Dittmar
v.
Comm'r of Internal Revenue

Tax Court of the United States.Jan 31, 1955
23 T.C. 789 (U.S.T.C. 1955)
23 T.C. 789T.C.

Docket No. 45442.

1955-01-31

MARTIN M. AND RUTH ANN DITTMAR, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Leon O. Lewis, Jr., Esq., and John H. Dittmar, Esq., for the petitioners. Edward L. Compton, Jr., Esq., for the respondent.


Leon O. Lewis, Jr., Esq., and John H. Dittmar, Esq., for the petitioners. Edward L. Compton, Jr., Esq., for the respondent.

Petitioner formed a wholly owned corporation to operate a sawmill and act as a source of lumber supply for his sole proprietorship retail lumber business. He invested $5,000 in the corporation's capital stock and made a total of 627 advances to the corporation throughout its life. The advances were for the purchase of capital equipment, for use as working capital, and to satisfy specific obligations which arose from time to time. Repayments of the advances were made by the corporation primarily in lumber. Petitioner continued to make advances to the corporation even though it operated at a loss in every year except one. No notes or security were taken for the advances, no interest was charged, no definite date of repayment was set, and no effort was ever made to borrow from sources other than petitioner. In February 1949, the corporation sold all its capital assets in return for lumber to be delivered to it by the purchasers; thereafter its only activity was, in effect, to fully liquidate its debts to outsiders and, with the remaining assets, reduce the balance of petitioner's advances. The corporation was fully liquidated sometime during the 1950 calendar year, at which time the unpaid balance of petitioner's advances was $49.153.75. Held, the $49,153.75 balance of petitioner's advances represented capital contributions, not loans, and the loss deduction for worthlessness of that balance is limited by the provisions of section 23(g) and 117 of the 1939 Code. Held, further, the loss was sustained, and must be deducted, in 1950 since that was the year in which identifiable events occurred making the loss certain in amount. Held, further, petitioner, by failing in 1950 to record (on his sole proprietorship books) receipt of of the final lumber shipment from the corporation in repayment for the advances, understated cost of goods sold for that year and is entitled to an adjustment therefor.

The Commissioner determined the following deficiencies in petitioners' income taxes:

+------------------------+ ¦Calendar ¦ ¦ +----------+-------------¦ ¦year ¦Deficiency ¦ +----------+-------------¦ ¦1948 ¦$837.38 ¦ +----------+-------------¦ ¦1949 ¦3,845.44 ¦ +----------+-------------¦ ¦1950 ¦6,475.16 ¦ +------------------------+

In the original petition filed herein there was placed in issue by the Commissioner's disallowance of the following deductions claimed by petitioners for partial bad debts of the Lone Star Lumber Company:

+--------------------+ ¦Return ¦Amount ¦ +--------+-----------¦ ¦for-- ¦deducted ¦ +--------+-----------¦ ¦1948 ¦$22,000.00 ¦ +--------+-----------¦ ¦1949 ¦17,107.67 ¦ +--------+-----------¦ ¦1950 ¦11,652.33 ¦ +--------+-----------¦ ¦Total ¦$50,760.00 ¦ +--------------------+

However, at the hearing an amended petition was filed in which petitioners abandoned any contention for the partial charge-off deductions above described. Petitioners, in their amended petition, assign the following errors to the Commissioner's determination:

(a) The Commissioner erred in refusing to allow petitioners to deduct from their income a loss of $50,760.00 represented by a bad debt of Lone Star Lumber Company in either 1949 or 1950.

(b) If it be determined that the bad debt loss mentioned (above) * * * was a proper deduction for 1949, then, and in that event, the Commissioner erred in failing to allow petitioners to deduct the resulting net operating loss deduction in the years 1948 and 1950 as provided by statute.

Petitioners concede that there was no error in respondent's determination with respect to the interest disallowed in 1948.

FINDINGS OF FACT.

Most of the documentary and accounting facts were stipulated and the stipulation is incorporated herein by this reference as a part of these findings.

