The opinion
Qppek, J., dissenting: The conclusion that petitioner could not increase her basis by the value of the forfeited improvements, which cost her nothing, seems to me to be correct. See Helvering v. Gowran, 302 U. S. 238 . I can not agree, however, that consideration should not be given to the attorney fees incurred to recapture the property. Whether correctly decided or not, both Mary E. Evans, 42 B. T. A. 246, and Estate of Austin C. Brant, 44 B. T. A. 1306, dealt with the deductibility of such expenses where petitioner was being charged with income created by the repossession, as called for by Helvering v. Bruun, 309 U. S. 461 . In the present case, of course, petitioner failed to return the income in the earlier year, but I have no doubt that, had she done so, she would have created for herself a capital item with a corresponding basis. See Ruth B. Rains, 38 B. T. A. 1189. In that event, however, under the Evans and Brant cases, she could have offset the expenses. Since we are now taking cognizance of a failure to return the amount as income in the earlier year, by denying that result on the basis issue, I think it entirely consistent both with that approach and with the Evans and Brant cases to give petitioner the benefit of attorney fees which were a part of the cost to her of the property and which, by reason of her treatment of the entire transaction, she failed to deduct in the earlier year.