Gertrude B. Whittemore, Petitioner, v. Commissioner of Internal Revenue, Respondent

Gertrude B. Whittemore, Petitioner, v. Commissioner of Internal Revenue, Respondent. Docket No. 8518. Promulgated February 28, 1927. Nelson S. Speneer, Esq., for the petitioner. W. F. Gibbs, Esq., for the respondent. This' proceeding is for the redetermination of a deficiency of $3*553.11 in income tax for the calendar year 1919 arising, to the extent of the amount'in controversy, from the addition ’by the¡Commissioner -to the selling- price of certain- real estate of the sum of $9,666.(57 for depreciation which had not been taken by the petitioner in any income-tax return during her ownership of the property. FINDINGS OF FACT. The petitioner is a resident of Naugatuck, Conn. In 1919 she sold a parcel of real estate for $175,000, on which sale she paid a commission of $3,500. The gross proceeds of the sale to the petitioner were $171,500. The property was acquired by devise in 1911. Its estimated value’on March 1, 1913, which was accepted by theCom-missioner, was $170,000. To the profit of $1,500, based upon that value, the petitioner in her return added" an item of depreciation of $2,000 claimed and allowed in her’ return for 1918. The Commis-sióner added to the $3,500 -further items of depreciation computed by him for earlier years, not'taken by the petitioner in any income-tax return, amounting -to $9,666.67, thus 'determining a profit of $13,-166.67. In each year since 1913 the petitioner has paid a tax on her income, not deducting therefrom, except • in 1918, any ‘ amount for depreciation of said real estate. [MAJORITY — MoRRis:] OFINION. MoRRis: The question raised by the petitioner has previously been considered by us and decided adversely to petitioner’s contention. Appeal of Even Realty Co., 1 B. T. A. 355. After the decision of the Court of " Claims in Ludey v. United States, 61 Ct. Cls. 126, which is cited in the petitioner’s brief, we again carefully considered the question;- and x-eached the conclusion, although reluctantly disagreeing 'With the Opinion of the above'court, for which we have the greatest respect, that, in determining gain or loss upon the sale of depreciable property, due allowance must-be made for 'depreciation whether or hot deductions therefor had been taken by the taxpayer in prior-years. ’ Appeals of Cotton Concentration Co., 4. B. T. A. 121; Capital City Investment Co., 4 B. T. A. 933, and Island Line Shipping Co. v. Commissioner, 4 B. T. A. 1055. Judgment will be entered for the respondent.