Petitioners Martin M. and Ruth Ann Dittmar are husband and wife who reside in San Antonio, Texas. They filed joint income tax returns for the calendar year in issue with the collector of internal revenue for the first district of Texas. For convenience Martin M. Dittmar will hereinafter be referred to as petitioner.

Petitioner has been engaged in the operation of a retail lumber yard in San Antonio since 1937. The business was conducted as a corporation until September 1, 1941. Since that date it has been conducted by petitioner as a sole proprietorship under the trade name of Dittmar Lumber Company (hereinafter referred to as Dittmar). Dittmar's books were kept on the calendar year basis.

In 1943, there was a severe lumber shortage and petitioner found it difficult to obtain lumber for sale in his retail business. Therefore, to assure a dependable source of lumber supply petitioner, on April 6, 1943, organized the Lone Star Lumber Company (hereinafter referred to as Lone Star) under the laws of the State of Texas to operate a sawmill and manufacture lumber from logs and standing trees. The corporation received its charter from the State on April 10, 1943. It kept its books and reported its income on the basis of a fiscal year ending March 31. Petitioner formed Lone Star to operate the sawmill because such a venture was speculative and hazardous and he did not wish to risk the assets of his sole proprietorship in it.

Lone Star was incorporated with $5,000 of paid-in capital stock, all of which was owned by petitioner save for a few qualifying shares held by members of his family. During the corporation's entire life petitioner was its president and a director. The amount of the capital investment was set at $5,000 because that was the price paid for the sawmill and some timber rights purchased by Lone Star when it began operations. Petitioner testified that he did not have any more capital to invest in Lone Star at the time and that the advances (discussed below) he thereafter made to Lone Star were, to a large extent, of funds prepaid to his sole proprietorship by its customers for future retail lumber deliveries.

Beginning on April 14, 1943, petitioner made a large number of advances to Lone Star over a period ending December 31, 1949. Those advances took the form either of cash payments to Lone Star, materials supplied to Lone Star, or direct payment to third parties of expenses incurred by Lone Star. The purposes for which the advances were made were (a) to enable Lone Star to purchase capital equipment and to lease timber rights in its first year of operation, (b) to provide Lone Star with working capital, and (c) to enable Lone Star to meet specific obligations, of one sort or another, satisfaction of which was necessary were it to remain in business. Moreover, following the destruction of Lone Star's sawmill by fire on July 4, 1945, as a result of which the mill was inoperative for part of the corporation's fiscal year ended March 31, 1946, petitioner advanced a large sum of money with which Lone Star constructed a mill having production capacity greater than the facilities destroyed. Lone Star never borrowed, or attempted to borrow, money from any source other than petitioner.

In making the advances to Lone Star petitioner did not consider the corporation's ability to repay. Rather, the only consideration was whether or not the advances would serve to increase the corporation's production of lumber and, in effect, the amount and frequency of the advances were controlled solely by Lone Star's needs. No notes were made evidencing the advances, the payment of interest thereon was not provided for, no specific date of repayment was set, and no security (such as a lien on Lone Star's assets) was taken by petitioner. The advances were, however, recorded on Dittmar's (petitioner's sole proprietorship) books as an account receivable due from Lone Star, and a corresponding liability account in Dittmar's favor was maintained on Lone Star's books.

Repayments of petitioner's advances were made by Lone Star primarily with deliveries of lumber to Dittmar, the prices for which were credited to Lone Star's account receivable on Dittmar's books. This was the primary method of repayment contemplated by petitioner and, in fact, Lone Star sold practically its entire output of lumber to Dittmar, making only nominal sales to other customers. A relatively minor amount of repayments was made by Lone Star in cash and through miscellaneous means such as paying some of Dittmar's obligations.

