three buildings in controversy were used in the ranching business. These buildings were residential-type property and were not used or useful in the operation of the ranch except for conferences with Pyka. To say that this rather large residence with a swimming pool, pool house, and guesthouse were a part of and used in the ranching operation stretches the imagination.

We do not understand petitioners to claim that buildings such as these would normally be used in a ranching business, except possibly as the residence of an owner living on the ranch. Rather, they argue that these buildings were on the River Ranch when they bought it and they had to buy the buildings, along with the ranch, and that they bought the entire ranch as a business and that everything on it not converted to personal use should be considered as being used in the business. The theory of depreciating assets not presently in use can be colloquially termed the "idle-asset rule," and the courts have allowed depreciation deductions for such idle assets as barges, a winery, taxicabs, and barns and sheds on a farm.2 P. Dougherty Co. v. Commissioner, 159 F. 2d 269 (C.A. 4, 1946); Kittredge v. Commissioner, 88 F.2d 632 (C.A. 2, 1937); Yellow Cab Co. of Pittsburgh v. Driscoll, 24 F. Supp. 993 (W.D. Pa. 1938). This rule, however, is not applicable in this case. In each of the above cases the assets involved were of the type normally used in the particular business, they had been acquired for the specific purpose of using them in the business, and for the most part had actually been used in the trade or business. Due to varying circumstances, mostly business conditions, the particular assets had been taken out of service to be held for use in the business at a later date, and had not been actually used in the business during the pertinent years. The above cases held that during those years the bases of the various assets for purposes of computing subsequent depreciation or gain or loss on sale must be reduced for allowable depreciation during those periods. Each of those cases relies primarily on the opinion in Kittredge v. Commissioner, supra, wherein the court, after pointing out that the taxicabs there involved were held by the taxpayer for actual use and would have been used if business conditions had justified the use thereof, said:

Hence we think the phrase [used in the trade or business] should be read as equivalent to "devoted to the trade or business"; that is to say, that property once used in the business remains in such use until it is shown to have been withdrawn from business purposes.

There is no evidence in this case that the three buildings here involved were acquired by petitioners for actual use in the ranching

* See also Otis Beall Kent, a Memorandum Opinion of this Court dated Dec. 31, 1953 (12 T.C.M. 1491).

business, were devoted to the ranching business, or were ever used or intended to be used in the ranching business by either petitioners or the former owners of the ranch. The most that can be said is that petitioners made some incidental use of the main house in overseeing the ranching operation simply because it was there. This does not justify a deduction for depreciation based on the entire allocated cost of these three structures under the statute.

Petitioners also argue that depreciation on these buildings is also allowable under section 1.167 (a)-6(b), Income Tax Regs., which states: "A reasonable allowance for depreciation may be claimed on farm buildings (except a dwelling occupied by the owner), farm machinery and other physical property but not including land." Petitioners contend that none of these three buildings constitutes a dwelling occupied by the owners and, therefore, depreciation deductions should be allowed for these buildings under a literal reading of this regulation. We do not believe such a literal construction of the language of the regulation was intended or should be used. Such would require that a deduction for depreciation would be allowable on all buildings on a farm, except a dwelling occupied by the owners, regardless of the use to which they are put. We think such a broad application of the regulation would go beyond the purview of the statute, which a regulation may not do. Commissioner v. Acker, 361 U.S. 87 (1959); United States v. Calamaro, 354 U.S. 351 (1957); United States v. Marett, 325 F. 2d 28 (C.A. 5, 1963). In Manhattan Co. v. Commissioner, 297 U.S. 129 (1936), the Supreme Court said:

The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law-for no such power can be delegated by Congress-but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute is a mere nullity. *** [Citations omitted.]

However, it is also a well-recognized maxim that in interpreting a regulation the courts should, if possible, avoid a construction which will bring into question the validity of the regulation. Northern Natural Gas Co. v. O'Malley, 277 F. 2d 128 (C.A. 8, 1960); Newman v. Commissioner, 76 F. 2d 449 (C.A. 5, 1935).

