dissenting: 1. During the year .1935 the partnership of Collins & Banfield sustained a loss of $12,480.19 from trading in grain futures on grain exchanges. In the determination of the deficiency for 1935 the respondent allowed the deduction of the loss in computing the net income of the partnership. By an amendment to his answer the respondent alleges that the loss was from the sale or exchange of capital assets during that year and that he erred in allowing a loss in excess of $2,000, under section 117 (e) of the Kevenue Act of 1934.
*783No testimony was offered by the petitioner or by the respondent upon this issue. The parties entered into a stipulation of facts, which is incorporated in the majority report. At the hearing of these proceedings counsel for the petitioner stated:
⅝ * * There was another question involving whether certain wheat transactions, margin transactions in wheat, which involved a loss of some $12,000 in the year 1935 were ordinary losses deductible in full, or whether they were losses subject to the capital limitation provisions of the statute. The Commissioner disallowed the loss in full and applied the $2,000 limitation. After some chreful study of the facts, we shall not put on testimony with respect to that issue, although it is not covered in the stipulation, and I take it the presumption of the correctness of the Commissioner’s determination will therefore apply to that particular item.
Counsel for tlie respondent then stated that counsel for the petitioner was in error in assuming that there was any presumption of correctness in the Commissioner’s determination, since under the statute the burden of proof upon the issue was upon the respondent.
Thereafter, counsel for the petitioner and. the respondent entered into supplemental stipulations which are incorporated in the majority report.
In its opinion the Board states that “the facts herein do not indicate whether the transactions were short sales.”
In his brief counsel for the petitioner does not contend that the losses of $12,480.19 were not from “short sales of property” within the meaning of section 117 (e) of the Revenue Act of 1984. His only contention is that the respondent has not shown that they were not losses from hedging transactions, which are deductible from gross income in accordance with the Board’s opinion in Ben Grote, 41 B. T. A. 247.
I think it clear from the record that both counsel for the petitioner and counsel for the respondent considered the phrase “dealings in grain futures on grain exchanges” as synonymous with “short sales of property” within the meaning of section 117 (e) of the applicable statute.
The phrase “dealings in grain futures on grain exchanges” has a well understood meaning. If a man buys wheat for future delivery on a grain exchange he is not, of course, entering into a short transaction. The buyer is not regarded as dealing in grain futures. He has merely purchased wheat to be delivered in the future and if he does not sell his contract prior to the date of the expiration of the contract the wheat is delivered to him pursuant to the terms thereof.
Where a man has a loss upon dealings in grain futures he sustains a loss from a short sale, as the term is generally understood.
*784In Ben Grote, supra, tbe Board beld in its syllabus as follows:
The purchases and sales of wheat futures by a wheat farmer, made entirely for protection against price fluctuations, held, related to his business of production and sale of wheat, and losses sustained in such transactions, held, not capital losses subject to the deduction limitations of section 117, Revenue Act of 19S4.
In our findings of fact we referred to these purchases and sales of wheat futures as “short sales.”
In Anderson v. State, 2 Ga. App. 1; 58 S. E. 401, 410, it was held that the transaction termed “futures” is this:
One person says that X will sell you cotton at a certain time in the future for a certain price. You agree to pay that price, knowing that the person you deal with has no cotton to deliver at the time, but with the understanding that when the time arrives for delivery you are to pay him the difference between the market value of that cotton and the price you agreed to pay if cotton declines, and if cotton advances he is to pay you the difference between what you promised to give and the advance in market price.
To the same effect is Hentz & Co. v. Booz, 8 Ga. App. 577; 70 S. E. 108, 110. Cf. Plank v. Jackson, 128 Ind. 424; 26 N. E. 568, 569; Lemonius v. Mayer, 71 Miss. 514; 14 So. 33, 34.
The petitioner’s reliance upon Ben Grote, supra (see also Farmers & Ginners Cotton Oil Co., 41 B. T. A. 1083), is not well based. There is not a scintilla of evidence that the dealings in grain futures by the partnership of Collins & Banfield were in the nature of hedging transactions.
I think it was clearly the intention of Congress by section 117 (e) of the Revenue Act of 1934 to disallow the deduction of more than $2,000 from short sales of property. Nowhere in the taxing statute or in the Commissioner’s regulations is it provided that losses from short sales of property may be allowed in a greater amount than $2,000, even though those transactions are hedging transactions. It is true that in G. C. M. 18658, Cumulative Bulletin XVI-2, p. 77, the respondent held in a particular case that where a taxpayer was engaged in carrying on operations in commodities dealt in on organized exchanges he was entitled to inventory goods on hand at market price and hence entitled to deduct losses sustained on short transactions in certain circumstances. There is no evidence, however, that such “certain circumstances” are present in this case.
