Depreciation, Amortization, and Cost Recovery

We have encountered at several points the principle that taxpayer’s consumption of only a part of a productive asset in order to generate taxable income entitles taxpayer to a deduction for only that amount of consumption. Such consumption represents a taxpayer’s de-investment in the asset and results in a reduction of basis. We take up here the actual mechanics of some of the Code’s depreciation provisions. The following case provides a good review of depreciation principles and congressional tinkering with them as means of pursuing certain economic policies.

Liddle v. Commissioner, 65 F.3d 329 (3^rd Cir. 1995)

McKEE, Circuit Judge:

In this appeal from a decision of the United States Tax Court we are asked to decide if a valuable bass viol can be depreciated under the Accelerated Cost Recovery System when used as a tool of trade by a professional musician even though the instrument actually increased in value while the musician owned it. We determine that, under the facts before us, the taxpayer properly depreciated the instrument and therefore affirm the decision of the Tax Court.

I.

Brian Liddle, the taxpayer here, is a very accomplished professional musician. Since completing his studies in bass viol at the Curtis Institute of Music in 1978, he has performed with various professional music organizations, including the Philadelphia Orchestra, the Baltimore Symphony, the Pennsylvania ProMusica and the Performance Organization.

In 1984, after a season with the Philadelphia Orchestra, he purchased a 17th century bass viol made by Francesco Ruggeri (c. 1620-1695), a luthier who was active in Cremona, Italy. Ruggeri studied stringed instrument construction under Nicolo Amati, who also instructed Antonio Stradivari. Ruggeri’s other contemporaries include the craftsmen Guadanini and Guarneri. These artisans were members of a group of instrument makers known as the Cremonese School.

Liddle paid $28,000 for the Ruggeri bass, almost as much as he earned in 1987 working for the Philadelphia Orchestra. The instrument was then in an excellent state of restoration and had no apparent cracks or other damage. Liddle insured the instrument for its then-appraised value of $38,000. This instrument was his principal instrument and he used it continuously to earn his living, practicing with it at home as much as seven and one-half hours every day, transporting it locally and out of town for rehearsals, performances and auditions. Liddle purchased the bass because he believed it would serve him throughout his professional career – anticipated to be 30 to 40 years.

Despite the anticipated longevity of this instrument, the rigors of Liddle’s profession soon took their toll upon the bass and it began reflecting the normal wear and tear of daily use, including nicks, cracks, and accumulations of resin. At one point, the neck of the instrument began to pull away from the body, cracking the wood such that it could not be played until it was repaired. Liddle had the instrument repaired by renown [sic] artisans. However, the repairs did not restore the instrument’s “voice” to its previous quality. At trial, an expert testified for Liddle that every bass loses mass from use and from oxidation and ultimately loses its tone, and therefore its value as a performance instrument decreases. Moreover, as common sense would suggest, basses are more likely to become damaged when used as performance instruments than when displayed in a museum. Accordingly, professional musicians who use valuable instruments as their performance instruments are exposed to financial risks that do not threaten collectors who regard such instruments as works of art, and treat them accordingly.

There is a flourishing market among nonmusicians for Cremonese School instruments such as Mr. Liddle’s bass. Many collectors seek primarily the “label”, i.e., the maker’s name on the instrument as verified by the certificate of authenticity. As nonplayers, they do not concern themselves with the physical condition of the instrument; they have their eye only on the market value of the instrument as a collectible. As the quantity of these instruments has declined through loss or destruction over the years, the value of the remaining instruments as collectibles has experienced a corresponding increase.

Eventually, Liddle felt the wear and tear had so deteriorated the tonal quality of his Ruggeri bass that he could no longer use it as a performance instrument. Rather than selling it, however, he traded it for a Domenico Busan 18th century bass in May of 1991. The Busan bass was appraised at $65,000 on the date of the exchange, but Liddle acquired it not for its superior value, but because of the greater tonal quality.

