- 19 - that it is the taxpayer’s primary use of the property that is relevant. It is, thus, the taxpayer’s primary use of the property, and not some other person’s use, that determines classification.8 The taxpayer in question, of course, is the person electing to use asset guideline classes for purposes of computing its depreciation deductions for property placed in service during the year.9 That it is only the electing taxpayer’s use that counts is verified by the special rule in the regulations that applies to leased property. After stating the general rule that “property shall be included in the asset guideline class for the activity in which the property is 8 Generally, as in this case, the taxpayer is the owner of the property. See, however, sec. 1.167(a)-4, Income Tax Regs., which provides for lessee depreciation of permanent leasehold improvements to a lessor-owner’s premises; see also Depot Investors, Ltd. v. Commissioner, T.C. Memo. 1992-145 (allowing lessee cost recovery of a leasehold improvement over the remaining lease term). 9 Sec. 1.167(a)-11(b)(1), Income Tax Regs., provides: “The allowance for depreciation of eligible property * * * to which the taxpayer elects to apply this section shall * * * constitute the reasonable allowance for depreciation of such property under section 167(a).” (Emphasis added.) Although Clajon is a partnership and, thus, not itself subject to the income tax, see sec. 701 (partners not partnership subject to income tax), the depreciation deduction is taken in computing Clajon’s taxable income, see sec. 703(a), and the regulations provide that, if a partnership places eligible property in service, the partnership is to make the election to apply sec. 1.167(a)-11, Income Tax Regs., sec. 1.167(a)- 11(e)(3)(ii), Income Tax Regs.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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