Furthermore, it should be observed that rulings reported in the Internal Revenue Bulletin are declared in each bulletin to be “for the information of taxpayers and their counsel as showing the trend of official opinion in the administration of the Bureau of Internal Revenue; the rulings other than Treasury Decisions have none of the force or effect of Treasury Decisions and do not commit the Department to any interpretation of the law which has not been formally approved and promulgated by the Secretary of the Treasury.”
*785Under the internal revenue acts the Commissioner, with the approval of the Secretary, is authorized to promulgate regulations for the administration of the acts. Those regulations are entitled to great weight. But the rulings of the Commissioner in particular cases are not regulations of the Commissioner. This was so held by the Supreme Court in Helvering v. New York Trust Co., 292 U. S. 455. In that case the Supreme Court said:
* * * The rulings, I. T. 1879, 1660, and. 1889, cited by the Commissioner were made before the passage of the 1924 act, but they “have none of the force or effect of Treasury Decisions and do not commit the Department to any interpretation of the law.” See cautionary notice published in the bulletins containing these rulings. * * *
In my opinion it was not incumbent upon the respondent to negative the possibility that the losses on the short sale transactions here involved were losses from hedging transactions. The stipulated facts bring the case squarely within section 117 (e) (1) of the Revenue Act of 1934. The partnership is entitled to deduct only $2,000 of the $12,480.19 losses sustained upon the short transactions here involved.
2. On March 4, 1935, the petitioner purchased certain real estate situated in Multnomah County, Oregon, without any agreement with the grantor respecting the taxes assessed against the property prior to such acquisition or as to the payment of taxes thereon for 1935 which would become due and payable in 1936. Section 69-710 of the Oregon Code for 1930 provides:
As between tbe grantor and grantee of any land, when there is no express agreement as to which shall pay the taxes that may be assessed thereon before the conveyance, if such land is conveyed at the time or prior to the date of the warrant authorizing the collection of such taxes then the grantee shall pay the same, but if paid after the date the grantor shall pay them.
The taxes upon this parcel of property which became duo and payable in 1936 were paid by the petitioner in that year in the amount of $1,321.53. The respondent has disallowed the deduction from petitioner’s gross income of the taxes paid upon the ground that the taxes constituted a part of the cost of the property and are not “taxes paid” within the meaning of the statute. I think that this ruling is clearly wrong.
If the petitioner had made his income tax returns for 1935 and 1936 upon the accrual basis the petitioner would be entitled to the deduction of the taxes here involved; for the taxes were not levied until after the petitioner had purchased the property and taxes do not accrue “until the events by which that liability is fixed have occurred.” Commissioner v. Cudahy Family Co. (C. C. A., 7th Cir.), 102 Fed (2d) 930, and authorities cited therein. Since the petitioner made his returns on the cash basis, the taxes are a legal deduction from the gross income of 1936, as the petitioner contends.
*786In Commissioner v. Coward (C. C. A., 3d Cir.), 110 Fed. (2d) 725, a taxpayer wlio purchased a parcel of real estate in New Jersey on October 16, 1933, and a second parcel on January 8, 1934, was held entitled to deduct on the cash basis all of the taxes paid by her in 1934 on the first piece of property and all but %65 of the taxes on the second piece of property. The taxes in question were assessed as of October 1, 1933, and would have become a lien upon the property on December 6, 1933, if not paid in 1934 when they became due. In that case, as here, the Commissioner contended that the taxes which had accrued against the property prior to the date of purchase might not be deducted from gross income when paid by the purchaser, upon the ground that they constituted a part of the cost of the property. This contention was rejected by the court. I think that the reasoning of the court in that case is sound.
It is furthermore to be observed that under section 69-710 of the Oregon Code the petitioner was liable for the payment of the taxes which became due in 1936. If the taxes had been paid by the grantor he would have had a valid claim against the petitioner for the recovery of the taxes. In this situation it seems to me that it is immaterial that a lien for the payment of the taxes later to be levied attached on March 1,1935.
The interpretation placed by the Board upon a transaction of this sort is contrary to commercial practice. Ordinarily the cost of real estate is what a man pays the seller therefor. If he contracts- with the seller to pay taxes that are owed by him the amount of such taxes becomes a part of the cost of the property. But that is not the situation here. The seller here did not know at the date of sale the amount of the taxes which would be assessed on his property for collection in 1936. The petitioner had to pay them and he did pay them. I dissent from the conclusion that the taxes paid by the petitioner in 1936 are not a legal deduction from his gross income.
Hill agrees with this dissent.