
    Mrs. Niels (Mellie) Esperson, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 7376.
    Promulgated September 27, 1928.
    
      B. F. Louis, Esq., for the petitioner.
    
      Bruce A. Low, Esq., for the respondent.
   OPINION.

Littleton:

The first question involved in this case is whether in October, 1921, Niels Esperson made a bona fide sale of 8,100 shares of Invincible Oil Corporation stock. This issue was likewise before us today on the basis of the same facts, in the case of Mrs. Niels (Mellie) Esperson, Executrix, Estate of Niels Esperson, 13 B. T. A. 596, wherein we held that the sale was not bona fide and, therefore, a loss on account thereof could not be allowed. That decision is, of course, controlling in the case at bar.

But we are not convinced that when this purported sale was being carried out by Niels Esperson, the knowledge, acquiescence and part played by the petitioner, his wife, were sufficient to justify the conclusion of fraud on her part and, accordingly, the motion of the respondent that the fraud penalty provided in section 250 (b), Revenue Act of 1921, be asserted, is denied.

Reviewed by the Board.

Judgment will be entered for the respondent.

Love dissents.  