subject to a depreciation allowance; see Browning Co., 6 B.T.A. 914 (1927), Dec.
2363 (Acq.).
The issue raised in this case is whether or not a license with a renewal
privilege may be subject to a depreciation allowance. Regulation § 1.167(a)-3
clearly states that an intangible asset with an unlimited life is not subject to a
depreciation allowance. The question then becomes whether the renewal privilege
of the license in this case causes the license to be viewed as having an unlimited
useful life.
The U.S. Court of Appeals for the Fifth Circuit has ruled on this issue, stating
that a liquor license that is renewable has an indeterminable useful life, since the
renewal privilege is of indefinite duration. The court stated that because the
renewal privilege was dependent on the taxpayer’s wishes as well as upon the
license-granting city’s future course of action, there was no rational basis for
prediction as to duration. [See Morris Nachman v. Comm., 51-2 USTC ¶9483, 41
AFTR 172, 191 F.2d 934 (1951)]. The U.S. Tax Court reached a similar
conclusion regarding a liquor license in E. W. Hill, 38 TCM 481, Dec. 26,
979(M), TC Memo, 1964-253. Aff’d on another issue, 66-2 USTC ¶9707, Sec.
79, 103 P-H Memo TC, 367 F.2d 646 (1981).
In this case, which dealt with taxicab licenses, the U.S. Tax Court examined at
great length the factual and legal situation of a taxpayer asserting that a renewable
taxicab license was limited in life due to doubts about the future actions of the
license-granting city. The court dismissed this argument, stating that the taxpayers
did not establish from experience (or any other source) that the license was of
limited useful life; thus, the court disallowed a depreciation allowance for the
license, quoting the pertinent provisions of Regulation § 1.167(a)-3 in the opinion.
(See W. K. Co. v. Comm., 56 T.C. 434 (1971), aff’d in unpublished order by 7th
Cir., 5/21/73.) In making its decision, the court also cited Toledo TV Cable Co.,
55 T.C. 1107 (1971), wherein the U.S. Tax Court held that taxpayers failed to
establish that certain municipal franchises for cable television had determinable
useful lives, and thus disallowed depreciation deductions. The court cited
numerous cases and stated the rule that whether or not a franchise will be renewed
indefinitely is a question of fact to be answered in accordance with the facts
known or reasonably anticipated at the end of the period for which the return is
filed; the court noted that the burden of establishing a useful life is on the
taxpayer and concluded that the taxpayer had not carried such burden. In that case
the court emphasized the importance of foreseeable circumstances that could
adversely affect a renewal privilege, indicating that if a taxpayer could show that
the intangible asset (i.e., here, a franchise) would probably not be renewed, it
would be deemed to have a limited life and be allowed a depreciation deduction.
In the case at hand, there is significant uncertainty over whether the license of
Cabletech will be renewed, the latter being contingent on the city’s satisfaction
with the services provided. Given the current regulations and case authority on
this issue, it appears that Cabletech will not be able to carry a burden of proof to