dissenting: I am of the opinion that the petitioner sustained deductible losses upon the sales made by him of his shares of stock in the American-Hawaiian Steamship Co., the Atlas Tack Corporation, and the Manhattan Co. Marston v. Commissioner, 75 Fed. (2d) 936.
Since the seller and the purchaser were the same individual,' though acting as separate taxable entities, it may be that an intention to repurchase, if it existed at the time of the sale, would contradict the fact of a then juristic sale, or legally premise the existence of an option to repurchase, if the securities sold were actually repurchased. See Shoenberg v. Commissioner, 77 Fed. (2d) 446, 449, affirming 30 B. T. A. 659; certiorari denied, 296 U. S. 586, and Commissioner v. *662Dyer, 74 Fed. (2d) 685; certiorari denied, 296 U. S. 586. However, even if that be true, the existence of that intention at the time of the sale is the essential factual premise of that conclusion. I think this record disproves the presence here of that fact.
Both the sales to and repurchases from the trust were made at market. That fact, in my judgment, on this record, conclusively corroborates petitioner’s testimony that when he sold the stocks to the trust he had no intention to repurchase them. Marston v. Commissioner, supra. No case is cited in the prevailing opinion, nor do I know of any which dispute that position. The sale of the notes with a then purpose to repurchase them certainly is not evidence of the existence of a similar intent with reference to the wholly separate and unrelated stock.
The Shoenberg case, supra, upon which the prevailing opinion largely relies, is distinguishable in that, though the sale and the repurchase there were made at market, the seller advanced to the buyer a large part of the consideration with which the securities were bought. And, in the Dyer case, supra, likewise relied upon, the repurchase did not occur at market.
Leech agrees with this dissent.