dissenting.
Appellate courts frequently encounter the argument that a party “cannot have it both ways.” Whatever its legal force, that contention accurately describes the government’s goal in this case.
The Government of the Virgin Islands has established a lottery to raise money, and it solicits dealers to sell tickets. As a proprietor, the Government has an obvious interest in selling as many tickets as possible to increase revenue and in keeping administrative expenses as low as possible.
Selling tickets by the sheet to dealers with no returns permitted is an efficient way of reducing overhead expenses. Allowing ticket sales even after the drawings have begun also increases the volume of sales. These procedures, not objectionable in themselves, become unfair under the interpretation of the tax law urged by the government.
Routinely, merchants may deduct the cost of goods that they buy for resale. But the dealer whom the government has solicited to act as sales agent for the lottery is treated as a gambler and denied the same treatment as the businessman who sells other commodities.
The district court properly relied on the obvious fact that the dealer is primarily a businessman and is treated as such by the government in his proprietary capacity. To the extent that the dealer retains unsold tickets, he becomes a compelled or involuntary gambler. No matter that this “gambler” had not the slightest desire to participate in the lottery but simply could not sell the tickets; the government in its taxing *397capacity refuses to recognize that the tickets constitute stock-in-trade and therefore are necessary business expenses.
I realize that fairness alone does not justify overriding the terms of a tax statute. But even under the statutory language, the judgment of the district court was correct.
Section 165, on which the government relies, demonstrates an uneasy compromise between a moralistic attempt to discourage gambling and a highly pragmatic approach to taxing its proceeds. Thus, in the case of a gambler, whether professional or amateur, losses are deductible only from winnings. The authors of the Internal Revenue Code realized that the odds tipped in favor of losses outnumbering winnings. Consequently, the statutory scheme reveals a determination not to allow the inevitable net gambling loss to reduce ordinary income subject to tax.
The theory behind the Internal Revenue Code’s treatment of gambling losses and income is inconsistent with Virgin Islands law, which provides that lottery winnings are not taxable in any event. 32 V.I.C. § 261. Because of this prpvision, a person who wins the Virgin Islands lottery may well have no source from which to deduct the cost of losing tickets.
Thus, it is illusory for the majority to suggest that under § 165(d) the dealer’s losses in this case will simply receive “less favorable treatment” than under § 162. To the extent he confines his “gambling” to the forced participation in the lottery, the dealer will never benefit from any deduction for the cost of unsold tickets. By contrast, those who gamble by choice in a variety of forms may be able to deduct lottery losses from winnings at other gaming ventures.
The Supreme Court took a very realistic view of a professional gambler’s operation in Commissioner v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559 (1958). In that case, the Court treated an illegal gambling enterprise as “a business for federal tax purposes.” Hence, the gambler could deduct rent and wages as “ordinary and necessary expenses in the accepted meanings of the words.” Id. at 29, 78 S.Ct. at 514.
The taxpayer in Sullivan gambled by choice and not by governmental edict, as is the case here. I agree with the district court that the lottery dealer is a gambler “only incidentally and because the government forces him into that role. He is first and foremost a businessman.” Therefore, no reason exists for treating him less favorably than either Sullivan or the Code requires.
The government is at cross purposes with itself. The taxing authorities’ position that is sustained today will discourage dealers from buying more tickets than they can surely sell. On reflection, it may be appreciated that selling the tickets at a discount as the drawing date approaches would be counterproductive to increasing sales. Thus, the net effect of the government’s tax policy will dampen the enthusiasm of dealers to increase their sales efforts. Although the taxing arm prevails today, overall revenues may diminish unless the government reforms its policies.
I would affirm the judgment of the district court.