The following data showing the amounts and nature of Dittmar's (i.e., petitioner's) advances and Lone Star's repayments, the balances owed Dittmar by Lone Star during its corporate existence, and Lone Star's earnings record and over-all financial condition, are included at this point:

+-----------------------------------+ ¦ANALYSIS OF ADVANCES AND REPAYMENTS¦ +-----------------------------------¦ ¦ ¦ ¦ ¦ ¦ +-----------------------------------+

A. Number and Amounts

No. of Amount of Fiscal year ending March 31 advances Amount of advances repayments 1944 70 $103,050.80 $22,572.58 1945 91 154,175.71 187,754.14 1946 133 118,549.14 30,280.13 1947 165 249,696.72 280,378.78 1948 97 301,957.34 303,620.89 1949 66 122,072.00 144,765.63 1950 5 1,753.76 31,123.32 1951 1,606.25 Total 627 $1,051,255.47 $1,002,101.72 Final balance of advances $49,153.75

+-----------------------------------------------------------------------------+ ¦B. Nature ¦ +-----------------------------------------------------------------------------¦ ¦Advances ¦ ¦Repayments ¦ ¦ +--------------------------+-------------+----------------------+-------------¦ ¦ ¦ ¦ ¦ ¦ +--------------------------+-------------+----------------------+-------------¦ ¦Cash payments to or for ¦$1,046,481.91¦Cash payments to ¦$38,885.62 ¦ ¦Lone Star ¦ ¦Dittmar ¦ ¦ +--------------------------+-------------+----------------------+-------------¦ ¦Material supplied ¦4,087.81 ¦Lumber “purchased” by ¦957,274.57 ¦ ¦ ¦ ¦Dittmar ¦ ¦ +--------------------------+-------------+----------------------+-------------¦ ¦Miscellaneous ¦685.75 ¦Miscellaneous ¦5,941.53 ¦ +--------------------------+-------------+----------------------+-------------¦ ¦Total ¦$1,051,255.47¦Total ¦$1,002,101.72¦ +-----------------------------------------------------------------------------+

+-----------------------------------------------------------------------------+ ¦LONE STAR'S BALANCE SHEETS FISCAL YEAR ENDING MARCH 31 ¦ +-----------------------------------------------------------------------------¦ ¦ ¦1944 ¦1945 ¦1946 ¦1947 ¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Current assets ¦$66,781.75¦$13,431.67 ¦$18,065.00 ¦$13,262.29 ¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Fixed assets (book value) ¦19,751.82 ¦23,617.01 ¦99,996.53 ¦92,634.72 ¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Other assets ¦484.24 ¦4,699.77 ¦12,756.49 ¦9,272.77 ¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Total assets ¦$87,017.81¦$41,748.45 ¦$130,818.02¦$115,169.78¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Current liabilities to others ¦$4,152.79 ¦$3,567.11 ¦$13,113.86 ¦$23,198.83 ¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Liability to Dittmar Lumber ¦80,478.22 ¦46,899.79 ¦135,168.80 ¦104,486.74 ¦ ¦Company ¦ ¦ ¦ ¦ ¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Capital stock ¦5,000.00 ¦5,000.00 ¦5,000.00 ¦5,000.00 ¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Surplus (or deficit) ¦(2,613.20)¦(13,718.45)¦(22,464.64)¦(17,515.79)¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦Liabilities and net worth ¦$87,017.81¦$41,748.45 ¦$130,818.02¦$115,169.78¦ +------------------------------+----------+-----------+-----------+-----------¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------------------------------------------------------------+

1948 1949 1950 1951 Current assets 1 2 4 $9,855.23 $46,487.41 $2,217.08 Fixed assets (book value) 79,161.93 Other assets 4,567.18 3 188.24 3 188.24 3 $188.24 Total assets $93,584.34 $46,675.65 $2,405.32 $188.24 Current liabilities to others $17,087.73 $988.84 $673.66 5 $62.83 Liability to Dittmar Lumber 102,823.19 80,129.56 50,760.00 49,153.75 Company Capital stock 5,000.00 5,000.00 5,000.00 5,000.00 Surplus (or deficit) (31,326.58) (39,442.75) (54,028.34) (54,028.34) Liabilities and net worth $93,584.34 $46,675.65 $2,405.32 $188.24 FN4 Composed of 64 cents in cash and $2,216.44 in accounts receivable.FN5 This amount is a liability due to Lone Star's “officers.” It is also included in “Current liabilities to others” listed for the 1950 fiscal year.

