Neylan

This is a petition by the Commissioner of Internal Revenue to review a decision of the Board of Tax Appeals which overruled the Commissioner’s determination of a deficiency in taxpayer’s income tax return for the year 1931.

In 1929 the taxpayer acquired corpo-, rate stock for which he paid $49,156.59. In 1931, more than two years later, he sold it for $3,174.30, and the day following the sale purchased shares of identical number and kind for $3,570.50. The stock acquired in this second purchase was sold the same day for the sum of $3,160. Thus, disregarding'the wash sale, the actual loss suffered by the taxpayer from the original purchase to the final sale was $46,392.79.

This amount was claimed as a deductible loss for the year 1931 under § 23(e) of the Revenue Act of 1928, 26 U.S.C.A. § 23 note, which allowed deductions for losses ’“if incurred in any transaction entered into for profit * *

It is conceded that no loss could be claimed on the first or wash sale of the stock purchased in 1929, by reason of § 118 of the 1928 Act, 26 U.S.C.A. § 118 note.

Both the Commissioner and the taxpayer agree that the loss incurred by the second sale, i. e., of the repurchased…