Liddle and his wife filed a joint tax return for 1987, and claimed a depreciation deduction of $3,170 for the Ruggeri bass under the Accelerated Cost Recovery System (“ACRS”), § 168. [footnote omitted] The Commissioner disallowed the deduction asserting that the “Ruggeri bass in fact will appreciate in value and not depreciate.” Accordingly, the Commissioner assessed a deficiency of $602 for the tax year 1987. The Liddles then filed a petition with the Tax Court challenging the Commissioner’s assertion of the deficiency. A closely divided court entered a decision in favor of the Liddles. This appeal followed. [footnote omitted]

II.

The Commissioner originally argued that the ACRS deduction under § 168 is inappropriate here because the bass actually appreciated in value. However, the Commissioner has apparently abandoned that theory, presumably because an asset can appreciate in market value and still be subject to a depreciation deduction under tax law. Fribourg Navigation Co. v. Commissioner, 383 U.S. 272, 277 (1966) (“tax law has long recognized the accounting concept that depreciation is a process of estimated allocation which does not take account of fluctuations in valuation through market appreciation.”); Noyce v. Commissioner, 97 T.C. 670, 1991 WL 263146 (1991) (taxpayer allowed to deduct depreciation under § 168 on an airplane that appreciated in economic value from the date of purchase to the time of trial).

Here, the Commissioner argues that the Liddles can claim the ACRS deduction only if they can establish that the bass has a determinable useful life. Since Mr. Liddle’s bass is already over 300 years old, and still increasing in value, the Commissioner asserts that the Liddles can not establish a determinable useful life and therefore can not take a depreciation deduction. In addition, the Commissioner argues that this instrument is a “work of art” which has an indeterminable useful life and is therefore not depreciable.

... Prior to 1981, § 167 governed the allowance of depreciation deductions with respect to tangible and intangible personality. Section 167 provided, in relevant part, as follows:

Sec. 167. DEPRECIATION

(a) General Rule. – There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) –

(1) of property used in the trade or business, or

(2) of property held for the production of income.

26 U.S.C. § 167(a). The regulations promulgated under § 167 provided that in order to qualify for the depreciation deduction, the taxpayer had to establish that the property in question had a determinable useful life. Reg. § 1.167(a)-1(a) and (b). The useful life of an asset was not necessarily the useful life “inherent in the asset but [was] the period over which the asset may reasonably be expected to be useful to the taxpayer in his trade or business....” Reg. § 1.167(a)-1(b). Nonetheless, under § 167 and its attendant regulations, a determinable useful life was the sine qua non for claiming the deduction. See, Harrah’s Club v. United States, 661 F.2d 203, 207 (1981) (“Under the regulation on depreciation, a useful life capable of being estimated is indispensable for the institution of a system of depreciation.”).

Under § 167, the principal method for determining the useful life of personalty was the Asset Depreciation Range (“ADR”) system. Personalty eligible for the ADR system was grouped into more than 100 classes and a guideline life for each class was determined by the Treasury Department. See Reg. § 1.167(a)-11. A taxpayer could claim a useful life up to 20% longer or shorter than the ADR guideline life. Reg.§ 1.167(a)-11(4)(b). The ADR system was optional with the taxpayer. Reg. § 1.167(a)-11(a). For personalty which was not eligible for ADR, and for taxpayers who did not choose to use ADR, the useful life of an asset was determined according to the unique circumstances of the particular asset or by an agreement between the taxpayer and the Internal Revenue Service. Staff of the Joint Committee on Taxation, General Explanation of the Economic Recovery Tax Act of 1981, 97th Cong. ...

In 1981, convinced that tax reductions were needed to ensure the continued economic growth of the country, Congress passed the Economic Recovery Tax Act of 1981, P. L. 97-34 (“ERTA”). Id. It was hoped that the ERTA tax reduction program would “help upgrade the nation’s industrial base, stimulate productivity and innovation throughout the economy, lower personal tax burdens and restrain the growth of the Federal Government.” Id. Congress felt that prior law and rules governing depreciation deductions need to be replaced “because they did not provide the investment stimulus that was felt to be essential for economic expansion.” Id. Further, Congress believed that the true value of the depreciation deduction had declined over the years because of high inflation rates. Id. As a result, Congress believed that a “substantial restructuring” of the depreciation rules would stimulate capital formation, increase productivity and improve the country’s competitiveness in international trade. Id. Congress also felt that the prior rules concerning the determination of a useful life were “too complex”, “inherently uncertain” and engendered “unproductive disagreements between taxpayers and the Internal Revenue Service.” Id. To remedy the situation, Congress decided that a new capital cost recovery system should be structured which de-emphasizes the concept of useful life, minimizes the number of elections and exceptions and is easier to comply with and to administer.

