dissenting: As the Member who heard the testimony in this case it seems proper that I should set forth the reasons for my disagreement with the majority opinion. The Commissioner determined that the preferred shares of Orpheum became worthless prior to 1937, the period in which the petitioner seeks to take his loss. To *551prevail petitioner must prove that the shares in fact had value at the beginning of 1937, and that that value ceased within the year 1987. Marie D. Eagleton, 35 B. T. A. 551; affd., 97 Fed. (2d) 62. The undisputed evidence shows that the Orpheum Corporation was declared a bankrupt in 1933, that the creditors were finally paid 30 cents on the dollar, and that the preferred shareholders received nothing. The only possible basis for the attachment of any value to these shares in 1937 is that 250 of the shares were disposed of in over-the-counter sales and that there were some “bid and asked” prices. This testimony came from a bookkeeper of a defunct brokerage firm who knew absolutely nothing about the circumstances of the sales.
The statute allows losses in the year within which the property becomes worthless and at no other time. The rule is not like that provided for bad debts where the ascertainment of the creditor, is all important. It is the period of the loss and not the time the taxpayer learned of his loss which is determinative. Given an identifiable event demonstrating worthlessness, one need not be an optimist.
If we approach the situation here present in the way it usually appears, the error of the majority would seem more self-evident. Thus, should a taxpayer prove that the corporation in which he holds shares has been declared a bankrupt, that the shares have not one penny of liquidating value, and that the creditors will not receive more than 30 cents on the dollar, he must still be denied his loss on such shares if perchance the. Commissioner shows purchases by some badly informed optimists who are ready to gamble on the chances of salvaging something out of the situation. There were 63,840 preferred shares of Orpheum, 10,000 of which had been converted and 9,462 of which were owned by K. A. O., the parent company, leaving some 43,000 preferred shares in the hands of the public. Are these stockholders to be denied their loss at the actual time the shares become worthless because it is shown within the year 1937 less than one-half of 1 percent of the shares were sold over the counter under circumstances not disclosed ? There is not even proof in this case .that this individual taxpayer could have sold his holdings of 1,720 shares within the year 1937, let alone that there was any market in that year for the entire outstanding shares of preferred stock.
As pointed out by Judge Patterson in the Orpheum bankruptcy proceedings, 20 Fed. Supp. 101, not once did these stockholders, of which petitioner was one, prove their right to share in any of the bankrupts estate. The Congressional plan has always been to require that losses be taken when sustained and the statute contemplates that shares of stock in a coporation become worthless at the same time for all stockholders.
Van Fossan and Disney agree with this dissent.