(concurring in result).
I concur in the result. The discussion of the method of computing depreciation of the machinery is upon a moot question and entirely unnecessary.
The petition to the Tax Court was for a redetermination of a claimed deficiency determined by the Commissioner, arising from the Commissioner’s disallowance of a claimed deduction for the value of abandoned machinery. In such a proceeding, before the question of the validity of tax*960payer’s method of depreciation can arise, the burden of proof is upon the taxpayer to show (1)' that the equipment was in fact abandoned and (2) its value after abandonment. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348.
The taxpayer showed the abandonment of the oil well at which the machinery was installed but not the abandonment of the equipment or its value when the well was abandoned. The Tax Court so found, as follows:
“ * * * The stipulation shows that the wells involved were abandoned, but there is no evidence showing that the equipment thereon was also abandoned because it had lost its usefulness or that the abandonment of the wells caused depreciation of the equipment in excess of that normally sustained. Except that the stipulation shows that petitioner ‘wrote off’ the amounts of $5,044.13 and $35,026.52 ‘as losses consequent to the abandonment of its’ wells and claimed losses in its income tax returns in such amounts, there is no evidence that the equipment was actually retired or abandoned because it had lost its economic usefulness and had no more than scrap or salvage value or no value.”
The Commissioner’s brief and argument relied upon this failure to establish any claim at all, the necessary foundation of any discussion of whether taxpayer chose a proper method of depreciation. The majority opinion states this finding of the Tax Court in its footnote 4, but ignores the position of the Commissioner stated in his brief and his argument, as follows:
“Moreover, as the Tax Court recognized, apart from any other considerations, taxpayer’s claimed deduction must be denied here, since there is absolutely nothing in the record to indicate that the well equipment in question had actually become worthless during the taxable years. Since losses are allowable only on closed and completed transactions, no deduction for a claimed loss will be permitted unless it is clear that the property in question has in fact become worthless during the year the loss is claimed. Lucas v. American Code Co., 280 U.S. 445, 50 S.Ct. 202, 74 L.Ed. 538, 67 A.L.R. 1010; United States v. S. S. White Dental Co., 274 U.S. 398, 47 S.Ct. 598, 71 L.Ed. 1120; Lambert v. Commissioner of Internal Revenue, 10 Cir., 108 F.2d 624; De Loss v. Commissioner of Internal Revenue, 2 Cir., 28 F.2d 803, certiorari denied, 279 U.S. 840, 49 S.Ct. 254, 73 L.Ed. 987. Treasury Regulations 94, Article 23 (e)-3.”
In the absence of any proof of these necessary underlying facts, the decision of the majority opinion on the claimed deduction is mere dictum.