+---------------------------------+ ¦LONE STAR'S PROFITS (AND LOSSES) ¦ +---------------------------------¦ ¦ ¦ ¦ +---------------------------------+

Fiscal year ending Net profit March 31 (or loss) 1944 ($2,619.17) 1945 (11,101.61) 1946 (8,501.51) 1947 14,283.33 1948 (13,670.79) 1949 (8,096.17) 1950 (6,063.29) 1951 (1 ) FN1 No operations were conducted during this year nor was income received from other sources.

In 1947 or 1948, petitioner realized that he could not operate Lone Star at a profit. By that time lumber was in more plentiful supply and could be purchased by petitioner from other sources more cheaply than he could obtain it from Lone Star. Consequently, in February 1949, Lone Star sold all its capital assets (sawmill, equipment, etc.) in return for specified quantities and types of lumber which the purchasers undertook to deliver to it. One of the contracts of sale, in which lumber valued at $8,784 was stated as the consideration to be paid for certain of Lone Star's assets, provided that deliveries of that lumber were only to be made when, and in the amounts, ordered by Lone Star. Lone Star then discontinued sawmill operations and the only function it thereafter performed were liquidation of the minor amounts of its liabilities to parties other than Dittmar, and reduction of the balance of advances from Dittmar by transfer to Dittmar of the lumber shipments it received from time to time from the purchasers of its capital assets.

There is no evidence that between December 31, 1949, and March 31, 1950, Lone Star satisfied any of its liabilities to outsiders and Dittmar's books indicate that no lumber was transferred to Dittmar during that period. Consequently, Lone Star's balance sheet as of March 31, 1950, accurately represents its financial condition on December 31, 1949. That balance sheet reveals that as of December 31, 1949, Lone Star's current assets totaled $2,217.08. They consisted of 64 cents in cash and $2,216.44 in accounts receivable, the latter representing lumber still due and expected to be received from the purchasers of its capital assets. The balance of advances from Dittmar (i.e., petitioner) on that date was $50,760, Lone Star owed $610.83 to other parties, and a liability of $62.83 was listed as due to Lone Star's ‘officers.’ Subsequent to the close of its 1950 fiscal year, but within the 1950 calendar year, Lone Star paid the $610.83 liability to parties other than petitioner and, with a $1,606.25 shipment of lumber (representing the remainder of its aforementioned current assets of $2,217.08), reduced the balance of the advances from petitioner to $49,153.75. However, the $1,606.25 lumber shipment was not recorded on Dittmar's books either as a credit to the Lone Star accounts receivable or a charge to purchases; but the shipment was reflected in Dittmar's closing inventory for 1950 and to that extent decreased cost of goods sold for the year.

Following transfer to petitioner of the aforementioned $1,606.25 lumber shipment Lone Star's only listed asset was an item of $188.24 in organization expense which had no value. Lone Star's liquidation was completed during the 1950 calendar year.

Petitioner and his wife filed joint income tax returns for the calendar year 1948, 1949, and 1950. In reporting ‘Net profit’ from the Dittmar sole proprietorship (in Schedule C of the returns) they took the following deductions for partial bad debts owed by Lone Star:

+-------------------+ ¦Year ¦Deduction ¦ +------+------------¦ ¦1948 ¦$22,000.00 ¦ +------+------------¦ ¦1949 ¦17,107.67 ¦ +------+------------¦ ¦1950 ¦11,652.33 ¦ +------+------------¦ ¦Total ¦$50,760.00 ¦ +-------------------+

The $49,153.75 balance of petitioner's advances to Lone Star represents capital contributions, not loans, and those capital contributions became worthless in the 1950 calendar year when the liquidation of Lone Star was completed and it was left without any assets. It was in 1950 when petitioner's investment loss in Lone Star was incurred.

