the trust fund. The trustees are vested with considerable discretion in determining in which of these classes expenditures fall. ; ; . In the latter case the court held that improvements which did not permanently increase the value of the inheritance but did enhance the income were properly treated by the trustees as chargeable against income of the trust.
*1339 In the case before us it appears that the trustees expended certain amounts as commission for securing a lease for a term of five years and in altering the premises to meet the needs of the new tenant. The portion of the property involved had formerly been used by a florist. It was now to be used as a restaurant and lunch-room. It was necessary to change the location of the entrance to the property, to install new types of electric fixtures and to change the locations of such fixtures, to rearrange the radiators and to*4258 make over the heating system in the building, to erect partition walls and replace the floors, to tear out much of the woodwork and replace it with new woodwork which would harmonize with the new fixtures installed by the tenant and, after this work was done, to repaint the entire store. All of this work was done for the purpose of adapting the store and basement for the new use to which it was to be put. It did not increase the life of the property and there was no assurance that it would be of any value after the lease expired. A new tenant coming in at the end of the lease might require much the same thing done to fit the premises for a different use. Such expenditures can not be classed as ordinary and necessary repairs nor can they be classed as additions to the property. They fall between the two and in our opinion are properly chargeable against income over the period of the lease under which they are made. It would not be proper from the standpoint either of income tax or from the standpoint of estate accounting to charge such alterations entirely against the principal account nor would it be proper to charge them against the income in the year in which the alterations*4259 are made, for if the life tenant dies before the expiration of the lease the remainderman secures the advantage of the expenditure for such alterations. The same is true of the commission paid for securing the lease, which ran for a period of five years from July 1, 1919. In recomputing the distributive share of the petitioner in the income of the trust for 1920, one-fifth of such expenditures made in 1919 from the trust of which he is beneficiary and two-ninths of the expenditures so made in 1920 should be deducted.
In addition to the expenditures for alterations to fit the premises to the use of the tenant, certain repairs were made to the building, including the portion which was subject to the new lease. The walls were repaired; broken plaster was cut out and replaced; worn hardware was replaced by new; the roof gutters and conductors used to drain the water from the roof were repaired and in some instances replaced, leaking skylights were repaired; and broken glass replaced. Repairs were made upon the cornice of the building and expenditures made for other similar items in the nature of *1340 repairs necessary to preserve the building and keep it in efficient operating*4260 condition, all at a cost of $1,667 in 1920, of which one-half was properly chargeable against the income of the life tenant. Under the decisions of the courts of Massachusetts such repairs are charged against income and serve to reduce the amount which is paid to the life beneficiary. In recomputing the distributive share of the petitioner in the income from the trust this one-half should be allowed as a deduction from the 1920 income.
The Commissioner having determined no deficiency for 1919 but an overassessment, which it is admitted would result in a refund (if not barred by limitation), the Board is without jurisdiction and the proceeding, so far as it relates to 1919, will be dismissed for want of jurisdiction. ; .
The deficiency will be recomputed on 20 days' notice, under Rule 50.