The opinion
LITTLETON, Judge
(dissenting).
While the facts proved by plaintiff as to his activities in connection with his purchases and sales of real and personal property over a period from 1914 to 192!3, inclusive, are not as satisfactory as I should desire, or as might easily have been established had these matters been gone into at the time the testimony was taken, I am, however, of the opinion that the facts established in relation to the plaintiff’s transactions, outside of his profession as a physician are sufficient to justify the conclusion that these transactions and the time spent by him in connection therewith constituted a business regularly carried on within the meaning of section 204 of the Revenue Act of 1921, 42 Stat. 227 .
It is established that plaintiff employed a clerk and a business manager to look after his transactions outside of his profession as a physician and surgeon. For a number of years he had one Carlos Sewell, a business man in his employ, to look after his business interests. Grace Irwin, who was an officer of the Clinton Hospital and Training School where the plaintiff was principally engaged as a physician and surgeon, assisted him in keeping his records relating to his business transactions, and, as Carlos Sewell, who had been in the plaintiff’s employ, had moved to California, L. 'looker was employed as plaintiff’s business manager subsequent to the taxable years here involved. Plaintiff devoted about one-third of his time to Ms business matters outside of his profession. This fact is established by the testimony of the plaintiff and one other witness, and it is not contradicted. The plaintiff devoted the forenoon of each day almost exclusively to his profession as a physician and surgeon.
I do not think that plaintiff can be regarded as a capitalist or as a broker, but I do think that his business dealings over the years from 1914 to 1923, inclusive, and the time devoted thereto, as established by the facts, are sufficient to constitute a business entitling him to the benefits of the net loss provision of section 204 of the Revenue Act of 1921. The transactions which the plaintiff had wore not few and isolated, although ha may have had only one or two transactions in a particular year. Such transactions must be viewed in the light of all of the plaintiff’s similar business interests, the character of those interests, and the time and attention devoted thereto by Mmself and those employed by him. Eysenbach, 10 B. T. A. 716; Brickell, 17 B. T. A. 711; Crane, 17 B. T. A. 720; Baker, 17 B. T. A. 733. The purpose of section 204 was to relieve from the harsh rule that required one’s tax liability to be determined solely from the happenings of a twelve-month period. It is a relief provision and should be liberally construed. Marston, 18 B. T. A. 558. Treasury Decision 2090 would seem to include plaintiff within the terms of the definition of a loss incurred in trade as defined by the Treasury Department. In that Treasury Decision it is said: “The term ‘in trade’ as used in the law * * *' is held to mean the trade or trades in which the person making the return is engaged; that is, in which he has invested money otherwise than for the purpose of being employed in isolated transactions and to which he devotes at least a part of his time and attention.” In Treasury Decision 3989 it is stab ed: “In trade is synonymous with business. Business has been defined as — 'That which occupies and engages the time, attention, and labor of any one for the purposes of a liveli-r hood, profit, or improvement; that which is his personal concern or interest; employment, regular occupation, but it is not necessary that it should be his sole occupation or employment.” Had the purchase by the plaintiff in 1920 of the 126(4 shares of stock of the Weatherford Milling Company at a cost of $36,250 and the surrender thereof at á loss in that amount in December, 1922, been *870 the only transaction had by the plaintiff over a period of years outside of his profession, I should agree that he would not be entitled to the benefits of the net, loss provision of section 204. But even aside from the various -other dealings in prior and subsequent years, this was not the only business transaction he had outside of his profession in 1920, for it appears that in that year he purchased 65 residence lots in - Clinton, Okl., and sold a portion of them, and in 1922 when he surrendered the stock in the Weatherford Milling Company and sustained the loss he also purchased a 240-acre farm in Dewey county, Okl., and sold the same in that year. With the exception of the year 1915, it appears that he had business transactions in the purchase or sale, or both purchase and sale, of real or personal property in every year from 1914 to 1926. In view of the facts established with reference to the number of transactions engaged in by the plaintiff, the fact that he devoted about one-third of his time to these matters, and the fact that he employed others to assist him, I am of opinion that under the statute he should have the benefit of whatever net loss he sustained in 1922 as a deduction from his income for that year, and that whatever excess remains should be deducted from his income for 1923.
It is clear from the evidence that plaintiff did not sustain the net loss until December, 1922, and his action in using a portion of it to reduce his income for 1921 was not justified.
Defendant insists that, in as much as the plaintiff has not established all the essential facts necessary to a computation of the amount of the net loss which may be used to reduce the net income for 1922 and 1923, as required by the provisions of section 204 (a), Sehlesinger, 5 B. T. A. 943; Montgomery, 17 B. T. A. 1308, the court should dismiss the petition, even if it finds that he was engaged in a business regularly carried on within the meaning of that section. It appears that the Commissioner of Internal Revenue made no examination of plaintiff’s books and records in connection with his disallowance of the ioss claimed and made no computation of what the deductible net loss in 1922 and 1923, if there was one, would be; but entry of judgment as to the amount of the net loss, if any, can be withheld to enable the parties to stipulate the facts necessary to such determination or to enable the plaintiff to establish the amount of such loss by proof of the necessary facts.
It is further insisted by the defendant that -section 204 of the Revenue Act of 1921 confides in the Commissioner of Internal Revenue a discretionary power, in the allowance of a claim for “net losses,” and that his action is not subject to review by this court. There is no merit in this contention. The establishment of the loss is an ordinary question of fact of a nature which the courts constantly review in suits for the refund of taxes. The provisions of the statute that, “if for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the commissioner that any taxpayer has sustained a net loss,” repose in the Commissioner no such discretionary power as may not be reviewed by the courts. Boyle Valve Co. v. United States, 69 Ct. Cl. —, 38 F.(2d) 135 .
It seems to me, therefore, 'that the court should hold that the plaintiff is entitled to recover, and that entry of judgment should be withheld to enable the parties to submit a computation of the amount of the deductible net loss.