
    Harley Alexander, Petitioner, v. Commissioner of Internal Revenue, Respondent. Maude Alexander, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket Nos. 44169, 44170.
    Filed May 17, 1954.
    
      Arthur Glover, Esq., for the petitioners.
    
      Jaekson L. Bailey, Esq., and R. 8. Leigh, Esq., for the respondent.
   OPINION.

We hold against petitioners on this issue. They have failed to prove that the cows were held for breeding or dairy purposes and the length of time held. We find no basis for finding that petitioners were entitled to capital gains treatment under section 117 (j) for the cows sold in 1945.

Reviewed by the Court.

Decision will he entered for the respondent.

Van Fossan, Turner, Harron, and Raum, concur in the result.

Arundell, J.,

dissenting: I would not apply the doctrine of equitable estoppel in this case. In an earlier opinion we held that a valid partnership did not exist during the years 1942,1943, and 1944 and the Court of Appeals affirmed on this point. The present proceeding raises the question whether or not a valid partnership existed in 1945. It is a different cause of action and the facts in the instant cases, while similar, are not identical with the facts before the Court in the prior trial. I think, in the circumstances, we should examine the facts and the record and from them determine whether a valid partnership existed in 1945.

Kern and Johnson, JJ., agree with this dissent.  