The opinion
Steenhagen,
dissenting: As to the sale of November 13, I am of opinion that the evidence does not support finding No. 75. There is enough evidence to support a finding that, as to the shares sold on December 26, there was within 30 days an option or agreement to reacquire them, and the resulting conclusion under section 118 that no deduction for loss may be allowed. But that holding is not an adequate foundation for disbelieving or disregarding the earlier sale of November 13 or for holding that the loss thereby sustained may not be allowed. The evidence seems to me to prove that the November 13 sale was actually made and the loss sustained. The Commissioner did not determine that there was a contract or option to reacquire, and, assuming that he satisfactorily pleaded it, the evidence does not establish such an option or contract. Nor does it establish that at the time the November 13 sale occurred there was an understanding, express or tacit, that it should not be final or legally binding.
Smith and Mtjedock agree with the above dissent.