Id.

Accordingly, Congress adopted the Accelerated Cost Recovery System (“ACRS”) in ERTA. The entire cost or other basis of eligible property is recovered under ACRS eliminating the salvage value limitation of prior depreciation law. General Explanation of the Economic Recovery Tax Act of 1981 at 1450. ACRS was codified in I.R.C. § 168, which provided, in relevant part, as follows:

Sec. 168. Accelerated cost recovery system

(a) Allowance of Deduction. – There shall be allowed as a deduction for any taxable year the amount determined under this section with respect to recovery property.

(b) Amount of Deduction.--

(1) In general. – Except as otherwise provided in this section, the amount of the deduction allowable by subsection (a) for any taxable year shall be the aggregate amount determined by applying to the unadjusted basis of recovery property the applicable percentage determined in accordance with the following table:

* * * * * *

(c) Recovery Property. – For purposes of this title –

(1) Recovery Property Defined. – Except as provided in subsection (e), the term “recovery property” means tangible property of a character subject to the allowance for depreciation –

(A) used in a trade or business, or

(B) held for the production of income.

26 U.S.C. § 168. ACRS is mandatory and applied to “recovery property” placed in service after 1980 and before 1987. 1

Section 168(c)(2) grouped recovery property into five assigned categories: 3-year property, 5-year property, 10-year property, 15-year real property and 15-year public utility property. Three year property was defined as § 1245 property 2 with a class life of 4 years or less. Five year property is all § 1245 property with a class life of more than 4 years. Ten year property is primarily certain public utility property, railroad tank cars, coal-utilization property and certain real property described in I.R.C. § 1250(c). Other long-lived public utility property is in the 15-year class. § 168(a)(2)(A), (B) and (C). Basically, 3-year property includes certain short-lived assets such as automobiles and light-duty trucks, and 5-year property included all other tangible personal property that was not 3-year property. Most eligible personal property was in the 5-year class.

The Commissioner argues that ERTA § 168 did not eliminate the pre-ERTA § 167 requirement that tangible personalty used in a trade or business must also have a determinable useful life in order to qualify for the ACRS deduction. She argues that the phrase “of a character subject to the allowance for depreciation” demonstrates that the pre-ERTA § 167 requirement for a determinable useful life is the threshold criterion for claiming the § 168 ACRS deduction.

Much of the difficulty inherent in this case arises from two related problems. First, Congress left § 167 unmodified when it added § 168; second, § 168 contains no standards for determining when property is “of a character subject to the allowance for depreciation.” In the absence of any express standards, logic and common sense would dictate that the phrase must have a reference point to some other section of the Internal Revenue Code. Section 167(a) would appear to be that section. As stated above, that section provides that “[t]here shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear ... of property used in a trade or business....” The Commissioner assumes that all of the depreciation regulations promulgated under § 167 must, of necessity, be imported into § 168. That importation would include the necessity that a taxpayer demonstrate that the asset have a demonstrable useful life, and (the argument continues) satisfy the phrase “tangible property of a character subject to the allowance for depreciation” in § 168.

However, we do not believe that Congress intended the wholesale importation of § 167 rules and regulations into § 168. Such an interpretation would negate one of the major reasons for enacting the Accelerated Cost Recovery System. Rather, we believe that the phrase “of a character subject to the allowance for depreciation” refers only to that portion of § 167(a) which allows a depreciation deduction for assets which are subject to exhaustion and wear and tear. Clearly, property that is not subject to such exhaustion does not depreciate. Thus, we hold that “property of a character subject to the allowance for depreciation” refers to property that is subject to exhaustion, wear and tear, and obsolescence. However, it does not follow that Congress intended to make the ACRS deduction subject to the § 167 useful life rules, and thereby breathe continued life into a regulatory scheme that was bewildering, and fraught with problems, and required “substantial restructuring.”

