dissenting: I feel compelled to dissent from the disposition of this case. Indulging in a display in semantics, relying on technicalities rathpr than reality and common sense and exalting form over substance, the Court, in my opinion, is depriving the petitioners of a deduction to which they are entitled both in fact and in law.
As the trier of the facts and having seen and heard the petitioner, Weigman, during the course of his testimony, it is my conclusion and finding that from the time of the acquisition by Weigman of Bird’s stock in tbe Bird Cage Restaurant & Cocktail Lounge, Inc., the Weig-mans considered the operation of the Bird Cape Cocktail Lounge & Restaurant business as their personal business and it was so operated by them as their business throughout the remainder of the year, in which operation they sustained a loss of $118,825.
It is my opinion that the above finding is correct and proper whether or not the corporation technically or otherwise was still in existence and whether or not the title to 'any or all of the restaurant assets remained in it.
Prior to the time of Bird’s departure from the business, he was manager of the business under a manager’s contract which was for a term of 5 years. In the late fall of 1960, after the Weigmans had acquired O’Dell’s interest by paying his stock subscription and making the $10,000 loan, the Weigmans after a study and survey of the operation drew the conclusion that the business was not being operated as it should. They offered suggestions for changes in operating methods and criticized certain procedures which had been instituted by Bird. As a result Bird became indignant and offered to sell his stock to the Weigmans and step out of the business entirely. They accepted and became the owners of all the stock and the operators of the business.
The exact date on which the Weigmans acquired Bird’s stock and the price they paid for it are not clear. They did pay $7,500 for the cancellation of Bird’s manager’s contract with a $500 downpayment on February 5,1961, and the remaining $7,000 on March 2 following.
Not having been experienced in the restaurant business, they undertook to obtain experienced managerial services. They first employed a man by the name of Gausner who proved to be a disappointment and on March 2 he was replaced by Jerry Engliss who was the operating head of Sun Valley Management Corp., which was in the business of operating businesses under contract. Thereafter during the year two other individuals were successively employed, each for a short time with equally disappointing results. From and after the acquisition of Bird’s stock and the cancellation of his manager’s contract, Weigman devoted his full time to the operation of the business. He handled the accounts and dealt with the creditors. He purchased supplies and materials and hired employees including waitresses, chefs, and bartenders. He assumed and paid the liabilities to creditors and suppliers. At no time did he seek protection from such liabilities behind the corporate entity. Not only that, but he was called on by the owner of the restaurant property to execute and he did execute a new lease in his individual capacity in place of the prior lease which had been executed by Bird. Assignment of the lease was permissible and a formal assignment was later made into the corporate name, but by the terms of the lease the individual liability of the petitioner covering the occupancy and use of the premises by the restaurant and cocktail lounge business was specifically reserved.
Except in connection with the execution of the lease as outlined above petitioner at no time had the benefit of the advice and services of a lawyer. There was no recognition or indulgence in corporate formalities. There were no stockholders meetings, no directors were elected, and no directors meetings were held. It is true that there was no change in the style in which the bank account was carried, and the deposits and disbursements were made through the account which had been set up and used during the period o'f the corporate operation of the business. The corporation was not dissolved and there was no transfer of title and Weigman did prepare and file an income tax return on corporate form for the business covering the period from its inception in 1960 to July 1, 1961. Weigman could have of course readily avoided his present difficulties if he had dissolved the corporation and had not continued the use of the 'bank account in the corporate name, but at that time Weigman had other matters deeply on his mind and his time was fully taken in his efforts to finance and operate a restaurant and cocktail lounge business for which he assumed full liability.
On the facts, this is not a case such as Whipple and it is clearly distinguishable from Omaha National Bank v. Commissioner, 183 F. 2d 899, affirming a Memorandum Opinion of this Court, and Eugene Mohr, 45 T. C. 600. It is not a case as the respondent contends of a stockholder’s claiming that he was in the business of making loans to corporations so as to make o'f the loss a business bad debt. The petitioner makes no claim that he was engaged in such a business. The claim is of a loss incurred in the operation of a business, a restaurant business operated by petitioner in respect to which he had made himself personally liable and was so liable.
• More nearly this case falls within the ambit of C. A. Ripley, 26 T. C. 1203. In Ripley as was originally the situation here the corporation had multiple stockholders and the business operation was that of a corporation and no one else. It became a losing proposition and one of the stockholders, by agreement with the other stockholders, took over and operated the business for his own account, the only notable difference being that the corporation continued to have stockholders who were not participating in the operation or in the liabilities and losses. In this instance Weigman had become the only stockholder and there was no occasion for any formal agreement by Weigman with himself when he assumed the liabilities of operation and did operate the restaurant and cocktail lounge business individually. The losses were not bad debt losses, nonbusiness or otherwise, and in enacting tlie nonbusiness bad debt provision of 166(d) of tbe Internal Revenue Code I do not believe that Congress bad any intention, tbougbt, or idea that it was to cover losses such as this. See also Kittle v. United States (W.D. Tenn., 1966, 67-1 U.S.T.C. par. 9241).
The findings and opinion of the Court are written as if petitioners here were claiming as a business loss or business bad debt a deduction of $158,669.67. If he must lose his case I do not feel that he should be put in the light of claiming more than he is or something other than he is.
On their 1961 return petitioners did claim a deduction of $158,669.67 as a “Loss in conjunction with operation of Bird Cage Restaurant and Cocktail Lounge, Inc., of Scottsdale, Arizona.” Of the $158,669.67 so claimed $30,000 represented payments into-the corporation in 1960 to cover the Weigman and O’Dell stock subscriptions and the loans to be made in conjunction therewith. The remainder consisted of the $6,000 paid by the petitioners to the First National Bank on February 7, 1961, in satisfaction of a loan previously made by the bank to the corporation and $118,825 representing the losses sustained in the business in 1961 after petitioner Weigman acquired Bird’s stock and began operating the business.
The losses alleged in the petition were limited to the $6,000 paid to the bank in February 1961 and the $118,825 thereafter lost during the year in the operation of the restaurant. At the trial and in the submission of the case, only the deduction of the $118,825 representing the loss incurred in 1961 in the operation of the restaurant and cocktail lounge business has been claimed.