
    SMITH v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5649.
    Circuit Court of Appeals, Third Circuit.
    June 18, 1935.
    Percy W. Phillips, of Washington, D. C. (Brewster, Ivins & Phillips, of Washington, D. C., of counsel), for petitioner.
    John MacC. Hudson and J. Louis Monarch, Sp. Assts. to Atty. Gen., and Frank J. Wideman, Asst. Atty. Gen., for respondent.
    Before BUFFINGTON and THOMPSON, Circuit Judges, and FORMAN, District Judge.
   BUFFINGTON, Circuit Judge.

The question involved in this case, as stated in the government’s brief, is, “Were petitioner’s activities in connection with training and racing horses a trade or business or a transaction entered into for profit, so that the excess of expenditures over receipts constitutes a deductible loss?”

The question of losses incurred by men engaged in the training and racing of horses has been before this court in Commissioner v. Widener, 33 F.(2d) 833, and Whitney v. Commissioner, 73 F.(2d) 589, cases which the government has not sought to question by reviews. There is no dispute about the facts in the present case, and we find nothing, except the size of the business, which differentiates the present taxpayer’s activities from those of Messrs. Whitney and Widener in the two cases cited.

Regarding those cases as evidencing the settled holdings of this court, we are of opinion the Tax Board erred in holding that the losses incurred in taxpayer’s training and racing business were not deductible.

Reversed.  