Fisher v. Commissioner

*969OPINION.

The dispute between the parties as to the money withdrawn by the petitioner from the Continental Realty Co. during 1920 is whether, to the extent of the earnings of the company, the withdrawals constitute dividends or the repayment of loans. If the former, they are taxable to the petitioner; if the latter, they are not. The advances made by the petitioner to the company were clearly loans. They were so regarded by him and were carried in the company’s accounts as separate and distinct from its capital account. When the petitioner withdrew money in 1920 he considered the withdrawals as partial repayments of his loans. The company never paid any dividends and we fail to see how the money withdrawn by the petitioner could be regarded as anything other than the repayment of petitioner’s loans. On this point we must find for the petitioner. Appeal of Benjamm J. Schiff, 3 B. T. A. 640.

The amount of $25,900 claimed as_ a loss for the year 1920 is made up of three items, viz., Purdy Boat Co. stock, $2,600; Purdy Boat Co. note, $21,000; E. D. and J. D. Purdy note, $2,300. The respondent admits that the petitioner sustained a loss on the Purdy transaction *970but denies that it was a 1920 loss and holds that the loss was sustained in 1921. We agree with the respondent to the extent of holding that no deductible loss was sustained in 1920. We might rest our decision on any one of several grounds. First, the evidence is not clear as to when the Purdy Company transferred its assets to the Alton Company. The record leaves us in doubt as to whether it was in 1920 or 1921. In the second place a mere showing that the Purdy Company transferred its assets to another is not sufficient to support a claim for a loss on its stock and notes and certainly it is not evidence on which we can allow a claim for loss on the notes of the Purdys as individuals. Finally, we do not know by what right the Alton Company took over the assets and whether the petitioner was precluded thereby from his claim, as a creditor, against them.

■Judgment will be entered on 15 days’ notice, imder Rule 50.