We think the above regulation can and should be construed and applied in the light of the above principles, and when this is done petitioners can find no support therein. The statute requires that the property be used in the trade or business. The regulation, which does not specifically include the language of the statute, nevertheless uses the terms "farm buildings" and "farm machinery." (Emphasis supplied.) In our opinion this should be construed to mean buildings and machinery used in the business of farming, and we so conclude. Under this

construction the three buildings here involved would not be covered by the regulation, for reasons heretofore stated.

Parenthetically, we add that, considering the main house, the guesthouse, the pool house, and the swimming pool as a compound, and the use to which all of them have been put by petitioners, we think they qualify more as a dwelling of petitioners than as farm buildings. It is true that petitioners have not taken up permanent residence on the River Ranch but they have used this compound frequently for purposes unrelated to the ranch business and have from time to time resided in or dwelt in the compound. On the other hand, there is no evidence that the guesthouse and the pool house were in any way used in the ranch business, except for being on the ranch as a part of the residential compound. They hardly meet the description of "farm buildings."

We would be inclined to allow petitioners a deduction for depreciation on a small part of the main house on the theory that it was used in the business as a ranch office. International Artists, Ltd., 55 T.C. 94 (1970); United Aniline Co. v. Commissioner, 316 F. 2d 701 (C.A. 1, 1963), affirming a Memorandum Opinion of this Court. This would require an allocation of the cost bases of the main house to that portion of the house that could be considered the office, and between that portion of the time that space was used for business and personal purposes, by some formula or another. See discussion in International Artists, Ltd., supra; George W. Gino, 60 T.C. 304 (1973). However, the record is devoid of any evidence upon which we could base even a guess on that part of the entire allocated cost of the main house that might be attributed to business use. The records for the ranch were not kept at the ranch but were kept in petitioner's office in San Antonio. There apparently was a desk in the main house but we have no evidence whether it was used for business or where it was in the house. This is not a situation in which the rule of Cohan v. Commissioner, 39 F.2d 540 (C.A. 2, 1930), can be applied. Petitioners do not argue for an allocation of this sort and consequently have given us no evidence upon which we could reasonably make one. In any event we believe the result would be de minimis, and we see no justification for laboring like a mountain to produce a mouse.

We conclude that petitioners may not be allowed a depreciation deduction for the three buildings here involved for the years here involved.

Because of the agreements and concessions of the parties on other issues,

Decision will be entered under Rule 50.

ESTATE OF ROBERT ABRUZZINO, WILLIAM ABRUZZINO, EXECUTOR, PETITIONER V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 536-72. Filed November 26, 1973.

A West Virginia joint will, executed by decedent and his wife, contained language purporting to limit the wife's disposition of certain stock and real estate to a testamentary gift to her son. Held: Under the law of West Virginia, the wife is contractually bound to retain the stock and real estate during her life and to give them to her son at her death. It follows that her interests in the stock and real estate are terminable and do not qualify for the marital deduction under sec. 2056 (b) (1), I.R.C. 1954. Estate of Edward N. Opal, 54 T.C. 154 (1970), affd. 450 F.2d 1085 (C.A. 2, 1971), followed.

Gary G. Markham, for the petitioner.

Andrew M. Winkler, for the respondent.

OPINION

TIETJENS, Judge: The Commissioner determined a deficiency of $28,796.12 in the Federal estate tax of Robert Abruzzino and an addition of $1,439.80 to that tax under section 6651 (a).1

Certain concessions have been made by both parties so that the only question remaining for decision is whether the estate is entitled to a marital deduction under section 2056 for the value of the interest in real estate and stock in Community Super Markets, Inc., passing to Barbara Abruzzino (hereafter Barbara) pursuant to the terms of the joint last will and testament of Barbara and Robert Abruzzino (hereafter decedent).