OPINION.

BLACK, Judge:

On each of their joint returns for the calendar years 1948, 1949, and 1950, petitioner and his wife deducted as partial bad debts sums representing advances made by petitioner to Lone Star, his wholly owned sawmill corporation. Those deductions, which totaled $50,760, were disallowed by respondent.

Petitioner now contends that the entire $50,760 should be allowed as a bad debt deduction in1950 and that respondent erred in failing to so allow it. He concedes that $1,606.25 in lumber was delivered by Lone Star in 1950, thereby reducing the balance of the advances due him from Lone Star to $49,153.75, and that his repayment was not recorded on the books of his sole proprietorship (Dittmar). It is manifest that Dittmar should have credited Lone Star with this $1,606.25 in 1950 and that when that is done, petitioner's advances to Lone Star which remained unpaid when Lone Star was liquidated in 1950 were $49,153.75. We are convinced from the record that the $1,606.25 lumber shipment was in fact not recorded in Dittmar's purchases account but was reflected in 1950 closing inventory. To that extent petitioner's cost of goods sold for 1950 was understated and his net profit overstated. However, the proper remedy for that error is to increase purchases (and, correspondingly, cost of goods sold) for 1950 by $1,606.25 and we hold that such adjustment should be made. As for the matter of petitioner's advances to Lone Star, therefore, our only concern is with the actual final balance of those advances, which was $49,153.75.

The first question we must decide is whether petitioner's advances to Lone Star were loans or were capital contributions. Petitioner contends, and has the burden of proving, that the advances were loans and that he is entitled to a full deduction, as a business bad debt under section 23(k)(1) of the Internal Revenue Code of 1939, of the unpaid balance thereof. Respondent, on the other hand, argues that the advances were capital contributions and that deduction for their worthlessness is limited by the provisions of section 23(g) and 117 of the 1939 Code.

Decision will be entered under Rule 50. 1. No operations were conducted during this year nor was income received from other sources. SEC. 23. DEDUCTIONS FROM GROSS INCOME.(g) CAPITAL LOSSES.—(1) LIMITATION.— Losses from sales or exchanges of capital assets shall be allowed only to the extent provided in section 117.(2) SECURITIES BECOMING WORTHLESS.— If any securities (as defined in paragraph (3) of this subsection) become worthless during the taxable year and are capital assets, the loss resulting therefrom shall, for the purposes of this chapter, be considered as a loss from the sale or exchange, on the last day of such taxable year, of capital assets.(3) DEFINITION OF SECURITIES.— As used in this subsection the term ‘securities' means (A) shares of stock in a corporation, and (B) rights to subscribe for or to receive such shares.SEC. 117. CAPITAL GAINS AND LOSSES.(b) PERCENTAGE TAKEN INTO ACCOUNT.— In the case of a taxpayer, other than a corporation, only the following percentages of the gain or loss recognized upon the sale or exchange of a capital asset shall be taken into account in computing net capital gain, net capital loss, and net income:100 per centum if the capital asset has been held for not more than 6months;50 per centum if the capital asset has been held for more than 6 months.(d) LIMITATION ON CAPITAL LOSSES.—(2) OTHER TAXPAYERS.— In the case of a taxpayer, other than a corporation,losses from sales or exchanges of capital assets shall be allowed only to the extent of the gains from such sales or exchanges, plus the net income of the taxpayer of (or) $1,000, whichever is smaller. For purposes of this paragraph, net income shall be computed without regard to gains or losses from sales or exchanges of capital assets. If the tax is to be computed under Supplement T, ‘net income’ as used in this paragraph shall be read as ‘adjusted gross income’.

1 Composed of $1,349.23 in accounts receivable and the balance in inventories.Composed of $211.24 in cash and $46,276.17 in accounts receivable. It appears that at least $45,000 of the accounts receivable represents the selling price of the capital assets.