We previously noted that Congress believed that prior depreciation rules and regulations did not provide the investment stimulus necessary for economic expansion. Further, Congress believed that the actual value of the depreciation deduction declined over the years because of inflationary pressures. In addition, Congress felt that prior depreciation rules governing the determination of useful lives were much too complex and caused unproductive disagreements between taxpayers and the Commissioner. Thus, Congress passed a statute which “de-emphasizes the concept of useful life.” General Explanation of the Economic Recovery Tax Act of 1981 at 1449. Accordingly, we decline the Commissioner’s invitation to interpret § 168 in such a manner as to re-emphasize a concept which Congress has sought to “de-emphasize.”

The Commissioner argues that de-emphasis of useful life is not synonymous with abrogation of useful life. As a general statement, that is true. However, the position of the Commissioner, if accepted, would reintroduce unproductive disputes over useful life between taxpayers and the Internal Revenue Service. Indeed, such is the plight of Mr. Liddle.

Congress de-emphasized the § 167 useful life rules by creating four short periods of time over which taxpayers can depreciate tangible personalty used in their trade or business. These statutory “recovery periods ... are generally unrelated to, but shorter than, prior law useful lives.” General Explanation of the Economic Recovery Tax Act of 1981 at 1450. The four recovery periods are, in effect, the statutorily mandated useful lives of tangible personalty used in a trade or business.

The recovery periods serve the primary purpose of ERTA. Once a taxpayer has recovered the cost of the tangible personalty used in a trade or business, i.e., once the taxpayer has written off the asset over the short recovery period, his or her basis in that asset will be zero and no further ACRS deduction will be allowed. To avail himself or herself of further ACRS deductions, the taxpayer will have to purchase a new asset. Thus, because the recovery period is generally shorter than the pre-ERTA useful life of the asset, the taxpayer’s purchase of the new asset will increase capital formation and new investment and, as a result, promote the Congressional objective for continued economic expansion.

Thus, in order for the Liddles to claim an ACRS deduction, they must show that the bass is recovery property as defined in § 168(c)(1). It is not disputed that it is tangible personalty which was placed in service after 1980 and that it was used in Brian Liddle’s trade or business. What is disputed is whether the bass is “property of a character subject to the allowance for depreciation.” We hold that that phrase means that the Liddles must only show that the bass was subject to exhaustion and wear and tear. The Tax Court found as a fact that the instrument suffered wear and tear during the year in which the deduction was claimed. That finding was not clearly erroneous. Accordingly, the Liddles are entitled to claim the ACRS deduction for the tax year in question.

Similarly, we are not persuaded by the Commissioner’s “work of art” theory, although there are similarities between Mr. Liddle’s valuable bass, and a work of art. The bass, is highly prized by collectors; and, ironically, it actually increases in value with age much like a rare painting. Cases that addressed the availability for depreciation deductions under § 167 clearly establish that works of art and/or collectibles were not depreciable because they lacked a determinable useful life. SeeAssociated Obstetricians and Gynecologists, P.C. v. Commissioner, 762 F.2d 38 (6th Cir.1985) (works of art displayed on wall in medical office not depreciable); Hawkins v. Commissioner, 713 F.2d 347 (8th Cir.1983) (art displayed in law office not depreciable); Harrah’s Club v. United States, 661 F.2d 203 (1981) (antique automobiles in museum not depreciable). See also, Rev. Rul. 68-232 (“depreciation of works of art generally is not allowable because ‘[a] valuable and treasured art piece does not have a determinable useful life.’“).

... In Brian Liddle’s professional hands, his bass viol was a tool of his trade, not a work of art. It was as valuable as the sound it could produce, and not for its looks. Normal wear and tear from Liddle’s professional demands took a toll upon the instrument’s tonal quality and he, therefore, had every right to avail himself of the depreciation provisions of the Internal Revenue Code as provided by Congress.

III.

Accordingly, for the reasons set forth above, we will affirm the decision of the tax court.

Notes and Questions:

1. Note the court’s account of the evolution of depreciation law. In its first footnote, the court noted that “recovery property” is no longer part of § 168. Section 168 now applies to “any tangible property.”

2. The Second Circuit reached a similar result in Simon v. Commissioner, 68 F.3d 41 (2d Cir. 1995), Nonacq. 1996-29 I.R.B. 4, 1996-2 C.B. 1, 1996 WL 33370246 (cost recovery allowance for a violin bow).

