(dissenting).
The only issue presented on this appeal is whether the appellant sustained a loss in 1962 deductible from ordinary income on its income tax under either § 165(a) or § 167 of the Internal Revenue Code. The holding of the majority opinion is that it did not. I respectfully dissent.
While the paintings were not sold until 1964, in my opinion the loss was sustained when the taxpayer’s unique restaurant business on Randolph Street, Chicago, was permanently closed by virtue of condemnation.
Looking at Treasury Regulation § 1.-165-2(a) it appears to me that a “loss [was] incurred in a business and arising from the sudden termination of the usefulness in such business of nondepreciable property, in a case where such business is discontinued [and] where such property is permanently discarded from use therein . . . . ’’ In such a case the Regulation provides that the loss shall be allowed as a deduction under § 165(a) for the taxable year in which the loss was actually sustained.
Under Treasury Regulation § 1.165-1(b), the loss was evidenced by the closed and completed transaction of the restaurant doors being permanently and irrevocably closed by the identifiable event of the condemnation. I do not conceive there could have been a viable contrary argument if the sale of the paintings had occurred immediately; however, the hope, and it was at most only that, that this traditional Loop restaurant, almost an institution, might once again engage in business was foreclosed by economic facts of life, all of which were in existence and applicable in 1962, irrespective of whether completely recognized by that human characteristic which “springs eternal.” The death knell was sounded in 1962 and any subsequent tolling was merely a corroborative requiem.
Although I do not conceive that it was necessary for the ultimate holding in the majority opinion, a part of that opinion is devoted to the necessity for allocating some part of the total dollar figures involved between paintings as art objects and paintings as an essential part of the decor of the restaurant. I did not understand that the Government made any such contention and certainly the taxpayer did not. In candor, I do not follow the line of reasoning in this part of the majority opinion. Any nondepreciable property utilized exclusively in connection with a business may have separate intrinsic value. But if X dollars are paid for such property on acquisition, that would appear to me to be the cost basis under the Code, and if at the time of the loss, here assumed arguendo, the fair market value is X-Y dollars, I fail to conceive why the loss (Y dollars) was not incurred in a business, where the property was used exclusively in the business, irrespective of an identifiable, separate intrinsic value of the property.
The majority opinion adverts to an underlying dispute as to whether the paintings were business or capital assets. The differentiation has a substantial tax impact. I entertain a sneaking suspicion that if the paintings had sold for a substantially greater sum than their cost the parties would have been equally vigorous in their disagreement, but supporting the opposite views to those presently entertained. Such seems to be the course of tax litigation.
*171Being of the opinion that the loss was final and irrevocable in 1962, 5 Mertens, Law of Federal Income Taxation § 28.-15,1 have recorded this dissent.