*407OPINION.
Arundell:Petitioners argue that the total cost of canceling the leases was not deductible in the year of cancellation but should be spread over the 72%-month period during which the Pierce contract was effective. Similar treatment is also urged for the unamortized cost of certain improvements placed upon the relinquished leaseholds by petitioners. Respondent has treated the entire cost of terminating the leases as an expense deductible in 1935 and has accorded a similar treatment to the unamortized cost of the improvements.
This action appears correct. It has long been a rule that the consideration paid for the termination or cancellation of a lease by the lessee is deductible in full by him as an ordinary and necessary expense for the year in which the expense is paid or incurred. Sec. 23 (a), Revenue Act of 1934; Denholm & McKay Co., 2 B. T. A. 444; Goerke Co., 7 B. T. A. 860; cf. Frank & Seder Co. v. Commissioner, 44 Fed. (2d) 147. With the relinquishment of the leaseholds a loss had been sustained of the unamortized cost of the improvements and, as the statute is specific that losses must be taken in the year sustained, it follows that the proper period to reflect this deduction was the year 1935.
Petitioners contend that if the firm must deduct in the year 1935 the entire cost, of terminating the leases, as we have just held, then gain occasioned by the execution of the Pierce contract was also ac-cruable as income in that year. They argue that any other treatment would distort their income, since the termination of the leases and the execution of the contract were both parts of an integral scheme which culminated in the complete liquidation of the firm. They reason that under the Pierce contract the firm received property worth :$500,000 in exchange for the transfer of its customers’ accounts to Pierce, and that such exchange was one upon which gain was recognized under section 112 (a) of the Revenue Act of 1934. Petitioners maintain that the firm’s basis for the contract was cost and that cost in this case was the fair market value of the contract at the time of ■execution, or $500,000.
Petitioners’ argument concerning respondent’s inclusion in the firm’s gross income for 1936 of the $78,706.93 paid to the firm by Pierce is necessarily premised upon their claim that the firm realized .gain upon execution of the Pierce contract in 1935. They assert that the firm should be allowed to amortize the amount of its basis (which they claim to be $500,000) over the period of the contract, or that the payments received by the firm from Pierce should be excluded *408from gross income as a return of capital which does not equal the firm’s basis for the contract. It should be mentioned at this point that petitioners did not return this alleged profit in their tax returns for the year 1935.
We are of the opinion that petitioners must fail because the premise upon which they have based their claim is false. Petitioners have not shown that the firm realized gain upon execution of the contract. All that the firm received upon execution of the contract was the promise of Pierce to make certain payments in the future, conditioned upon certain contingencies. The firm gave nothing in exchange for Pierce’s promise other than its promises to urge its former clients to transfer their accounts to Pierce and to agree to remain a member of the various exchanges and the promises of its partners to refrain from entering the brokerage business using the name of Cassatt. We disregarded the three month-to-month leases which may have passed to Pierce, as they apparently had only a nominal value. We do not understand that an exchange of promises to perform acts in the future is an exchange of property giving rise to gain or loss. The firm’s accounts were not property which could be transferred at will.
Furthermore, even if the firm might be said to have transferred “property” in the nature of good will, we think that the transaction was not a closed one upon which gain might be realized. The contract was of a speculative nature and the promises by either side were not of the sort which can be said to have a fair market value. As the Circuit Court of Appeals for the Second Circuit has said concerning a promise to do something in the future, “it is absurd to speak of a promise to pay a sum in the future as having a ‘market value,’ fair or unfair. Such rights are sold, if at all, only by seeking out a purchaser and higgling with him on the basis of the particular transaction. Even if we could treat the case as an exchange of property, the profit would be realized only when the promise was performed.” Bedell v. Commissioner, 30 Fed. (2d) 622, 624. The receipt of a percentage of the commissions depended upon the customers’ accounts being transferred to Pierce, the acceptance of those accounts by Pierce, the customers continuing to transact business with Pierce after transfer of the accounts, the firm’s refraining from reentering the brokerage business, and Pierce’s continuance in the brokerage business. With the obligations conditional and indefinite to the extent here present it is our opinion that the firm’s rights under the Pierce contract had no fair market value.
No testimony as such was offered on the question of the value of the Pierce contract. _The parties stipulated, however, that certain individuals, if called to the stand, would have testified that the contract had a market value of approximately half a million dollars *409to the firm. We can. not accept this stipulation as establishing that such a conditional, indefinite, and contingent obligation had a fair market value. The actual recovery under the contract was $275,-424.66, a sum very much less than the claimed fair market value. Nor does the fact that a bank might have lent funds on the security of the contract necessarily mean any more than that because of the contract the firm was a good moral risk to repay the moneys loaned. The contract with the bankers made the general partners of the Cassatt Co. liable for the repayment of the $160,000 loan.
The considerations already discussed also prevent the accrual of the sums the firm hoped to realize under the Pierce contract, as there is lacking the definiteness of liability to pay upon which the application of the accrual system of accounting is based. As stated in. John Graf Co., 39 B. T. A. 379, 384,
* * * The underlying thought is that pecuniary obligations payable to. the taxpayer are considered discharged when incurred, United States v. American Can Co., 280 U. S. 412. These must be unconditional obligations, Lucas¡ v. North Texas Lumber Co., 281 U. S. 11; and they must be definitely payable,. American National Co. v. United States, 274 U. S. 99. * * *
The complete lack of definiteness in Pierce’s obligations wouldi require the treatment laid down by the Supreme Court in Burnet v. Logan, 283 U. S. 404, in which it was held that income was not realized at the time the transaction was entered into, but after the recovery of the taxpayer’s basis, the profit, if any, being taxable when and as received. This holding has been followed consistently by the courts and the Board. Edwards Drilling Co.., 35 B. T. A.. 341; affd., 95 Fed. (2d) 719; Willis B. Dearing, 36 B. T. A. 843; affd., 102 Fed. (2d) 91. The case of Robert J. Boudreau, 45 B. T. A. 390,. certainly may not be taken as an authority contrary to Burnet v. Logan, supra, and must rest on its own particular facts. It follows-that the amount which the firm received in the taxable year under-the Pierce contract must be accounted for as of that time and, as. there is no cost basis shown, the total receipts must be included in. the firm’s gross income.
For the several reasons set forth above we are of the opinion the-respondent should be sustained on this point.
We are not unmindful of the fact that some hardship arises from, petitioners’ inability to offset the cost of canceling the leaseholds against the income received under the Pierce contract. But to use-this circumstance as a ground for announcing as a legal proposition, that income is presently realized upon the entering into of a contract, of the nature here involved would be indeed unfortunate. In this, very case, if petitioners’ theory were adopted they would have been, required to pay a tax' baséd on the firm’s receipt of $500,000 gain,, whereas the firm fin ally received only $275,424.66. Our fiscal system, *410is geared upon a yearly basis and at times hardships arise by reason thereof. Nevertheless, what we are .dealing with is a law which has for its purpose the raising of revenue to run the Government and set periods are necessary for the fixing of each taxpayer’s obligations.
Reviewed by the Board.
Decisions will be entered under Bule 50.