dissenting: These proceedings have been submitted upon a stipulation, and there is therefore no room for dispute as to the primary or evidentiary facts. The only question is whether they *800reasonably support a finding that the debt covered by the railroad’s bonds was recoverable only in part. If they do, the finding should not be withheld through any fear that unforeseen events or possible economic conditions may perchance bring about a complete recovery of the debt at its maturity in 1950.
It seems to me clear from the evidence that at the end of the taxable year no one could reasonably doubt that the debt would not b8 entirely paid. Earnings had been steadily diminishing, interest was defaulted, and a receiver had been appointed at the behest of a creditor. The petition for receiver averred that the interest ($13,330,491) exceeded the gross operating income ($10,211,785). There is not the slightest indication in the stipulation that conditions would improve or that the prospect for complete recovery in 1950 would become any brighter. Certainly no one in the open market was optimistic enough to appraise the chances as very good. Why then should the Board refuse to recognize what the market so realistically reflects? I do not mean to stand for the idea that fluctuations in market value of bonds are to be taken as gauges of the extent of recoverability or as measures of the statutory deductions. That idea was rejected in Second National Bank of Philadelphia, 33 B. T. A. 750. But when the other evidence indicates that the debt is recoverable only in part, the market prices may help to give realistic assurance that the taxpayer’s best judgment of the future is not too lugubrious.
This, I thought, is what the full Board had decided in Second National Banh of Philadelphia, supra. There the taxpayer’s officers weighed the extent of recoverability of some railroad and other bonded debts, “which in 1931 were in default as to interest, and the debtor was, as to each, in receivership”, concluded they were recoverable only in part, and wrote off and deducted the remainder of $26,050. The charge-off was made before the bank examiner had appeared and entirely on the taxpayer’s own initiative. The evidence of nonrecoverability was quantitatively less and was no more convincing than this, and upon such evidence it was, after full Board review, held that the deductions were proper. In that case there was another point — a further charge-off upon the mere direction of a national bank examiner the Board held was not within the statute; but that was because it was thought that a categorical direction of a bank examiner based only upon a drop in market value was not sufficient to satisfy the revenue act. The $26,050 deduction was not affected by the bank examiner’s direction but was supported by default and receivership. So that decision seems to me to be a complete precedent for a deduction here, and there is no reason to discriminate between a national bank acting upon the judgment of its officers and an individual acting upon his own *801judgment. Botli must be tested by the evidence of record, and I think the evidence here supports the taxpayer’s judgment no less than did the evidence there. Either that decision should be overruled (although it was not appealed, and the Commissioner acquiesced in it, C. B. XV-2, p. 21), or this decision should follow it. They can not consistently stand together.
As to the quantum of recoverability, it seems to me the taxpayer was well this side of the doubtful area when she adopted 20 as the recoverable part and treated only the excess above this as the nonrecoverable part which she might properly deduct.
Melloít agrees with this dissent.