Note: Sections 167 and 168

Section 167 still governs depreciation. It has been supplemented – to the point that it has actually been replaced – by § 168 for tangible property – but not for intangible property. The allowable depreciation deduction of § 167(a) is what is described in § 168 when it is applicable. § 168(a). When § 168 is applicable, its application is mandatory. § 168(a) (“shall be determined”). Application of § 168 is much more mechanical and predictable than application of § 167. The Third Circuit described the mechanics of applying § 167 – and of course, the greater accuracy that § 167 (may have) yielded came at a high administrative cost, both to the taxpayer and to the IRS. The Commissioner’s argument that taxpayer must demonstrate that an asset has a “determinable useful life” in order to claim a deduction for depreciation is an accurate statement of the law of § 167. Applying § 167 required placing an asset in an “Asset Depreciation Range” (ADR), deriving its useful life, determining its future “salvage value,” and then calculating the actual depreciation deduction according to an allowable method. The court in Liddle described this system as “bewildering, and fraught with problems[.]” While ADRs are no longer law, they are still used to determine the “class life” of an asset which in turn determines the type of property that it is – whether 3-year, 5-year, 7-year, 10-year, 15-year, or 20-year property. § 168(e)(1).

The late 1970s and early 1980s was a time of slow economic growth and very high inflation. The court describes the congressional response, i.e., the Economic Recovery Tax Act of 1981 (ERTA). Clearly, Congress – at the urging of President Reagan – was using the tax rules as a device to stimulate the economy. Congress modified the system so that property placed in service in 1986 and after would be subject to the “Modified Accelerated Cost Recovery System” (MACRS). Sufficient time has passed that we do not often have to distinguish between ACRS and MACRS; often we simply refer to the current system as ACRS. Notice that § 168 uses the phrase “accelerated cost recovery system” (ACRS) – implying that we no longer consider this to be depreciation. As we see in the succeeding paragraphs, taxpayers who place property in service to which § 168 applies may “write it off” much faster than they could under the old rules. The Third Circuit in Liddle explained what Congress was trying to accomplish by adopting these rules.

Section 168(e) requires that we identify the “classification of property.” Certain property is classified as 3-year property, 5-year property, 7-year property, 10-year property, 15-year property, and 20-year property. § 168(e)(3). Property not otherwise described is first defined according to the old class life rules, § 168(e)(1), § 168(i)(1), and then placed into one of these classifications. For such properties, the recovery period corresponds to the classification of the property. See § 168(c). In addition, § 168(b)(3) names certain properties whose recovery period is prescribed in § 168(c).

Section 168(b)(4) treats salvage value as zero. This completely eliminates one point of dispute between taxpayers and the IRS. The basis for depreciation is the adjusted basis provided in § 1011. § 167(c)(1).

Section 168(d) prescribes certain “conventions.” We generally treat all property to which § 168 applies as if it were placed in service or disposed of at the midpoint of the taxpayer’s taxable year. § 168(d)(1 and 4(A) (“half-year convention”)). In the case of real property, we treat it as if it were placed in service or disposed of at the midpoint of the month in which it actually was placed in service or disposed of. § 168(d)(2 and (4)(B) (“mid-month convention”)). A special rule precludes the abuse of these conventions through back-loading. We treat all property to which § 168 applies as if it were placed in service at the midpoint of the quarter in which it was placed in service if more than 40% of the aggregate bases of such property was placed in service during the last quarter of the taxpayer’s tax year. § 168(d)(3)(A). In making this 40% determination, taxpayer does not count nonresidential real property, residential rental property, a railroad grading or tunnel bore, and property placed in service and disposed of during the same taxable year. § 168(d)(3)(B).

Section 168(b) prescribes three cost recovery methods. The straight-line method applies to certain property for which the recovery period is relatively long. § 168(b)(3). This of course means that taxpayer divides the item’s basis by the applicable recovery period. In the first and last year of ownership, taxpayer applies the applicable convention to determine his/her/its “cost recovery” deduction. A faster method of cost recovery applies to property whose classification is 15 or 20 years, i.e., 150% of declining balance. § 168(b)(2)(A). This method also applies to specifically named property. § 168(b)(2)(B and C). A faster method still of cost recovery applies to 3-year, 5-year, 7-year, and 10-year property, i.e., 200% of declining balance. § 168(a).

