The opinion
COLLINS, Judge
(concurring in part and dissenting in part):
I agree with the court that only the television network contracts have been shown to be conceivably deductible under the applicable law. ' I dissent, however, on the ground that plaintiff has failed so far to prove a reasonable value to be assigned to those contracts.
The court’s opinion fully states the relevant facts. On the purported basis of those facts, the court allocates $250,-000 of the stipulated value of all the intangibles to the network contracts, candidly using “the broadest kind of estimate.” In so doing, the court does not refer to any evidence which suggests in a positive manner the precise value attributable to the contracts. This, in my opinion, is improper. The fault, admittedly, lies largely with the record. Nothing in the evidence authorizes a more precise statement than that the value of the contracts was an amount between zero and something less than $459,706.
It is well established that plaintiff has the burden of proving its right to a deduction. 1 Implicit in this statement is the recognition of plaintiff’s obligation to prove each and every point necessary to qualify for the deduction it claims. 2 It seems to me obvious that, in the same way that proof of an asset’s useful life is necessary before a depreciation deduction will be allowed, an asset’s cost basis is an essential element of proof before a loss deduction is permissible. 3 As recognized in Westinghouse Broadcasting Co. v. Commissioner of Internal Revenue, 309 F.2d 279, 282 (3d Cir. 1962), cert. denied, 372 U.S. 935 , 83 S.Ct. 881 , 9 L.Ed.2d 766 (1963), tax *1232 payer’s failure to prove the useful life of a network affiliation contract with “reasonable certainty” — the test in the regulation — resulted in a denial of the claimed deduction. Certainly the similar importance of the asset’s basis to the determination of the deductible amount warrants our requiring a reasonable basis in fact for the value we attribute to the affiliated network contracts here. At least, something more than “the broadest kind of estimate” is required.
Since, however, the parties’ chief concern in previous litigation has been whether the television license had any value, plaintiff may not have presented all the available evidence concerning the value of the network contracts. For that reason, in light of the complexity of this case, I would not dismiss the petition, but would remand the case to a commissioner for trial on the sole and precise issue of the value of the network contracts.
. See, e.g., Oliver v. Commissioner of Internal Revenue, 364 F.2d 575 (8th Cir. 1966); Parmelee Transportation Co. v. United States, 351 F.2d 619 , 173 Ct.Cl. 139 (1965).
. See, e.g., Mayrath v. Commissioner of Internal Revenue, 357 F.2d 209 (5th Cir. 1966) (property not shown to have been used in trade or business); Schubert v. Commissioner of Internal Revenue, 286 F.2d 573 (4th Cir.), cert. denied, 366 U.S. 960 , 81 S.Ct. 1919 , 6 L.Ed.2d 1253 (1961) (plaintiff must prove interest in depreciable property).
. See Oliver v. Commissioner of Internal Revenue, 364 F.2d 575 (8th Cir. 1966), wherein it was held, in regard to the deductibility of medical expenses, that:
“ * * * The taxpayer bears the burden of proving the facts necessary to establish his right to a deduction and the burden of proving the amount of the deduction. * * * ” Id. at 577 .
Treas.Reg. § 1.167(g)-1 (1956) (originally numbered 1.167(f)-1) provides that the basis for depreciation shall be the adjusted basis as provided in Int.Rev. Code of 1954, § 1011, for determining the gain from the sale or other disposition of property. A similar regulation existed under § 23(1) of the Internal Revenue Code of 1939. See 26 C.F.R. § 3 .-23(1)-4 (1st ed. 1939).