(dissenting).
Since deductions for bad debt losses are governed by the special provisions of § 23 (k) of the Code, such losses cannot be deducted under the ordinary loss provisions of § 23(e). When a taxpayer’s loss results from the total or partial worthlessness of a debt owing to him, if a deduction cannot be taken under the provisions of § 23 (k), it cannot be taken at all. That is what was decided in Spring City Foundry Co. v. C. I. R., 1934, 292 U.S. 182, 54 S.Ct. 644, 78 L.Ed. 1200. “The making of the specific provision as to debts indicates that these were to be considered as a special class and that losses on debts were not to be regarded as falling under the * * * general provision.” 292 U.S. at page 189, 54 S.Ct. at page 647. It is worth noting that in the Spring City case the loss in question was held not to be deductible under the then applicable bad debt provisions of the statute, but was nonetheless held excluded from consideration under - the ordinary loss provisions, since the loss had arisen from a debt.
If, then, the petitioner’s loss in this case arose from a debt owing to him, it may not be considered under the ordinary loss provisions of § 23(e) of the Code. If it did not so arise, it may be so considered. The question therefore is whether or not the petitioner’s loss arose from a debt.
As recognized in the majority opinion, it is hornbook law that when a guarantor is compelled to pay the principal creditor, he becomes by operation of law subrogated as a creditor of the principal debtor. In the nature of things, the debt which the guarantor thus acquires is usually worthless at the time of its *571acquisition. Yet, until the Pollak and Allen cases, and today’s decision in this case, the debt so arising has consistently been considered nonetheless deductible as a bad debt, although it became worthless immediately upon its ripening from a secondary obligation into a debt. Hamlen v. Welch, 1 Cir., 1940, 116 F.2d 413; Shiman v. C. I. R., 2 Cir., 1932, 60 F.2d 65; Whitcher v. Welch, D.C.Mass., 1938, 22 F.Supp. 763; Kate Baker Sherman, 1952, 18 T.C. 746; Harold Guyon Trimble, 1946, 6 T.C. 1231; Warren Leslie, Sr., 1946, 6 T.C. 488, 494; Alice DuPont Ortiz, 1940, 42 B.T.A. 173, 186-188, reversed sub nom. Helvering v. Wilmington Trust Co., 3 Cir., 1941, 124 F.2d 156, reversed (without discussion on this point) 1942, 316 U.S. 164, 62 S.Ct. 984, 86 L.Ed. 1352; D. W. Pierce, 1940, 41 B.T.A. 1261; H. Rodney Sharp, 1938, 38 B.T.A. 166; E. A. Roberts, 1937, 36 B.T.A. 549; Daniel Gimbel, 1937, 36 B.T.A. 539.1
Eckert v. Burnet, 1931, 283 U.S. 140, 51 S.Ct. 373, 75 L.Ed. 911, is not to the contrary. The decision in that case, as explained and followed in Helvering v. Price, 1940, 309 U.S. 409, 60 S.Ct. 673, 84 L.Ed. 836, was that the taxpayer who makes his return on the basis of cash receipts and cash disbursements must suffer a cash detriment before taking a deduction. In the Eckert case, the taxpayer substituted his own note for the corporation’s obligation upon which he had been an endorser. The Court held that until he paid the note, he could take no deduction at all.2
The dictum in the Eckert case that a debt worthless when acquired cannot later become worthless originated in the Court of Appeals opinion in that case, 42 F.2d 158, as was pointed out by Judge Learned Hand in Shiman v. C. I. R., supra. Thus, the court in which that dictum originated, shortly thereafter refused to apply it to a guaranty situation, and so consistently have other courts, until Pollak v. C. I. R.; Edwards v. Allen, and this case. See Hamlen v. Welch; Whitcher v. Welch; Kate Baker Sherman; Harold Guyon Trimble; Warren Leslie, Sr.; Alice DuPont Ortiz; D. W. Pierce; H. Rodney Sharp; E. A. Roberts; Daniel Gimbel, all cited above.
The statement that a debt worthless when acquired cannot later become worthless has an attractive ring to it, which no doubt accounts for its frequent repetition. Yet it is only a rather inaccurate way of saying that a transaction which is donative from the outset, even though in form a loan or a guaranty, cannot be the basis of a deduction, because in reality the transaction from the beginning was a gift or a contribution to capital. E.g. Hoyt v. C. I. R., 2 Cir., 1944, 145 F.2d 634. That issue is not involved in the present case.
