Howard v. Commissioner , 19 B.T.A. 865 ( 1930 )

OPINION.

Van Fossan:

In this case a division decision was promulgated November 30, 1929. On December 3, 1929, by order of the Chairman, the report was referred to the full Board. The basis of this .action was a suggested inconsistency between the announced conclusion of law and that of the Board in Bonwit Teller & Co., 17 B. T. A. 1019.

Since the Bonwit Teller & Co. case was promulgated, the Board has promulgated, on April 25, 1930, the report in James Butler, 19 B. T. A. 718. In that case we held that a commission paid by the lessor for the procuring of a 99-year lease, renewable forever, on property in Ohio was a capital expenditure to be ratably deducted as the lease was exhausted. That conclusion was based on facts in all ways comparable in the instant case and is controlling here. The action of the respondent was correct.

Turning to the second allegation of error, we are met by a lack of satisfactory evidence. The sum of $3,000 paid by the lessors to the John F. Rees Co., although termed a “ bonus ” was in reality the amount required to place the leased building in the condition suitable and proper for the needs of the tenant. This sum was admittedly expended for various purposes, but the amounts and character of the various items were not shown. Some were for repairs, while others were for the construction or modification of essentially permanent improvements. The evidence before us does not prove that the respondent’s determination was erroneous. Therefore, the action oí the respondent is approved.

This report supersedes the report promulgated November 30, 1929.

Reviewed by the Board.

Judgment will be entered under Bule 50.