*2557 Option warrants, giving the holder the right to subscribe to common stock, which were acquired in 1911, expired in 1921. Held that the basis for determining the amount of loss in 1921 is cost or March 1, 1913, value, whichever is lower. The evidence is insufficient to establish cost.
*994 The respondent determined a deficiency in income tax against the petitioner in the amount of $3,646.66 for the year 1921. Of this amount petitioner concedes $297.17 and contests the balance of *995 $3,349.49. The issue is the amount of loss sustained in 1921 by reason of the expiration of stock-purchase warrants which had been acquired in 1911.
FINDINGS OF FACT.
Petitioner, in 1911, through the exercise of rights to stockholders, purchased 1,738 blocks of securities of the American Power & Light Co. at $100 per block. Each block consisted of one $100 par value, 10-year, 6 per cent note, dated August 1, 1911, and one detachable and transferable option warrant entitling the holder at any time within 10 years from*2558 August 1, 1911, to purchase one share of common stock of the company at par, either for cash or for an equal amount in par value of the notes.
Of the 1,738 blocks of securities purchased by petitioner, 1,557 were for himself, one was for his son Sidney A. Mitchell, and the remaining 180 were purchased for C. M. Maxwell, a brother-in-law and cousin. In September, 1911, and January, 1912, petitioner gave to his son the one block purchased for the latter, and transferred to C. M. Maxwell at the subscription price of $100 per block the securities purchased for him.
In December, 1911, petitioner transferred to W. C. Lang 150 warrants without notes at a price of $6 each, and in January, 1912, he transferred to B. L. Allen 20 warrants at a price of $5 each. Lang was an employee of a corporation of which petitioner was president, and Allen was an old friend and advisor of petitioner.
During September and November, 1911, and January, 1912, petitioner disposed of all the notes separately from the warrants, $500 par value being transferred to H. M. Francis at 95 per cent of their par value, ant the remainder transferred to the Electric Bond & Share Co. at from 94.7 to 96.5 per cent*2559 of their par value.
None of the transfers above mentioned from the petitioner to other individuals were made for the purpose of realizing a profit, but were made in line with petitioner's policy of aiding friends and relatives and worthy employees of the corporation in which he was an officer. Petitioner's aim was to sell the notes at the highest price he could realize and then to dispose of the warrants at amounts sufficient to make up the difference between such selling price and the cost of the blocks.
During the years 1911 and 1912 the stock, notes, and warrants of the American Power & Light Co. were not listed on any stock exchange. In the last 6 months of the year 1911 bid prices on the common stock ranged from a low of 72 to a high of 76 1/2 and asked prices ranged from a low of 74 to a high of 80.
March 1, 1913, quotations on the option warrants were 13 bid and 15 asked, and on the 6 per cent notes, 99 bid and 100 asked.
*996 The respondent in determining the deficiency for 1921 allowed to the petitioner a loss on account of the expiration of the option warrants, the amount of the loss being computed on the basis of a cost of $5.94 for each warrant.
*2560 OPINION.
ARUNDELL: The respondent in this case has allowed the petitioner a loss by reason of the expiration in 1921 of the option warrants which permitted the holder to purchase stock of the American Power & Light Co. There is no dispute as to the fact that petitioner actually sustained a loss by the expiration of the warrants. The dispute is as to the amount of the loss. Petitioner alleges that the respondent erroneously based the amount of loss on a cost of $5.94 for each warrant, whereas he should have used as a basis the March 1, 1913, value or, in the alternative, a cost of at least $13.
In our opinion the principle laid down in , and , is applicable to this case and the basic figure for measuring the amount of the loss is either cost or March 1, 1913, value, whichever is lower. The petitioner argues against the application of the principle here, saying that it only applies to the "sale or other disposition" of property under section 202, whereas this is a case of a loss under section 214, under which section March 1, 1913, value is the basis. *2561 Losses are allowed under subdivisions (4), (5), and (6) of section 214(a). Under subdivision (6), "losses arising from destruction of or damage to property" acquired prior to March 1, 1913, are to be determined "upon the basis of its fair market price or value as of March 1, 1913." We think it quite evident that the loss sustained in this case does not arise from "destruction of or damage to" the property. The other loss provisions, subdivisions (4) and (5), do not contain in themselves any basis for determining the amount of loss deductible under them. Under the corresponding provisions of the Revenue Act of 1918 we have held the limitation announced in the Flannery and Ludington decisions to be applicable to cases analagous to the one in hand. See ; ; and , involving the loss of liquor licenses as a result of prohibition legislation; , where capital stock became worthless in the taxable year. While those cases arose under the 1918 Act, the same principle applies under the Act*2562 of 1921. .
In view of what we have said it is not necessary to determine whether the expiration of the warrants constituted a "disposition" so as to bring the case within section 202 of the Revenue Act of 1921, but it may not be amiss to set down our opinion of the matter. We think that when petitioner's warrants expired there was a "disposition" *997 of them within the meaning of the statute. The day before they expired he had property; the day after he had none. In the interim some disposition had been made of them. The application of the statute is not by its terms limited to active or affirmative dispositions of property, but may equally well apply to cases where the disposition results from inaction.
The argument of petitioner that the change in the basis for determining the amount of losses made in the 1924 Act is an implication of an intent to change the 1921 Act, is disposed of in .
The next question is the cost to the petitioner of the warrants. Cost was found by the respondent to be $5,94 each and is claimed by petitioner to be at least $13. On*2563 this there is no direct evidence. The only sales of warrants alone of which we have evidence are those made by petitioner himself in 1911 and 1912 in two lots, one at $5 and the other at $6 for each warrant. Petitioner's testimony being that in these instances he did not intend to make a profit, these sales may be taken as some evidence of cost, although we agree with petitioner's argument that it is far from conclusive. Petitioner's claim is that the March 1, 1913, quotations of 13 bid and 15 asked, being the first available after acquisition, should be used as the basis for apportioning cost between the notes and the warrants. With this we can not agree. Much may have happened between the purchase date in 1911 and March 1, 1913, to affect the value of these securities and as to this there is no evidence. In view of the lack of evidence to establish cost we are unable to find that the respondent erred in his determination.
Decision will be entered for the respondent.