
    The People of the State of New York ex rel. Edward Klauber, Respondent, v. James A. Wendell, as Comptroller of the State of New York, Appellant.
    
      Tax — personal income tax — construction of section 353 of Tax Law — applicable only to cases where sale or other transaction results in actual gain or profit.
    
    
      People ex rel. Klauber v. Wendell, 196 App. Div. 827, affirmed,
    (Argued November 22, 1921;
    decided December 6, 1921.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 5, 1921, which reversed on certiorari a determination of the state comptroller levying an additional income tax and assessing a penalty against the relator based upon his income for the year 1919. The proper construction of section 353 of article 16 of the Tax Law was involved. In the year 1919 the relator sold certain securities for less than the price at which he had purchased them prior to that year but in excess of their market value on January first of that year. The comptroller included in the gross income of the relator as defined by section 359 of the Tax Law the difference between the market value of such securities on January 1, 1919, and their selling price and assessed the tax against the relator accordingly. The Appellate Division held “ that full effect and meaning may be given to section 353 of the Tax Law by applying it only to those cases where a sale or other transaction results in an actual gain or profit.”
    
      
      Charles D. Newton, Attorney-General (James S. Y. Ivins of counsel), for appellant.
    
      Arthur B. Hyman for respondent.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane and Andrews, JJ. Dissent: Hogan and CarDOZO, JJ.  