American S. Afr. Line v. Commissioner

*753 Respondent determined deficiencies of $2,710.91, $8,304.97, and $9,789.40 in petitioner's income taxes for 1929, 1930, and 1931, respectively. Petitioner assails the recomputation of depreciation on its ships, based on a determined life of 33 1/3 years, and contends that the total useful life of the vessels is 20 or 24 years.

*754 FINDINGS OF FACT.

Petitioner, a New York corporation with principal office in New York City, is engaged in the operation of freight and passenger vessels between New York City and south African ports. In 1926 it acquired for this service the West Isleta, West Cawthon, Eastern Glen, and Eastern Glade, and Western Knight. The Western Knight was lost in 1929, and the Chincha was purchased in that year to replace it. In January 1930 petitioner acquired a new vessel, the City of New York.

The West Isleta,*1275 West Cawthon, Eastern Glen, and Eastern Glade are cargo vessels of about 5,600 gross tons, equipped with reciprocating triple expansion engines and Scotch boilers of about 200 pounds pressure. They are of the three-island deck type, with two decks, two masts, and one smokestack. The United States Shipping Board built the West Cawthon in 1918 and the West Isleta in 1919; they have a 24-hour fuel consumption of 135 and 150 barrels of Bunker C oil, respectively. The Eastern Glen and Eastern Glade were built in Japan in 1920, and have respective 24-hour fuel consumptions of 36 and 34 tons of coal. The Chincha is a cargo vessel of 6,348 gross tons, built in England in 1913; it is equipped with a reciprocating quadruple expansion engine and Scotch boilers of 220 pounds pressure. It has two flush decks and one orlop deck, two masts, and one smokestack. All five ships have an average speed of 10 knots an hour. They each have accommodations for 12 passengers.

The City of New York is a twin-screw motor ship of 8,272 gross tons, and carries freight and passengers. It was built at Chester, Pennsylvania, at a cost of $1,918,158.88. It is equipped with two*1276 Sun-Doxford Diesel engines of 2,700 horsepower each, has two solid propellers, three flush decks, and accommodations for 60 passengers. Its average speed is 13 1/2 knots, and its fuel consumption 140 barrels of Diesel oil in 24 hours.

All of petitioner's vessels are classed with the American Bureau of Shipping, and have been insured since acquisition for the following amounts: West Isleta, $318,000; West Cawthon, $310,000; Eastern Glen, $312,000; Eastern Glade, $318,000; Chincha, $355,000; City of New York, $1,200,000, but from June 1930 until 1932, $1,266,667. Upon the loss of the Western Knight petitioner collected about $450,000 in insurance; the Chincha was purchased for $146,521.91.

Petitioner's cargoes from New York to South Africa consist of farming and mining machinery, automobiles, foodstuffs, lumber, baled piece goods, stockings, tobacco, hardware, structural steel rails, locomotives, and household goods. Its return cargoes consist of chrome, corundum and copper ores, mica, asbestos, fluorspar, hides, *755 skins, mohair, wool, and tanning bark. Several of the South African ports have little harbor protection and inadequate*1277 docking facilities, so that cargo must often be landed by lighter.

On its trade route petitioner has to meet the competition of eight foreign lines, mostly British, which have large fleets. Some of these vessels are more modern in design and faster than petitioner's by several knots. An agreement among the competitive lines prevents the simultaneous sailing of vessels on this route.

During the past 10 years there has been a tendency to construct cargo vessels abroad with finer hulls and to equip them with improved turbine or Diesel engines capable of developing a speed of 12 or 14 knots an hour. Vessels laid during the period of the World War were designed for great cargo capacity rather than speed, and their materials and workmanship were inferior to those available in normal times. Many of the Shipping Board vessels, in excess of commercial needs, have been since sold for scrap. No cargo ships have been built in the United States for the past 10 years.

In December 1932 the American Bureau of Shipping listed 1,275 ships of over 4,000 gross tons burden, of which 999 were classed. Of the total, 8.2 percent were over 20 years old, and 4.5 percent over 25; of the classed*1278 ships, 4.5 percent were over 20, 3.1 percent over 25, and 1.1 percent over 30.

The probable useful life of the West Isleta, West Cawthon, Eastern Glen, Eastern Glade, and Chincha, from the time of construction, is 25 years each, and of the City of New York, 28 1/2 years. A reasonable allowance to be deducted for 1929, 1930, and 1931 for exhaustion, wear and tear, and obsolescence is 4 percent of the agreed base for the first mentioned five ships and 3 1/2 percent for the City of New York.

OPINION.

STERNHAGEN: The Commissioner having determined that as to all of the ships owned by the petitioner during the taxable years in question the proper rate to be used in determining the statutory reasonable allowance for depreciation, including obsolescence, is 3 percent, the petitioner has instituted this proceeding to establish that the rate as to all of its ships, except the City of New York, should be 5 percent, and as to the City of New York should be approximately 4 percent. This issue was tried at length, both sides presenting, in addition to the evidence of direct fact as to the properties, the opinions of persons engaged in one way and another in the*1279 design, construction, operation, engineering, insurance, registration, survey, inspection, and appraisal of ships generally and of this charcter.

*756 Since the determination of the proper rate of depreciation involves a consideration not alone of facts borne of observation and experience, but also of inferences as to future probability, it is impossible to make a purely logical exposition of the decision. The weight given to the opinions of the several witnesses eludes analysis. The contest can not be tabulated like the strikes, balls, hits, and errors of a baseball game. If a complete exposition were made of the evidence and of the manner of its appraisal and consideration, there would still remain an imponderable leap to the conclusion. The crucial part in reaching a decision must be played by the trier who hears the evidence and observes the witnesses. The opinion in such a case can perform only a slight service as a legal precedent. It is merely a specific conclusion which embodies a consideration of the entire record in that case - no more and no less. The rate fixed, unlike the depreciation base, is not unalterable. If it becomes demonstrably evident that the*1280 probable period of amortization of the investment is shorter or longer than now determined, the rate applicable to future years is still subject to adjustment in the light of such evidence. With passing years, added experience should reduce the field of necessity for prediction and estimate.

We have considered with great care all of the evidence and find it impossible to sustain the Commissioner's determination. Thirty-three and one third years is, as shown by this record, longer than anyone could reasonably expect these ships usefully to last. It would be exceptional if they should do so, and the depreciation rate should not be based on an extraordinary possibility. On the other hand, the facts and circumstances shown by the evidence indicate that the 20-year life predicted by some of the petitioner's witnesses is probably too short. The experience of the Chincha has itself been such as to cause the petitioner to compromise with this 20-year estimate, and it can not be said that the Chincha is atypical.

The implication of some of petitioner's evidence is that the depreciation, or more especially the obsolescence, deduction may be an instrument of relief to a taxpayer*1281 from the rigors of commercial competition. But the deduction is applicable not to a taxpayer's business, but to the property used in the business. Obsolescence is measured primarily not by earnings, but by the duration, in time, of economic usefulness of the property under investigation.

Our own conclusion, from the evidence, is that a reasonable depreciation allowance, sufficient to include obsolescence, should be measured by a useful life of 25 years for all of the petitioner's ships except the City of New York, and that the useful life of the City of New York should be taken at 28 1/2 years. On these periods, the straight-line *757 annual percentage rate which should properly be used is 4 percent upon the Eastern Glen, Eastern Glade, West Isleta, West Cawthon, and Chincha, and 3 1/2 percent upon the City of New York.

Judgment will be entered under Rule 50.