Maletis

This is an appeal from a judgment denying appellant a refund of taxes paid by him for the tax year 194S.

The basis of appellant’s claim, filed in 1948, is that in the tax year 1947 he suffered a net operating loss which, under 26 U.S.C. §§ 23 (s) and 122, as amended, he is entitled to carry back and have deducted from his income of Í94S, have the tax for that year recomputed and have a refund of the difference between the tax so computed and the tax paid. The district court held that the loss suffered in 1947 was not his own net operating loss, but was the loss of an equally participating partnership consisting of himself and his two sons. Maletis contends that this partnership is invalid for federal income tax purposes, because the capital contribution on behalf of the sons, purported to be entered there was not in fact made and in any event was not from the sons.

We feel that Maletis is barred from now disclaiming the validity of the partnership he set up in 1945 cm the ground that he is bound by his election to do business as a partnership. The partnership he set up in 1945 was and is valid under Oregon law and at that time such partnerships had not been held invalid for…