The opinion
Leech,
dissenting: Beginning with A. J. Schwarzler Co., 3 B. T. A. 535, followed by many other cases, including Greenleaf Textile Cor poration, 26 B. T. A. 737; Frederick Krauss, 30 B. T. A. 62, and Morris Polin, 39 B. T. A. 951, the Board has consistently held that no deductible real estate loss is sustained by a taxpayer so long as he retains title to the real estate. The correctness of this ruling has been affirmed, at least, in Greenleaf Textile Corporation, supra, and no case, of which I know, is contradictory, except possibly Rhodes v. Commissioner., 100 Fed. (2d) 966.
Proceeding upon the basis of that long established and consistently followed theory, the Board then held that no such loss could be sus *466 tained by the mortgagor of real estate, upon foreclosure, so long as an equity of redemption existed. J. C. Hawkins, 34 B. T. A. 918; affd., 91 Fed. (2d) 354. This holding has likewise been consistently followed and affirmed. Derby Realty Corporation, 35 B. T. A. 335; T. J. Bosquett, 39 B. T. A. 763; Morton v. Commissioner, 104 Fed. (2d) 534. 1
Despite the factual distinction between the first mentioned line of cases and this one, which the majority attempts to draw, I think the basic issue is the same in both and that the holding here is directly contra to the rule adopted and followed here..
Undoubtedly there are impressive reasons for the application of the so-called “practical test” in determining when a real estate loss is sustained. But such reasons, as well as those supporting our original position, existed and were considered by the Board and courts before that original position was adopted. I see no reason now to change that position. But, if it is to be reversed, I think that reversal should be clear and unmistakable.
Disney agrees with this dissent.
Although obviously immaterial here in my judgment, there appears to be no period of redemption in the State of New York. Sec. 548, Real Property Law of New York, McKinney’s Consolidated Laws of New York. vol. 49, p. 876.