dissenting. For the reasons set forth below, I respectfully disagree with the allowance by the majority opinion in this case of an abandonment loss.
As the findings of fact of the majority opinion explain (majority op. pp. 205-206), even though Vandom had no profits (and therefore contrary to the partnership agreement), Vandom made payments of interest on behalf of petitioner with regard to the loan petitioner obtained from the bank. Because the payments by the partnership of interest petitioner owed to the bank were contrary to the partnership agreement, the provision of the partnership agreement making petitioner not liable to reimburse the partnership for interest paid out of partnership profits would appear to be inapplicable. Vandom accounted for these payments of interest on behalf of petitioner as accounts receivable (i.e., as loans made to petitioner by Vandom and as debts owed by petitioner to Vandom).
When petitioner allegedly abandoned his interest in Vandom, petitioner apparently walked away from these debts he owed to Vandom (in the total principal amount of at least $6,000). Petitioner’s relief from, or the extinguishment of, the debts petitioner owed to Vandom appears to constitute consideration and should, in my opinion, cause the transaction in issue to be treated either as a sale or exchange, or as a distribution. See La Rue v. Commissioner, 90 T.C. 465, 482-483 (1988); Middleton v. Commissioner, 77 T.C. 310, 319-324 (1981), affd. per curiam 693 F.2d 124 (11th Cir. 1982); O’Brien v. Commissioner, 77 T.C. 113, 118-120 (1981); Freeland v. Commissioner, 74 T.C. 970, 980-983 (1980).
Further, as the majority opinion explains, the authorities are somewhat unsettled concerning the legal question of whether a partner can ever abandon an interest in a partnership and obtain with regard thereto a section 165 ordinary loss deduction. Note that in Echols v. Commissioner, 935 F.2d 703 (5th Cir. 1991), revg. Echols v. Commissioner, 93 T.C. 553 (1989), a capital, not an ordinary, loss was allowed with respect to the abandonment of a partnership interest. Apart from that unsettled legal question, however, the authorities are quite clear and consistent that before an abandonment loss of any kind can be allowed the taxpayer has a heavy burden of proof to establish that a true abandonment of the property occurred, which abandonment must be evidenced by affirmative acts. See, e.g., Echols v. Commissioner, 93 T.C. 553, 557 (1989), revd. 935 F.2d 703, 706 (5th Cir. 1991), in which we stated—
for an abandonment to be effective for purposes of section 165(a), the abandoning party must manifest an intent to abandon by some overt act or statement reasonably calculated to give a third party notice of the abandonment. * * *
Particularly with regard to intangible, passive property such as an ownership interest in a partnership, “the need to manifestly express the intent to abandon is especially important.” Majority op. pp. 209-210.
Even while reversing our opinion in Echols v. Commissioner, supra — with the explanation that, in its opinion, we focused too much on the actions of the partnership, rather than on the actions of the partner-taxpayer claiming the abandonment loss — the Fifth Circuit in Echols v. Commissioner, supra, noted that the taxpayers therein made a—
clear and unequivocal indication to * * * [the other partners] and the world that * * * [they] were “walking” from their ownership interest in the Partnership. And they kept that vow, never thereafter to return to acts of ownership toward or contributions to the Partnership. [Echols v. Commissioner, 935 F.2d at 706.]
As an additional element of the taxpayer’s burden of proof, the taxpayer must also establish that the underlying transaction or events (on which the alleged abandonment loss is based) did not, in fact, represent or involve a distribution, a dissolution and liquidation, or a sale or exchange. Boehm, v. Commissioner, 326 U.S. 287 (1945); Commissioner v. Houston, 283 U.S. 223 (1931); La Rue v. Commissioner, supra; Middleton v. Commissioner, supra; O’Brien v. Commissioner, supra; Freeland v. Commissioner, supra; Pallan v. Commissioner, T.C. Memo. 1986-76.
In regard specifically to petitioner’s burden of proof in this case, a review of the record herein indicates that petitioner (contrary to his alleged 1981 abandonment) claimed a continuing ownership interest in Vandom not only on his 1981, but also on his 1982 and his 1983 Federal income tax returns, each of which was prepared by an accountant. Also, the findings of fact set forth in the majority opinion do not adequately establish express affirmative acts of abandonment by petitioner with regard to his interest in Vandom.
I respectfully suggest that the abandonment loss claimed in this case should be disallowed on the ground either that in conjunction with the termination of petitioner’s interest in Vandom a sale or exchange, or a distribution to petitioner, occurred, or on the ground that petitioner has failed to satisfy his burden of proving that he abandoned his partnership interest in Vandom in 1981.
Parker, Cohen, Jacobs, and Whalen, JJ., agree with this dissent.