Elliott v. El Paso County

Justice ERICKSON

concurring in part and dissenting in part:

This court granted certiorari to decide whether a self-employed person claiming temporary partial disability benefits pursuant to the Workers’ Compensation Act of Colorado, §§ 8-40-101 to 8-47-209, 3B C.R.S. (1986 & 1993 Supp.), may obtain credit for amounts which he deducted as depreciation from his gross income on his federal tax return when computing his average post-injury weekly wage. The majority holds depreciation must be considered in determining the claimant’s average post-injury weekly wage in part IIA of the opinion. I concur in part IIA. The majority also holds the depreciation deduction must bear “some logical relationship to a self-employed claimant’s actual diminution in earnings as a result of capital expenditures” and remands the case to determine if the depreciation deduction was reasonable. Because of the inequity of placing the burden on the claimant to justify the method the federal government uses to calculate depreciation, I dissent to part IIB.

The majority correctly recognizes that depreciation is an accounting method for allocating a capital asset’s cost over its useful life. Generally Accepted Accounting Principles (GAAP) require that a systematic and rational procedure be used to allocate expenses to the periods during which the related assets are expected to provide benefits. Martin A. Miller, GAAP Guide 1991 § 11.01 (1991). GAAP recognizes a broad range of depreciation methods including straight line and double declining balance.1 Id. at §§ 11.04 to 11.09. The federal government utilizes a depreciation model based on a combination of the double declining balance and straight line models. I.R.C. § 168(b)(1). The system is referred to as the Modified Accelerated Cost Recovery System (MACRS). In addition to the depreciation calculated using MACRS, the taxpayer is also allowed to expense an additional amount in the first *1368year an asset is placed in service. I.R.C. § 179. The total of section 179 depreciation and MACRS depreciation is the amount that a taxpayer deducts from his gross income on his federal tax return.2

In my view, Fireplace Equipment v. Petruska, 796 P.2d 75 (Colo.App.1990), was wrongly decided because it ignores the fact that a business incurs expenses as a result of purchasing equipment. Even if the amount deducted by a taxpayer for depreciation on his federal income tax return does not allocate depreciation expense properly, the expense cannot be ignored. By failing to adopt some method of expense recognition and allocation, the court in Petrusha adopted a method of computing a claimant’s post-injury earnings that overstates his earnings and thus undercompensates the claimant.

Once the majority recognizes that the expense of purchasing an asset has to be allocated over the asset’s life and deducted from gross income to determine post-injury earnings, the question is whether the federal method of allocating the expense of the capital asset is reasonable. The majority remands the case so the administrative law judge (AU) can make this determination and places the burden on the claimant to justify the federal method used for calculating depreciation expense. What the majority requires the claimant to do is to justify the federal government’s method of calculating depreciation as a matter of accounting theory. Placing this burden on the claimant is unfair.

Congress had two principle purposes for replacing more traditional depreciation methods with an accelerated cost recovery system: first, traditional depreciation rules were too complex and involved too many disputes about “inherently uncertain” values of useful life and salvage value; and second, accelerating cost recovery was designed to encourage capital investment.3 S.Rep. No. 144, 97th Cong., 1st Sess. 47 (1981) U.S.Code Cong. & Admin.News 1981, 105. MACRS’s major change to traditional accounting methods is that property is classified into categories which designate an asset’s “recovery period” and all assets are presumed not to have salvage value. I.R.C. § 168. By creating categories for types of personalty and eliminating the concept of salvage value, Congress diminished the frequent disagreements between taxpayers and the IRS about the useful life and salvage value of specific assets.

For the class of asset at issue in this case, MACRS requires the use of a five year recovery period. Two traditional accounting models for depreciation are then applied to yield the depreciation for each year. The net result of this calculation is that the depreciation is greater in the first years of the asset’s life and then levels out for the remainder of the asset’s life.4 The early recognition of expense is further in*1369creased if a taxpayer elects to recognize section 179 depreciation. I.R.C. § 179. See generally Steven C. Thompson & William R. Simpson, Final Regulations Offer Guidance for Expensing Depreciable Assets, 1993 Taxes 309; John M. Beehler, Expensing Depreciable Assets, 1992 Tax Adviser 12.

The majority requires the claimant to prove that the depreciation deduction bears some logical relationship to the claimant’s actual diminution in earnings as a result of capital expenditures. The test espoused by the majority is that the depreciation be reasonable. The federal model of recognizing depreciation is not an unreasonable or illogical method of attempting to match revenue and expense. Congress has determined that the method is sufficiently logical to require taxpayers to comply with it and, although part of the rationale for selecting the model was to encourage investment, it is based on standard models. The federal model may not be the best depreciation model, but to refuse to allow a claimant to use a system of accounting that the federal government requires taxpayers to follow because it is irrational is hypocritical. I would not foreclose the opportunity to prove that a closer matching of revenue and expense is possible under a different model, but the claimant should not bear the burden of unraveling a theoretical debate on expense recognition.