For the reasons stated, I think the Tax Court was correct in finding that the loss which the petitioner sustained in the present case was a bad debt loss,3 and *572that its finding that the debt was a non-business debt was not erroneous. Commissioner of Internal Revenue v. Smith, 2 Cir., 1953, 203 F.2d 310. Accordingly, I think the Tax Court’s decision permitting the petitioner a nonbusiness bad debt deduction should be affirmed.4
If what has been said seems overly technical, it may be well to point out some important realities. At the time petitioner’s corporation was organized it had commitments requiring it to expend $85,-000 during its first three years of existence. Yet its capital consisted of only $5,000. Obviously more risk capital was required.
Had the petitioner made the necessary additional investment in the conventional form of subscribing for stock, his loss upon the failure of the corporation would have been a capital loss, § 23(g) (2), I.R.C. Had he made the investment in the form of a loan to the corporation evidenced by an instrument bearing interest coupons, his loss would likewise have been a capital loss, § 23 (k) (2), I.R.C. Had he made the additional investment in the form of an ordinary loan to the corporation, his loss would likewise have been a capital loss, § 23 (k) (4) I.R.C., Commissioner of Internal Revenue v. Smith, supra.
Because the petitioner happened instead to risk his money by guaranteeing the corporation’s bank loans, the court now holds that the petitioner may take an ordinary loss, deductible in full from his ordinary income. Yet from the petitioner’s viewpoint, the situation would have been precisely the same had he himself borrowed the money and then lent it to the corporation. It therefore seems to me that the result reached by the court in this case is significantly unrealistic.
From now on an investor in this Circuit need not be content with a capital loss if he loses his risk capital. If only he can make his investment in the form of a guaranty, his loss will be deductible in full from his ordinary income if the venture is unsuccessful.5 Conversely, the taxpayer who becomes a guarantor of a corporation’s indebtedness for a reason other than to make a profit (and not in his trade or business), will be able to take no deduction at all if he pays on the guaranty and can collect nothing from the original debtor. That follows from the reasoning of today’s decision that the debt to which he is subrogated is not deductible, because it did not “become worthless” but was “worthless when acquired.”
In regretfully parting company with my respected colleagues, I realize that I part company with our brethren of the Third and Fifth Circuits as well. Pollak v. C. I. R., supra; Edwards v. Allen, supra. I do so because the result reached by them seems to me neither permissible under the law nor equitable upon the facts, and at such length because this rather important question of tax law is at the moment in a critical stage of its development.
. See Mertens Law of Federal Income Taxation (1953 Revision), Vol. 5, Par. 30.11, page 412, where it is stated, in part, as follows: “A voluntary loan which gives rise to a debt which is worthless when created or acquired — in the sense that it has no value — may not then or subsequently be deducted as a bad debt. Advances under such circumstances may generally be characterized as either gifts or contributions to capital, but not debts. # * $
“Where the debt is created involuntarily 'the foregoing rules do not apply and the taxpayer may be allowed a bad debt deduction upon the worthlessness of his claim. This principle finds illustration in the cases of an endorsement or the assumption of the obligation by a surety. In such casos the debt arises only when the endorser or surety pays, and he pays only if the prior obligor is unable to do so. In such cases a bad debt deduction may be allowed, but only if the principal debtor is still in existence.”
. The taxpayer had argued that he was entitled to either a bad debt deduction or an ordinary loss deduction. See Eckert opinion in Court of Appeals, 2 Cir., 1930, 42 F.2d 158; Helvering v. Price, supra.
. The petitioner himself treated the loss as one arising from a debt. After paying on his guaranty he notified the corporate debtor in writing of his claim against it. Subsequently, in his tax return he claimed the deduction as a business bad debt under § 23 (k) (1) of the Code.
. Fox v. C. I. R., 2 Cir., 1951, 190 F.2d 101, is not to the contrary. In that case the debtor had been dead and his insolvent estate long closed when the guarantor paid. The guarantor was allowed an ordinary loss. The decision is justified upon the premise that there can be no debt when there is no debtor. The court was careful to point out that its decision “does no violence to the theory that a debt might arise upon payment by a guarantor where the principal debtor remains still in existence.” Where the principal debtor is a corporation, and its “existence” within the control of the guarantor, such a result would seem more questionable. Cf. Abraham Greenspon, 1947, 8 T.C. 431.
. Before the addition of subsection 23 (k) (4) a guarantor did receive an ordinary loss deduction in a situation like the present one. The House Ways and Means Committee stated the new subsection was “designed to remove existing inequities.” H.Rep. No. 2333, 77th Cong., 1st Sess, (1942-2 Cum.Bull. 372, 408).