Dennis W. Stark - Page 31



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          costs of the gate must be capitalized because they constitute a             
          "major repair or replacement."                                              
               Regardless of whether the gate is viewed as separate from or           
          integral to the fence, we believe the substantial nature of the             
          replacement renders it a capital expenditure.  Furthermore, the             
          new gate did improve the property as it freed up the area that              
          formerly was necessary for the path of the old swing gate.  Poles           
          were added to the existing fence to support the new gate.  Cf.              
          Honigman v. Commissioner, 55 T.C. 1067, 1081 (1971), affd. in               
          part, revd. in part and remanded on other grounds 466 F.2d 69               
          (6th Cir. 1972) (replacing concrete floor section was a capital             
          expense where structural supports were added).  Considering all             
          the facts and circumstances, we hold that the expense of                    
          replacing the gate is capital in nature.                                    
               We next consider the $3,400 deduction claimed by Lakeview              
          with respect to work done on its roof.  The roof was removed                
          "right down to the wood" and then replaced, along with the                  
          addition of a new roof drain.                                               
               Petitioner relies on Oberman Manufacturing Co. v.                      
          Commissioner, 47 T.C. 471, 482 (1967), where the removal of the             
          material covering the roof, the insertion of an expansion joint,            
          and the recovering of the roof with new material was held to be             
          currently deductible since it merely kept the leased property in            
          an operating condition over its probable useful life.  In Oberman           
          Manufacturing Co., steel plates that were the basic foundation of           
          the roof were not replaced.  By contrast, Lakeview's entire roof            



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