*920OPINION.
Love:The petitioners contend that the balance in the checking account of the petitioner, J. C. Erwin, having been on December 30, 1920, greater than the amount of the note, the bank could and should have charged the note against that account on that day as it had theretofore been instructed to do and for’that reason it is urged that payment to the bank was made and the resulting loss sustained in the year 1920. The bank having been given authority, instructions and directions to charge the note against the checking account when that account became large enough to cover the note, the petitioners had done all that was necessary on their part and the failure of the ’ bank to make the book entry can not delay the right to take the deductions.
The question presented is one of law as there is no disagreement as to the facts. It is not disputed that a deductible loss was sustained. The year in which such loss was sustained is, however, in dispute. The question we are called upon to decide is whether J. C. Erwin, by reason of the fact that he instructed the bank to charge the demand note for $2,631.30 against his checking account when it became sufficient to liquidate the note and which was sufficient to do so on December 30, 1920, made payment to the bank and sustained, by reason of such payment, the loss in 1920 notwithstanding the fact that the bank did not charge the note against his account until January 18, 1921.
In the case at bar the petitioner had given instructions and those instructions were intended and so understood by all parties to the transaction, to be in lieu of a check, dated on the date when the account became sufficient to pay the note; and was, in effect, a check drawn against that account, as of that date, in payment of that note.
Under the facts of this case, we hold that payment of the note was made and the loss sustained in 1920.
Judgment of no deficiency will he entered for the petitioners.
Considered by Smith and Littleton.