dissent">Phillips,

dissenting: I can not agree with the conclusion which has been reached. The statute provides for the allowance of a reasonable deduction for the amortization of such part of the cost of these facilities as had been borne by the taxpayer. What is a reasonable allowance in each case must depend upon the facts of that case. It is obvious that a very wide discretion was vested in the taxing authorities to determine what was reasonable in the case of each taxpayer, the object of Congress being to allow each taxpayer to take as a deduction in his returns the excess of the cost of war facilities over their postwar value to him.

This taxpayer had no income whatever from articles produced in the plant which it has sought to amortize, nor did he have any profits from war contracts. The amount of the amortization determined by the Commissioner is approximately $85,000. Taxpayer’s income for the year 1918 is about one-half of that amount. If it is held that the deduction can be taken only in 1918, the taxpayer is allowed as a deduction only approximately one-half of the amount which should be allowed. He is permitted to recover in his income-tax return only one-half of the excess cost of such facilities, while it was the purpose with which the section was enacted to permit him to recover the full amortization. To me it does not seem that the decision allows a reasonable deduction for amortization.

The property which taxpayer constructed for the manufacturing of war facilities was of no use to him until June, 1920. In the circumstances of this appeal I believe that it would be reasonable to distribute the amortization over the period from the date when the erection of the plant was started to the date when it was put into use in the taxpayer’s postwar business.

That Congress intended that the amortization should be spread over a period of years seems apparent from the fact that under the 1921 Act it may be allowed for the year' 1921. Obviously, a plant would not be in use in 1921 for the construction of articles contributing to the war, nor would there be income from the manufacture of such articles in 1921. It seems clear that Congress did not intend that the amortization must be restricted to those years in which there was income from the manufacture of war facilities, but rather intended that there should be determined in each case what was a reasonable allowance in view of all the circumstances.

Smith and Tettssell concur in the foregoing dissenting opinion.

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