I would hold that once a claimant offers evidence of his depreciation expense under any reasonable model, including the federal model, he has met the burden of showing he is entitled to a deduction for depreciation.5 If the party opposing the claimant asserts that the federal model does not result in proper matching of expense and revenue over the life of the asset, it would be the opposition’s burden to present evidence of a more effective model.6

The fact the federal government adopted MACRS, the accessibility to the claimant’s depreciation statistics, and the benefit of not forcing the claimant to compare the federal method to other depreciation methods makes the federal model a reasonable mechanism for determining depreciation when calculating post-injury earnings.7 The majority opinion forces a claimant to *1370raise, and an AU to resolve, complex issues the federal model was designed to avoid — a determination of useful life and salvage value required by other depreciation methods. This can only create constant and wasteful court disputes over application of theoretical models.

Accordingly, I would remand to the Industrial Claim Appeals Office with directions to remand to the AU so the AU can vacate her supplemental order dated October 22, 1991 and, in the absence of conclusive evidence of a better estimate of depreciation than the depreciation deducted from the claimant’s 1990 federal tax return, with directions to reinstate the original order of temporary partial disability benefits dated June 10, 1991.

SCOTT, J., joins in this concurrence and dissent.

. The purpose of using an accelerated depreciation method, such as the double declining balance method, is to correctly reflect the fact that some assets’ expected productivity and revenue earning power are greater during the earlier years of the assets’ life. In addition, maintenance expenses may increase during the assets’ life. These two factors make accelerated depreciation the best model for cost allocation in many situations.

. The majority notes that the figure the claimant in this case deducted as depreciation on his federal income tax return was $4,610. This figure is derived from the aggregate of the claimant’s section 179 and MACRS depreciation. The taxpayer computes the aggregate depreciation deduction using IRS form 4562. The claimant filed form 4562 in 1990 and arrived at the figure $4,610. This form was used as evidence by the administrative law judge.

. Adopting an accelerated depreciation model encourages capital expenditure by allowing a business to expense a large portion of an asset when the company first uses the asset. In effect, a business can offset revenue by purchasing capital assets. The investment incentive is amplified by section 179 which increases the depreciation in the year the asset is placed in service and in the years that any excess deduction is carried forward. I.R.C. § 179.

.The five year life ascribed to the asset by the I.R.C. means under the straight line method each year of the asset’s life one-fifth (.20) of the basis would be allowed as depreciation. The double declining balance method multiplies twice the percentage that would be applicable if the straight line method were utilized, (i.e. 2 x .20 = .40), to the basis to determine the depreciation for each year. The difference between these two methods is the straight line method recognizes an equal expense each year while the double declining balance method recognizes the largest depreciation in the first year; in each subsequent year the depreciation diminishes.

MACRS applies the double declining balance method until the straight line method would *1369yield a larger allowance; once this point is reached, the straight line method replaces the double declining balance method. I.R.C. § 168(b)(1). Under the convention that the property is placed in service for half a year in the first period and half a year after the last period, I.R.C. § 168(b)(2)(B), the percentages for each year are: Year 1 = .20; Year 2 = .32; Year 3 = .192; Year 4 = .1152; Year 5 = .1152; Year 6 = .0576. (Compare percentages under the straight line method following the half-year convention: Year 1 = .10; Year 2 = .20; Year 3 = .20; Year 4 = .20; Year 5 = .20; Year 6 = .10).

. Claimants as a group are not benefitted by adopting the federal model of depreciation. It is possible to argue that when MACRS is compared to the straight line method, a claimant who files a claim in the early years of expensing a capital asset is overcompensated. Based on a comparison with the straight line method, however, the nature of MACRS means if a claimant files in the later years of expensing a capital asset he would be undercompensated.

. The party opposing a claimant has a number of options in attempting to prove the depreciation deducted by a claimant on his federal tax return does not represent a proper allocation of expense. When depreciation for tax purposes differs from depreciation for financial accounting purposes, GAAP requires a company to maintain a record of the difference. Accounting for Income Taxes, Statement of Financial Accounting Standards No. 96 (Fin. Accounting Standards Bd.1991). In addition, if a claimant has a large section 179 deduction which is carried forward, it could result in improper expense allocation because section 179 is purely the result of a federal policy of encouraging capital investment. The opposing party could eliminate the effect of the section 179 deduction and compute the depreciation using only MACRS. Only as a last resort would an opposing party have to delve into complex pro forma depreciation calculations based on useful life and salvage value that are necessary under traditional depreciation methods.

.The proper allocation of the expense of a capital asset to the revenue the asset creates is one of the most confusing subjects in accounting theory. Handbook of Modern Accounting (Sidney Davids ed. 1970) ("On no subject in accounting has there been so much written and so much confusion as on the subject of depreciation.”).