dissenting: (1) The majority opinion holds that the so-called old partnership sustained a deductible loss on the transfer of its assets to the so-called new partnership. I do not agree.
Either the old and new partnerships were, for present tax purposes, separate and distinct partnerships, or they were not.
In my judgment, the per curiam opinion of the Circuit Court of Appeals for the Second Circuit in the case of Edward B. Archbald, 27 B. T. A. 837; affd., 70 Fed. (2d) 720; certiorari denied, 293 U. S. 594, in which, as in the present case, partnership law of the State of New York was involved, is decisive that, for present purposes, the two partnerships before us were the same. If that be true, of course, the old partnership sustained no deductible loss on a transfer of its assets to itself.
On the other hand, if the old and new partnerships were separate and distinct, for present tax purposes, I think the record amply establishes the absence of any sale or conversion of the assets of the old partnership upon which any deductible loss was sustained.
The changes of capital interests of the old partners in the new firm are comparatively trifling. All the old partners remained in the new partnership. All the assets of the old partnership continued as assets of the new partnership. Its business was the same. Nowhere in the stipulation upon which the case was submitted is it possible to find any intimation that any new money was contributed to the new partnership, except the $50,000 contribution of Dunham, which made no substantial change in the picture presented. The assets of the old partnership were merely distributed to the old partners by a series of bookkeeping entries, and, by the same means, were then used as the contributions of the old partners to the new partnership. In my judgment, no deductible loss was sustained by the old partnership in that transaction. Lester W. Fritz, 28 B. T. A. 408; affd., 76 Fed. (2d) 460. Cf. Grace A. Cowan, Executrix, 30 B. T. A. 296.
(2) The majority opinion denies petitioners a loss on the sale of securities by the partnership of which they were members. The partnership was a “ dealer in securities.” Therefore, the “ wash sale ” provision in section 118 of the Revenue Act of 1928 *822is not applicable. The immediate reacquisition of securities, similar to those sold, is relevant here, only as evidence of the retention by the seller of an enforceable right to repurchase, thus contradicting the fact of a juristic sale. J. R. Young, 6 B. T. A. 656; Harold B. Clark, 2 B. T. A. 555, cited with approval as late as the Shoenberg case, 30 B T. A. 659.
The loss is deductible, if at all, under section 23 (e) (1) of that Act.3
A so-called sale to support a loss under any circumstances necessarily imports the absolute passing of title, legal and equitable. That was so before section 118 (supra) and its earlier prototypes became law. Harold B. Clark, supra. Such statutory provision did not abolish that prerequisite in any case. But, the mere intention of the seller to reacquire even the property sold does not contradict the passing of absolute title in a sale. Harold B. Clark, supra. Such an intent did not have that effect before section 118 (supra), and the similar provisions in the earlier revenue acts, became law. Harold B. Clark, supra. It does not do so now. The intent, alone, to repurchase the same or similar property, except when coupled with the concurrent power to execute it, in the form of a contract or option, does not now affect the tax results against which section 118 is directed. Cf. Shoenberg v. Commissioner, 77 Fed. (2d) 446; certiorari denied, 296 U. S. 586; Dyer v. Commissioner, 74 Fed. (2d) 685; certiorari denied, 296 U. S. 586. However, section 118 is not applicable here. So, any denial of loss on the present sale must rest on the retention, by the seller, of an enforceable right to repurchase the property sold, from the buyer. See Harold B. Clark, supra.
The actual immediate reacquisition of substantially similar securities may be some evidence of the seller’s intention, when selling, to repurchase. But that fact, even if established, is certainly not enough, alone, upon which to predicate the conclusion that the seller retained an equitable title in the securities in the form of an enforceable right to repurchase from the buyer, which is necessary to contradict the admitted sale. Harold B. Clark, supra.
None of the cases cited in support of the majority view, I think, dispute that position. The Shoenberg and Dyer cases, supra, upon which the majority opinion is largely supported, involved section 118. In both cases, the seller completely controlled the buying-corporations and their actions as to the purchase and sale of securi*823ties. From this fact, together with actual reacquisition, the courts concluded that, within the time, before or after the sale, proscribed by section 118, the seller had “ entered into a contract or option to acquire substantially identical property.” That conclusion, under section 118, precluded any deductible loss.
In the present record, it is not even suggested, much less established, that the seller controlled the buyer. The absence of that premise would prevent the conclusion reached in the Schoenberg and Dyer cases, supra, where section 118, supra, was involved. And, much more certainly here, where that provision is not applicable, the absence of that premise prevents the conclusion, essential to the majority view, that the seller retained any enforceable right to repurchase from the buyer.
The present record, in my judgment, discloses an absolute sale.
But the majority view is that no loss on such sale is deductible, in any event, because such sale was not “ in the ordinary course of business ” of the partnership, since its purpose was tax reduction. I disagree. The selling partnership was in business for profit. A purpose to reduce, postpone or avoid Federal income taxes does not condemn the present transaction. Gregory v. Helvering, 293 U. S. 465, affirming 69 Fed. (2d) 809, which reversed 27 B. T. A. 223; Chisholm v. Commissioner, 79 Fed. (2d) 14, reversing 29 B. T. A. 1334; certiorari denied, 296 U. S. 641.
Seduction of its taxes, by any legal means, was, obviously, I think, “ in [its] trade or business ” of increasing the partnership profits. Cf. Walter Thiele, 32 B. T. A. 134.
Arundell agrees with this dissent. Black and Trammell agree with the second point of this dissent.SEC. 23. deductions FROM GROSS INCOME.
In computing net income there shall be allowed as deductions:
(e) Losses T>y individuals. — In the case oí an individual, losses sustained during the taxable year and not compensated for by insurance or otherwise—
(1) if incurred in trade or business.