Later courts went against this
Disagreed with in part by Boehm v. Commissioner of Internal Revenue, 146 F.2d 553 (1945)
” In so far as Smith v. Helvering, 78 U.S.App.D.C. 342, 141 F.2d 529, adopts the subjective test we must respectfully disagree with it.
The opinion
GRONER, C. J.
(dissenting).
I am in sympathetic accord with the conclusion in this case and would gladly go along, if I felt free to apply what seem to me to be the equities of the situation. For it is admitted that petitioner sustained a deductible loss in some year, and it is equally clear that in the hope of avoiding or postponing it, he stood by the ship to the very last. Whether, in this respect, enough was shown to identify the particular year of loss is, by established rule, a question of fact as to which the decision of the Tax Court is final where it has, as it has in this case, “ ‘warrant in the record’ and a reasonable basis in the law.” Dobson v. Commissioner, 320 U.S. 489 , 64 S.Ct. 239 . The Tax Court having found that petitioner has not borne the burden, which was his— Burnet v. Houston, 283 U.S. 223 , 51 S.Ct. 413 , 75 L.Ed. 991 ; Squier v. Commissioner, 2 Cir., 68 F.2d 25 , we are, as I think,' foreclosed and must affirm.