¶1dissenting: So far as the prevailing opinion holds that, in determining the loss sustained on the sale of residence property, the original cost thereof is not to be adjusted for depreciation sustained, I dissent upon the grounds set out in the dissenting opinion in Deposit Trust & Savings Bank, Executor, 11 B. T. A. 106.
¶2Nor do I concur with the conclusion of the Board that in computing the gain or loss from the sale of the Baltimore residence, which was converted into business property in’ 1911, no adjustment is to be made for the depreciation which took place between 1911 and 1913. This Board has decided in Even Realty Co., 1 B. T. A. 355, and in succeeding cases that in determining the gain or loss from the sale of property, adjustment was to be made for depreciation. And this was so whether or not there was an income-tax law in effect during the years when the depreciation took place. The reasoning of the Board in the Even Realty Co. decision pursued the same line as that used by the Supreme Court in United States v. Ludey, 214 U. S. 295, although in the latter case the court limits the adjustment to the “ allowable ” depreciation or depletion. The court there did not consider, nor was it called upon to consider, what would be the proper adjustment to be made for depreciation or depletion in some year when there was no income-tax law. Noaker Ice Cream Co., 9 B. T. A. 1100. In the latter case the Board pointed out the results which would follow if cost were to be adjusted by deducting depreciation allowed, based upon the March 1, 1913, value, and expressed the opinion that “ only by taking into consideration depreciation sustained both prior and subsequent to March 1, 1913, on cost can we obtain a true depreciated cost which we can compare with the depreciated March 1, 1913 value.”
¶3That case was decided by the Board after the Ludeydecision and followed the previous decisions of the Board and the consistent and long established practice of the Treasury Department. I know of *37nothing which would require us to change the decision there reached, nor do I conceive that the principles there enunciated were contrary to the Ludeydecision. I do not understand the Ludeycase to hold that the method of computing gain or loss previously used by the Board and by the Treasury Department was incorrect except to the extent that where, during certain years, the amount of deductible depreciation or depletion was fixed- by statute it must be assumed that it was the intent of Congress that only the deductible, and not the sustained, depreciation was to be used for those years. I accordingly dissent from so much of the prevailing opinion as holds that no adjustment is to be made for the depreciation of the Baltimore property which took place between 1911 and 1913.