dissenting: I think the facts clearly show that in the taxable year petitioner incurred a loss of $2,000 and that he is entitled to deduct that loss under section 23 (e) (1) or (2) of the Code. I am unable to agree with the majority opinion in this case that petitioner’s loss was of a nonbusiness bad debt within the meaning of section 23 (k) (4) of the Code. When petitioner paid the $2,000 in 1944 in compromise of his indebtedness of $5,000 to Silverman, he had no debt against anyone. No debtor was in existence.
The petitioner testified, and other evidence indicates, that the corporation liquidated and went out of business in 1938. The majority opinion found merely that the corporation carried on no further business activity after 1938. I think that the record justifies a finding that the corporation not only went out of business in 1938, but that it also ceased to exist at that time. If that be true, it follows that when the petitioner settled the suit by the payment of $2,000 in 1944, no debt from the corporation to the petitioner could then arise. Abraham Greenspon, 8 T. C. 431. See also Fox v. Commissioner, 190 F. 2d 101.
In the case of Frank B. Ingersoll, 7 T. C. 34, we held that a stockholder of a corporation who guaranteed a mortgage note of the corporation and subsequently had to pay about $12,000 under his guarantee, after the reorganization of the corporation in a bankruptcy proceeding, sustained a business loss. So it seems to me that under the foregoing decisions petitioner is entitled to an ordinary loss of $2,000 and that his loss should not be limited by the provisions of the Code applicable to nonbusiness bad debts.