The opinion
McMahoN,
concurring in part: Upon the last issue I concur only in the result reached by the majority and I thus concur for other reasons as follows :
In the last analysis the ultimate and primary question here presented is whether an actual loss was sustained. In Shoenberg v. Commissioner, 77 Fed. (2d) 446, affirming Sydney M. Shoenberg, 30 B. T. A. 659; certiorari denied, 296 U. S. 586 , the court stated:
* * * Tax laws deal with realities. [Cases cited.] * * *
To secure a deduction, the statute requires that an actual loss be sustained. An actual loss is not sustained unless when the entire transaction is concluded the taxpayer is poorer to the extent of the loss claimed — in other words, he has that much less than before.
A loss as to particular property is usually realized by a sale thereof for less than it cost. However, where such sale is made as part of a plan whereby substantially identical property is to be reacquired and that plan is carried out, the reaMeation of loss is not genuine and substantial- — it is not real. This is true because the taxpayer has not actually changed his position and is- no *819 poorer than before the sale. The particular sale may be real but the entire transaction prevents the loss from being actually suffered. Taxation is concerned with realities and no loss is deductible which is not real.
* * * He was no poorer when the plan was executed than he had been before the sales by him, except for the brokerage commissions. He suffered no real loss but solely a paper one which could be shown only by considering one part of an entire plan and transaction. The entire plan was devised for the purpose of showing such loss. Its results must be judged as an entirety.
* * * * * * *
Herein the petitioners were no poorer after the alleged repurchases than they were before the alleged sales. They had the same interests in the assets of the corporations the securities of which are involved herein after such repurchases that they had prior to such sales. There is no proof to the contrary. They suffered no real or actual loss as a result of everything that occurred in this respect considered as a whole, as it should be.
Since the evidence establishes that the taxpayer did not by any dealings disclosed here intend to and did not, in reality, permanently part with the property interests involved, even though purported sales, in form only, were made, such dealings did not constitute sales resulting in deductible losses within the meaning of the revenue acts. Sydney M. Shoenberg, supra; Joseph Blumenthal, 30 B. T. A. 125; and United National Corporation, 33 B. T. A. 790. In each instance the alleged sale and repurchase occurred practically simultaneously. In on© instance both occurred on the same day. In each instance the alleged buyer was known to petitioners, the alleged sellers who were dealing on their account, as disclosed by the stipulation. The whole plan discloses an intention on the part of petitioners to retain the securities indefinitely, the alleged sales and repurchases being matters of form and not of substance. Here there was more than a mere expectancy or hope to reacquire the same securities at some indefinite future time. There is disclosed an executed plan to retain them. The intention to retain the same property interests was the dominant factor in the plan. The petitioners did, in fact, retain indefinitely the same identical property interests, represented by the securities, and hence, they did not absolutely or permanently dispose of any of them or intend to do so. Their conduct in these respects is controlling upon the question of their intention. In Chisholm v. Commissioner, 79 Fed. (2d) 14; certiorari denied, 296 U. S. 641 , the court stated that “the purpose which counts is one which defeats or contradicts the apparent transaction, not the purpose to escape taxation which the apparent, but not the whole, transaction would realize.” In the instant proceedings the alleged immediate repurchase of the securities disclosed a purpose which defeated or contradicted the apparent transaction, i. e., the alleged *820 sale. Such is the purpose which counts here and defeats the deduction of the losses claimed.
The reason given by the majority for the result reached by them on this issue, which is to the effect that the claimed losses involved here are not deductible since sales were not made in trade or business because they were made solely to liquidate losses for tax purposes and hence were not made in the ordinary course of business is erroneous, not in accord with the decisions of the courts and the Board, and contrary to common practice. The majority proceeds upon the theory that sales were made but outside of petitioner’s business. The taxpayers were engaged as partners in the business of buying and selling securities for customers and on their own account. Assuming, for the purposes of this discussion only, that sales were made, it follows that such sales were in the line of their business, since they involved securities dealt in by the petitioners. To increase the net profits of a business of buying and selling securities by means of a sale to reduce taxes is as much in the line of that business as a sale for profit or for avoidance of loss. These taxpayers, before us in these proceedings, did not in or by the making of the sales in question step out of their line of business or out of the ordinary course of their business. They remained therein all the while. The avoidance, reduction and postponement of taxes has been and is increasingly becoming a vital factor in many, if not most, business transactions. They have become matters of primary importance in the ordinary course of many a business. In fact the very structure of business organization and the very mode of doing business is, in many instances, influenced to a large extent by taxation; and comparatively few business transactions of importance are entered into without considering the effect of taxation, which is a dominant factor in the field of business generally. The motive or purpose behind such sales, whether to make a profit, avoid a probable or greater loss, or avoid, reduce or postpone taxes is not determinative so long as the means or devices employed are legal and are not prohibited by the revenue acts. A sale is such a means; in fact, deductible losses are often sustained through sales. “ The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, can not be doubted.” Gregory v. Helvering, 293 U. S. 465 (and cases cited therein). To the same effect are Commissioner v. Eldridge, 79 Fed. (2d) 629, affirming 30 B. T. A. 1322; and Chisholm v. Commissioner, supra. As heretofore pointed out, upon the authority of the latter case “ the purpose which counts is one which defeats or contradicts the apparent transactions, not the purpose to escape taxation which the apparent, but not the whole, transaction would realize.” “ It is *821 immaterial that the motive prompting the sale or the plan of which the sale was a part was to secure a deduction.” Shoenberg v. Commissioner, supra.
We are not bound by the conclusions of the stipulation.
In any event, the petitioners have not met their burden of overcoming the presumption in favor of the correctness of the determination of the respondent in disallowing the losses in question.