Legal Opinion

Fackler v. Commissioner

United States Board of Tax Appeals

Decided November 14, 1941No. Docket No. 102063PublishedCited by 44 opinions

In 1933 the petitioner, at a cost of $5,461.08, acquired a lease for 99 years, renewable forever, on certain land and a six-story building situated thereon. Thereafter the petitioner continued to sublet the property to various tenants until September 1938, when he sold the lease at a gain.

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In 1933 the petitioner, at a cost of $5,461.08, acquired a lease for 99 years, renewable forever, on certain land and a six-story building situated thereon. Thereafter the petitioner continued to sublet the property to various tenants until September 1938, when he sold the lease at a gain. Held, that the lease was property used in a trade or business and of a character subject to an allowance for depreciation and, therefore, was not a capital asset within the definition of section 117(a)(1) of the Revenue Act of 1938.

1Opinion of the Court

*712OPINION.

Turner:

The petitioner appears to have acquiesced in the respondent’s determination in so far as it concerns the personal property acquired from the Sloan-Prospect Corporation and apparently used in and about the building until its sale along with the leasehold in 1938. No issue was raised in the petition with respect to it, nor was any contention made by petitioner at the hearing or on brief that the respondent’s determination with respect thereto is erroneous. The *713issue and the argument relate only to respondent’s determination with respect to the lease.

As to the lease, the…

2Cases cited2 opinions

  1. Flint v. Stone Tracy Co.Supreme Court of the United States · 1911
  2. Weiss v. WeinerSupreme Court of the United States · 1929

3Cited by44 opinions

  1. Curphey v. CommissionerUnited States Tax Court · 1980
  2. Elliott v. CommissionerUnited States Tax Court · 1959
  3. Appleby v. CommissionerUnited States Tax Court · 1961
  4. Estate of Mundy v. CommissionerUnited States Tax Court · 1961
  5. Starke v. CommissionerUnited States Tax Court · 1960

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