*1295OPINION.
Murdock :The determination and contention of the respondent that the loss in this case is a capital loss and the deduction therefor limited to $2,000, is rejected on authority of Commissioner v. Freihofer, 102 Fed. (2d) 787; Lloyd Jones, 39 B. T. A. 531; Sherwin A. Hill, Administrator, 40 B. T. A. 376. Thus the petitioners have sustained the burden of proof and are entitled to a favorable decision on the only issue submitted for decision up to and including the moment when all of the evidence in the case had been submitted and the petitioners rested.
Counsel for the respondent asked leave of the Board, after all of the evidence was in, “to file an amended answer to conform to the proof”, stating “It is now the respondent’s position that the petitioner has failed by the evidence to prove any cost basis whatsoever, and * * * the claimed loss should be eliminated entirely.” Permission to file the amended answer was granted with the understanding that the petitioners denied any allegations to be made in the amended answer. An amended answer was filed in which it was alleged that the petitioners had deducted a loss of $17,996.06 of which the respondent had allowed $2,000 and “the said sum of $2,000 was erroneously allowed as a deduction in computing net income for the year 1935 for the reason that petitioner has failed to prove the cost basis of the real estate in question.” The respondent made claim for the increased deficiency which would result. The Board’s rules require that the *1296answer shall contain a statement of any facts upon which the Commissioner relies for affirmative relief. The Commissioner also has the burden of proof to establish facts to support any claim for affirmative relief. He has not in this case made any allegations to show what the cost of the property to these petitioners was or that it was less than $80,800, as shown in the return. Obviously, the Commissioner can not profit by a motion to amend his answer to conform to the proof, which proof he contends is a failure of proof on the part of his adversary to prove a fact which was not in issue up to that time.
A further answer to this contention of the respondent is that the evidence shows with reasonable certainty under the circumstances that the fair market value of the stock given by these petitioners in exchange for the property was at least $80,800. The petitioners do not claim a loss based upon any greater basis. The opening price for the stock on the New York Curb Exchange in the spring of 1929 was $28.50 a share. Both John O. Fowler and J. G. Sterchi, the person from whom the real estate was purchased, were familiar with the corporation Sterchi Brothers Stores, Inc. They agreed in their negotiations leading up to the exchange that the stock had a value of $20 a share and would pass in the exchange at that value. It is also clear that the value of the real estate at that time was at least $80,800. The fact that an exchange took place under these circumstances is some evidence that the value of the stock and the value of the real estate were about the same. The petitioner had additional shares of the stock which is also some indication that the parties, after bargaining at arm’s length, must have thought that 4,400 shares were about equal in value to the value of the real estate. The cost of the building is shown by the deductions claimed and allowed for depreciation. The petitioner, later in the fall of 1930, sold his remaining shares at what he described as a sacrifice at $10 a share. We conclude from all of the evidence that the value of the shares given for the property was not less than $80,800 when exchanged. Thus if that figure is important it is proven.
The petitioners contend that their basis for gain or loss on the real estate was the fair market value of the real estate at the time it was received in exchange for the stock because their gain or loss on the stock would be computed by taking the fair market value of the real estate as the amount realized and, consequently, that same figure would have to be used thereafter in computing gain or loss on the real estate. Here, however, there is no reason to believe that the value of the stock was substantially different from the value of the real estate at that time and we need express no opinion about this argument of the petitioners.
Reviewed by the Board.
Decision will be entered wider Rule 50.