(dissenting).
For the reasons I have stated in Gilbert v. Commissioner, 2 Cir., 248 F.2d 399, I do not agree with the Tax Court’s finding that “the profit and loss arrangements entered into between the petitioner and Oxford were not bona fide.” This the court followed by saying that the “attempt to claim the corporation’s losses as his own was a plan for improper tax avoidance.” These findings do not seem to me to dispose of the appeal. I would, therefore, also remand the case, although for the same finding, mutatis mutandis, that I have suggested in the Gilbert case.
Although it is. hard to believe that the Tax Court will make any finding other than that the petitioners did not suppose . that the form they chose appreciably affected any beneficial interests that they had in the venture, other than taxwisé; .nevertheless it is that court and not we .that must make-the finding, if the peti-tioners so desire.