The opinion
Murdock, J., dissenting: The enjoyment of a life estate through the receipt of income, profits, or gain of any kind is subject to income tax in its entirety. Irwin v. Gavit, 268 U. S. 161 . The sale of a life estate is but the anticipation of that taxable income. Any loss from the sale is at most the loss of anticipated income which would have been subject to tax if received. That kind of a loss can not be turned into a deductible loss. It is inconsistent with Irwin v. Gavit to allow a life tenant to deduct any basis upon the sale of his property where, as here, he has acquired that property by devise without paying out any cost for it. Cf. Estate of F. S. Bell, 46 B. T. A. 484; reversed, 137 Fed. (2d) 454.
Moreover, if the petitioners are entitled to a basis for gain or loss, then that basis should be determined in accordance with section 19.113 (a) (5)-l, (/) of Regulations 103. A life estate exhausts ratably with the life upon which it is limited. Thus, the life estate which is sold is a shorter estate than the life estate which was acquired at the death of the father. The life tenant has enjoyed a part of it. The regulation takes this into consideration and is the most satisfactory solution for this difficult question which has come to my attention.
Smith and Ofpek, JJagree with this dissent.