The opinion
Black,
dissenting: I do not think that the facts in the instant case are sufficiently different to justify a distinction in this case from what we held in F. and R. Lazarus & Co., 32 B. T. A. 633, now on appeal to the Sixth Circuit, and in a memorandum opinion in H. F. Neighbors Realty Co., affirmed by the Court of Appeals for the Sixth Circuit, 81 Fed. (2d) 173.
I think that the court in the Neighbors case rightly held that the Supreme Court’s decision in Senior v. Braden, 295 U. S. 422 , does not control the decision of the question which we have here to decide. As to the effect of the Supreme Court’s decision in Senior v. Braden , the court said in part:
We see nothing in tile Senior v. Braden holding inconsistent with the existence of a relationship of borrower and lender between the taxpayer and the certificate holders or their trustee, or that compels a holding that the taxpayer’s financing plan resulted in a sale) rather than a loan, even when applying the doctrine there announced in the full import claimed for it by the Commissioner to the estate held by the trustee or the certificate holders in the present case.
A collateral issue is involved with respect to depreciation taken by the taxpayer upon the buildings located upon the leased property, on the theory that the taxpayer still had the beneficial interest in the property, and on the theory that the investment in the buildings was of its capital as owner. The Board allowed the depreciation. We. think it was right, and that the case of Weiss v. Wiener, 279 U. S. 333 , does not here apply. See also Cogar v. Commissioner of Internal Revenue, 44 Fed. (2d) 564 (C. C. A. 6).
The decision of the Board of Tax Appeals is affirmed.
*101 . Of course it seems clear that petitioner would not be entitled to a deduction for both amortization of its so-called leasehold and & deduction for depreciation. If petitioner is entitled to a deduction for depreciation, and I think it is, then its so-called leasehold should simply be regarded as a part of its plan for securing the certificate owners in the loans which were made to petitioner and petitioner should not be allowed any deduction for exhaustion of leasehold.
A deduction for depreciation would take care of its return of capital invested in wasting assets. Therefore I think an opinion in this proceeding should hold that petitioner is entitled to the deduction for depreciation which it claims and should be disallowed the deduction for amortization of leasehold which it claimed on its income tax return and was allowed by the Commissioner.
Arttndell, McMahon, and Leech agree with this dissent.