In Sam Schnitzer, 13 T.C. 43, affirmed per curiam (C.A. 9) 183 F.2d 70, certiorari denied 340 U.S. 911, we said:

This question is one of fact. Cohen v. Commissioner, supra ((C.A. 2) 148 F.2d 336). And in deciding whether or not a debtor-creditor relation resulted from advances, the parties' true intent is relevant, Fairbanks, Morse & Co. v. Harrison (N.D. Ill.), 63 Fed.Supp. 495; Edward Katzinger Co., supra (44 B.T.A. 533, affd. (C.A. 7) 129 F.2d 74); Daniel Gimbel, 36 B.T.A. 539. Bookkeeping, form, and the parties' expressions of intent or character, the expectation of repayment, the relation of advances to stockholdings, and the adequacy of the corporate capital previously invested are among circumstances properly to be considered, for the parties' formal designations of the advances are not conclusive, United States v. South Georgia Ry. Co., supra ((C.A. 5) 107 F.2d 3), but must yield to ‘facts which even indirectly may give rise to inferences contradicting’ them. Cohen v. Commissioner, supra. * * * As the Supreme Court said, however, in Talbot Mills (John Kelley Co.) v. Commissioner, supra (326 U.S. 521):

* * * There is no one characteristic * * * which can be said to be decisive in the determination of whether the obligations are risk investments in the corporations or debts. * * *

A careful consideration of the facts of record, in the light of the applicable authorities, leads us to conclude that the $49,153.75 balance of petitioner's advances represents capital contributions.

Petitioner testified that he knew the sawmill venture was speculative and hazardous. Yet despite that— and in the face of net losses by Lone Star in every year of its corporate existence save one, corresponding increases in Lone Star's deficit, and its apparent insolvency from and after the close of its 1945 fiscal year— petitioner continued to make advances without ever charging interest, receiving written evidence of Lone Star's indebtedness, setting a definite date of repayment, or taking any security. Erard A. Matthiessen, 16 T.C. 781, affd. (C.A. 2) 194 F.2d 659. In fact, advances were made throughout and after the 1948 calendar year, by which time, petitioner testified, he realized Lone Star could not be operated at a profit. And, although the balance of advances decreased from a high of $135,168.80 on March 31, 1946, to the final balance of $49,153.75 at Lone Star's liquidation in 1950, the corporation's deficit was increasing during that same period and its insolvency was, consequently, becoming more acute. It is evident from the above, as well as from petitioner's testimony that the 627 advances he made to Lone Star throughout its corporate existence were dictated solely by Lone Star's needs, that a disinterested creditor certainly would not have continued to advance funds for a deficit operation such as Lone Star. Erard A. Matthiessen, supra. Further, the all-inclusive nature of the advances made by petitioner (i.e., for capital assets, working capital, and to enable Lone Star to meet specific obligations), plus the added fact that no effort was ever made to borrow money for Lone Star from other sources, indicate that the parties understood that petitioner was to underwrite all of the corporation's financial requirements. See Erard A. Matthiessen, supra; Alfred R. Bachrach, 18 T.C. 479.

The pattern followed upon Lone Star's liquidation during 1950 is also of pertinence to this issue. Following the sale of Lone Star's capital assets in February 1949, Lone Star was liquidated over a period of time ending in the 1950 calendar year. In that liquidation all of Lone Star's debts to outside creditors were satisfied in full. No pro rata distribution of Lone Star's assets was made between the amounts due those outside creditors and petitioner's advances, as would customarily be the case were petitioner regarded as a bona fide general creditor, nor does it appear that petitioner took any action to enforce payment of at least his pro rata share. Watson v. Commissioner, (C.A. 2) 124 F.2d 437, affirming 42 B.T.A. 52. From this we cannot avoid the inference that petitioner never did intend to enforce payment of the advances or assert the rights of a genuine creditor and that, in fact, his ‘state of mind * * * (with respect to the advances) was akin to that of the ordinary shareholder, who understands that his investment is subject to the risks of the venture and the prior claims of creditors.’ Gooding Amusement Co., 23 T.C. 408. Phil Kalech, 23 T.C. 672, second point decided.

