
    Lawrence J. Montgomery, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 28583.
    Promulgated November 7, 1929.
    
      
      Homer Hendricks, Esq., and F. 0. Graves, Esq., for the petitioner.
    
      Arthur Carncluff, Esq., for the respondent.
   OPINION.

Lansdon:

We have found from the petitioner’s uncontradicted testimony that he purchased stock of the Handley-Knight Co. in order to secure a sales agency for the new automobile to be manufactured. For several years petitioner had been the agent for Willys-Knight and Willys-Overland automobiles which line did not include a seven-passenger model. The Handley-Knight Co. proposed to manufacture a seven-passenger automobile equipped with a Willys-Knight motor, which petitioner expected to meet a demand for seven-passenger cars which he had been unable to supply. In Philip Kobbe Co., 4 B. T. A. 663, we held that a company engaged in conducting an advertising agency, which purchased corporate stock in order to procure valuable advertising contracts, the stock becoming worthless two years later, was entitled to include the loss thereby sustained as one resulting from the operation of a business regularly carried on within the meaning of section 204 (a) of the Revenue Act of 1921. Upon authority of our decision in the Kobbe case, which we think is controlling here, the $40,000 loss sustained by petitioner in 1922 should be included as a loss resulting from the operation of a trade or business regularly carried on.

The petitioner’s second claim involves the method of computing a net loss under the provisions of section 204 (a) of the Revenue Act of 1921, which provides:

That as used in this section the term “net loss” means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business) ; and when so resulting means the excess of the deductions allowed by section 214 or 234, as the case may be, over the sum of the following: (1) The gross income of the taxpayer for the taxable year, (2) the amount by which the interest received free from taxation under this title exceeds so much of the interest paid or accrued within the taxable year on indebtedness as is not permitted to be deducted by paragraph (2) of subdivision (a) of section 214 or by paragraph (2) of subdivision (a) of section 234, (3) the amount by which the deductible losses not sustained in such trade or business exceed the taxable gains or profits not derived from such trade or business, (4)- amounts received as dividends and allowed as a deduction under paragraph (.6) of subdivision (a) of section 234, and (5) so much of the depletion deduction allowed with respect to any mine, oil or gas well as is based upon discovery value in lieu of cost.

The net loss provided for in the above section means only a net loss resulting from the operation of a trade or business regularly carried on by a taxpayer. A net loss so resulting may not be increased by nonbusiness deductions or losses, but will be decreased by any excess of nonbusiness profits or gains over nonbusiness deductions or losses. H. J. Schlesinger, 5 B. T. A. 943; cf. W. H. Haskell et al., 7 B. T. A. 697; Gerald Hughes, 15 B. T. A. 215. Applying this interpretation to the facts of the instant proceeding, the following computations result:

1921
Deductions resulting from the operation of a trade or business and allowed by section 214_$327, 592.23
Gross business income_(_ 321, 529.00
Net business loss_ 6, 063.23
Nonbusiness income_ $9, 016. 75
Nonbusiness deductions_ 4, 961.66
Excess of nonbusiness income over nonbusiness deductions_ 4,055. 09
Net loss. 2, 008.14
1922
Deductions resulting from the operation of a trade or business and
• allowed by section 214- $03,224. 42
Gross business income- 34, 701.72
Net business loss- 28, 022.70
Nonbusiness income_$17, 913. 71
Nonbusiness deductions- 8,997. 01
Excess of nonbusiness income over nonbusinoss deductions_ 8,916.70
Net loss_ 19, 606. 00

Reviewed by the Board.

Decision will be entered under Bule 50.

Marquette, Sternhagen, Van Fossan, and Murdock dissent on the first point.  