stating that “When a legal issue is unsettled, or is reasonably debatable” a negligence penalty is generally not appropriate
How later courts described this case
- stating that “When a legal issue is unsettled, or is reasonably debatable” a negligence penalty is generally not appropriate
- “When a legal issue is unsettled, or is reasonably debatable, an underpayment generally will not [be found negligent].”
Written by the judges who cited it.
The opinion
LEAVY, Circuit Judge,
concurring in part:
I concur in the majority’s opinion except with respect to the discussion of whether windbreaks are part and parcel of the land, and whether they have a predictably limited life or an association with depreciable assets. These considerations are unnecessary in the face of 26 U.S.C. § 175 .
I agree with the majority that the allowances for depreciation are governed by 26 U.S.C. § 167 (a). Under §175 * a farmer may treat expenditures for the purpose of soil or water conservation as expenditures not chargeable to capital account and make such expenditures deductible. The same section specifically includes “the planting of windbreaks” within the definition of “expenditures ... for the purpose of soil or water conservation....”
Further, § 175 excludes from its scope structures, appliances, or facilities which are of a character subject to depreciation under § 167.
The only choice to a taxpayer is to treat expenditures for windbreaks as additions to a capital account or as an expense. The election to treat the expenditures as an expense under § 175 is not available to the Eversons, and because of the restrictive language of § 175, neither is a deduction for depreciation under § 167. They are left with only an *239 inclusion of the price of the windbreaks in their capital account.
Section 175 provides in relevant part:
Soil and water conservation expenditures
(a) In general. — A taxpayer engaged in the business of farming may treat expenditures which are paid or incurred by him during the taxable year for the purpose of soil or water conservation in respect of land used in farming, or for the prevention of erosion of land used in farming, as expenses which are not chargeable to capital account. The expenditures so treated shall be allowed as a deduction.
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(c) Definitions. — For purpose of subsection (a)-(1) the terms "expenditures which are paid or incurred by him during the taxable year for the purpose of soil or water conservation in respect of land used in farming, or for the prevention of erosion of land used in farming” means expenditures paid or incurred for the treatment or moving of earth, including (but not limited to) leveling, grading and terracing, contour furrowing, the construction, control, and protection of diversion channels, drainage ditches, earthen dams, water-courses, outlets, and ponds, the eradication of brush, and the planting of windbreaks. Such term does not include—
(A) the purchase, construction, installation, or improvement of structures, appliances, or facilities which are of a character which is subject to the allowance for depreciation provided in section 167, or
(B) any amount paid or incurred which is allowable as a deduction without regard to this section.