A liability of $62.83 listed as due ‘officers' was unsatisfied, but we deem that of little moment here since it was probably due to petitioner or a member of his family. -------- Notes:

This item represents organization expense.

It is our conclusion that the record belies the formal characterization of petitioner's advances as loans (on the books of Lone Star and Dittmar), Sam Schnitzer, supra; Gooding Amusement Co., supra; Phil Kalech, supra. Further, the fact that Lone Star was formed for the purpose of providing petitioner's retail lumber business with a source of lumber supply does not, under the circumstances, serve to strengthen petitioner's contention. See Harry Sackstein, 14 T.C. 566. We hold, therefore, that the $49,153.75 balance of advances to Lone Star represented capital contributions, deduction for the worthlessness of which is governed and limited by the provisions of section 23(g) and 117 of the 1939 Code. Having held that the $49,153.75 represents a capital investment in Lone Star, it naturally follows that this $49,153.75 becomes an additional part of the cost of the stock which petitioner owned in Lone Star.

The final question for consideration is whether petitioner's loss was sustained in the 1950 calendar year, as petitioner maintains, or, as respondent contends, either prior to 1949 or in 1949 itself.

We think petitioner's contention that his loss was incurred in 1950 must be sustained. Paragraph 16 of the stipulation of facts reads: ‘The Lone Star Lumber Company was liquidated during 1950.’ It is, of course, unnecessary to cite authorities for the proposition that one cannot take a deduction merely because his capital investment has depreciated in value. Regulations 111, section 29.23(e)-4, provides:

SEC. 29.23(e)-4. SHRINKAGE IN VALUE OF STOCKS.— A person possessing stock of a corporation cannot deduct from gross income any amount claimed as a loss merely on account of shrinkage in value of such stock through fluctuation of the market or otherwise. The loss allowable in such cases is that actually suffered when the stock is disposed of. If stock of a corporation becomes worthless, its cost or other basis as determined and adjusted under section 113 and sections 29.113(b)(1)-1 to 29.113(b)(3)-2, inclusive, is deductible by the owner for the taxable year in which the stock became worthless, provided a satisfactory showing is made of its worthlessness. * * *

It is true, of course, that petitioner's investment in Lone Star had but little value at the close of the calendar year 1949. Lone Star sold its assets in 1949 and ceased operations. From then on it was in liquidation until that liquidation was complete in 1950. As detailed in our Findings of Fact, in 1950 petitioner received a distribution from Lone Star of $1,606.25 in lumber. That was his last distribution and there was no prospect that he would receive any more. It, therefore, seems clear that under the Treasury's own regulations and the decided cases petitioner's loss, because of the worthlessness of his investment in Lone Star, was incurred in 1950. It was then that the identifiable event which definitely fixed his loss occurred. See 875 Park Avenue Co. v. Commissioner, 217 F.2d 699, affirming T.C. Memorandum Opinion. In this case the Second Circuit said:

Where a deduction is sought for losses incurred due to stock becoming worthless, the taxpayer must show that it actually lost its value. It is not sufficient to show merely that its value shrank, though the shrinkage was extensive. If it had any recognizable value at all on the claimed date of loss there can be no deduction. Miami Beach Bay Shore Co. v. Commissioner, 5 Cir., 136 Fed.(2d) 408 * * *. Further, the taxpayer must show by some fixed and identifiable event or events, that the stock became worthless in the year for which the deduction is claimed. A subjective determination of worthlessness will not suffice. Boesel v. Commissioner, 2 Cir., 208 Fed. (2d) 817 * * *

We think that the above quotation from the Second Circuit's opinion correctly states the rule governing deductions for losses due to the worthlessness of stocks. Furthermore, we think petitioner has met his burden of proof to show that his loss, because of the worthlessness of his stock in Lone Star, including his additional capital investment of $49,153.75, was incurred in 1950 and we so hold. The applicable provisions which govern the amount of the loss to be recognized are sections 23(g)(2) and 117 of the 1939 Code, printed in footnote 2.