This case was fully stipulated pursuant to Rule 30, Tax Court Rules of Practice. The facts which we deem necessary for decision will be referred to below.

Decedent died testate at the age of 69 on December 9, 1967, a resident of Sutton, W. Va. He was survived by his wife, Barbara, two daughters, and a son, William Abruzzino, who was nominated and appointed executor of the decedent's estate and who resided in Gassaway, W. Va., at the time of the filing of the petition in this proceeding. The Federal estate tax return for decedent's estate was filed with the district director of internal revenue, Parkersburg, W. Va.

On December 14, 1967, a joint will, executed by Barbara and decedent on December 20, 1963, was admitted to probate in Braxton County Court, Sutton, W. Va., as the last will and testament of decedent. That will contains the following pertinent provisions:

LAST WILL AND TESTAMENT OF ROBERT ABRUZZINO AND BARBARA ABRUZZINO, HUSBAND AND WIFE, RESPECTIVELY

1 All statutory references are to the Internal Revenue Code of 1954, unless otherwise stated.

We, Robert Abruzzino and Barbara Abruzzino, husband and wife, respectively, of the Town of Cowen, County of Webster, and State of West Virginia, being of sound mind and disposing memory and free from any undue influence, do hereby make, publish and declare this to be, jointly as well as severally, our last will and testament, thereby revoking all former wills which we or either of us may have made.

FIRST: The one of us first dying directs that his or her just debts and funeral expenses be first paid by the personal representative hereinafter named. SECOND: In case my husband, Robert Abruzzino, survive me, I Barbara Abruzzino, give, devise and bequeath to my husband, Robert Abruzzino, all property (real, personal and mixed) of whatever kind and description and wherever located, of which I may die seized or possessed, and I hereby nominate and appoint my husband, Robert Abruzzino, executor of my estate and of this my last will and testament with full power and authority to execute the same according to its true intent and meaning and to serve without bond. THIRD: In case my wife, Barbara Abruzzino, survive me, I, Robert Abruzzino, hereby give, devise and bequeath to my son William Abruzzino forty percent (40%) of my stock in Community Super Markets, Inc.; I give, devise and bequeath to my two daughters, Wilma Virginia Talerico and Frances Rosano, the sum of five dollars ($5.00) each; and I give, devise and bequeath to my wife, Barbara Abruzzino, all the balance and residue of all property (real, personal and mixed) of whatever kind and description and wherever located, of which I may die seized or possessed; and I hereby nominate and appoint my son, William Abruzzino, as executor of my estate and of this my last will and testament with full power and authority to execute the same according to its true intent and meaning and to serve without bond.

FOURTH: In case of our simultaneous death or in case it is not known which one of us survived the other, then it shall be presumed that Robert Abruzzino survived Barbara Abruzzino. In case Barbara Abruzzino survive, she agrees not to dispose of the real estate or the stock in Community Super Markets, Inc., except as provided in the will of the survivor set out below. FIFTH: The survivor of us, after payment of his or her just debts and funeral expenses, gives, devises and bequeaths unto our two daughters, Wilma Virginia Talerico and Frances Rosano, the sum of five dollars ($5.00) each; and the survivor of us gives, devises and bequeaths all the balance and residue of all property (real, personal and mixed) of whatever kind and description and wherever located of which the survivor of us may die seized or possessed to our son, William Abruzzino.

The Commissioner determined that decedent's estate was not entitled to a marital deduction for the value of the real estate and stock in Community Super Markets, Inc., devised and bequeathed to Barbara. He argues that, because Barbara is contractually bound to hold the real estate and stock for her life and to give them to her son at her death, her interests are terminable and not deductible under section 2056 (b) (1). The Commissioner relies on Estate of Edward N. Opal, 54 T.C. 154 (1970), affd. 450 F. 2d 1085 (C.A. 2, 1971).

Petitioner contends that Barbara is not contractually bound to retain the real estate and stock and give, devise, and bequeath them to her son. Petitioner argues that, even if Barbara is bound to give