The opinion
McCALEB, Justice
(dissenting).
It seems clear to me from the facts that Dr. Schlesinger was substantially engaged in the buying, selling and rental of real estate as a trade or business; that he represented in his income tax returns that he was so engaged and that, accordingly, the taxpayer herein is now estopped from contending otherwise. This conclusion appears inescapable from an examination of the income tax returns filed by Dr. Schlesinger for the years 1947,-1948, 1949 and 1950, while he was owner of the properties located in Memphis, which reveal that the major part of his income was derived from real-estate ventures in partnership with his wife and her brother, included in which *61 was the rental and operation of the Bienville Hotel in New Orleans.
During 1947, Dr. and Mrs. Schlesinger received a gross rental of $10,160 from the properties in Memphis and claimed depreciation thereon amounting to $5,500’; in 1948, they received a gross rental of $11,-460 and claimed depreciation amounting to $5,850.49; in 1949, a gross rental of $13,182, and claimed depreciation of $5,850.49 and, in 1950, the gross rental was $11,945 and they claimed the same depreciation of $5,850.49.
Under the provisions of Section 9(L) of Act 21 of 1934, as amended, which was in effect at the time these returns were made by the Schlesingers, a deduction from gross income for depreciation was permissible only on property used “in a trade or business”. 1 Accordingly, the taxpayers, having received a credit for depreciation on these properties of well over $20,000 during the years of their ownership, by representing that they were assets used in their trade or business, should not now be permitted to reverse their position and contend that the profit made on their sale is not taxable because they were capital assets and not “ * * * land used in a trade or business of the taxpayer”.
I respectfully dissent.
. When this provision was incorporated in the Revised Statutes in 1950, as R.S. 47:65, it was amended to provide that depreciation is allowable on the property used “in the trade or business or [that] held for the production of income.”