Section 168(g)(2) provides an “alternate depreciation system” which provides for straight-line cost recovery over a longer period than the rules of § 168 noted thus far. Taxpayer may irrevocably elect to apply the “alternate depreciation system” to all of the property in a particular class placed in service during the taxable year. § 168(g)(7). Taxpayer may make this election separately with respect to each nonresidential real property or residential rental property. § 168(f)(7).

Accelerating cost recovery is one policy tool that Congress has to encourage investment in certain types of property at certain times. See § 168(k).

Consider:

1. Taxpayer purchased a racehorse on January 2, 2011 for $10,000 and “placed it in service” immediately. Taxpayer purchased no other property subject to ACRS allowances during the year.

Taxpayer sold the horse on December 31, 2013 for $9000.

2. Taxpayer purchased a “motorsports entertainment complex” on October 1, 2011 for $10M. See § 168(e)(3)(C)(ii). Assume that there is no backloading problem.

Section 179

Section 179 permits a taxpayer to treat “the cost of any § 179 property as an expense which is not chargeable to capital account.” §179(a). The limit of this deduction for 2010, 2011, 2012, and 2013 is $500,000, § 179(b)(1)(B). It falls to $25,000 after that, § 179(b)(1)(C). The limit is reduced dollar for dollar by the amount by which the cost of § 179 property that taxpayer places into service exceeds $2,000,000 in 2010, 2011, 2012, and 2013, § 179(b)(2)(B), and the amount by which such cost exceeds $200,000 after that, § 179(b)(2)(C). Moreover, the § 179 deduction is limited to the amount of taxable income that taxpayer derived from the active conduct of a trade or business (computed without regard to any § 179 deduction) during the taxable year. § 179(b)(3)(A). Taxpayers whose § 179 deduction is subject to one of these limitations may carry it forward to succeeding years. § 179(b)(3)(B).

Other Code Provisions Providing for Cost Recovery or Amortization

Other provisions of the Code state rules applicable to specific investments – generally with the intent of encouraging them. For example, § 174 permits the expensing of research or experimental expenditures. § 174(a)(1).

Section 197

Section 197 permits the amortization of § 197 intangibles. § 197(a). A § 197 includes such intangibles as goodwill, going concern value, intellectual property, a license or permit granted by a government, etc. § 197(d)(1). Section 197 permits ratable amortization over 15 years of the purchase (as opposed to self-creation) of such intangibles. § 197(a), § 197(c)(2).

Do the CALI Lesson, Basic Federal Income Taxation: Deductions: Basic Depreciation, ACRS, and MACRS Concepts. Do not worry about your answers to questions 10 and 11. It is more important that you know how to compute § 179 limits.

Section 280F: Mixing Business and Pleasure

A taxpayer may make expenditures to purchase items that are helpful in earning income and useful in taxpayer’s personal life as well. An automobile may fit this description. So also may a personal computer. These points may lead some taxpayers to purchase items that they might not otherwise purchase, or to purchase items that are more expensive than they might otherwise purchase. Congress has addressed these points in § 280F. It provides limitations on deductions associated with purchase and use of so-called “listed property.”

Section 280F(d)(4)(A) defines “listed property” to be a passenger automobile, any property used as a means of transportation, any property generally used for entertainment, recreation, or amusement, any computer or peripheral equipment, and any other property that the Secretary specifies.

Section 280F(d)(3)(A) denies “employee” deductions for use of listed property unless “such use is for the convenience of the employer and required as a condition of employment.”

Section 280F provides the following types of limitations on cost recovery and § 179 expensing deductions: an absolute dollar limit on such deductions for listed property, a percentage limitation on such deductions for listed property, and a combination of a percentage limitation on an absolute dollar limit on such deductions.

Computation of cost recovery allowances in any year is based on an assumption that all of a taxpayer’s use of listed property was for trade or business purposes. § 280F(d)(2). Thus, a pro rata reduction of allowable cost recovery for less than predominantly business use does not merely extend the cost recovery period.