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JOHNSTON v. COMMISSIONER OF INTERNAL REVENUE

No. 88.

86 F.2d 732 (1936)

JOHNSTON v. COMMISSIONER OF INTERNAL REVENUE.

Circuit Court of Appeals, Second Circuit.

December 7, 1936.

Attorney(s) appearing for the Case

William W. Spalding, of Washington, D. C. (Mason, Spalding & McAtee, of Washington, D. C., of counsel), for petitioner.

Robert H. Jackson, Asst. Atty. Gen., and Sewall Key and Berryman Green, Sp. Assts. to the Atty. Gen., for respondent.

Cohen, Cole, Weiss & Wharton, of New York City (John F. Wharton and Harry J. Leffert, both of New York City, of counsel), for petitioner.

Proskauer, Rose & Paskus, of New York City (Walter Mendelsohn, Wilbur H. Friedman, and Harry Silverman, all of New York City, of counsel), amicus curiæ.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

During the taxable year 1932 the petitioner sold at a loss noncapital assets which he owned personally. During the same year he was one of the partners in a partnership which sold noncapital assets of the partnership at a profit. The partnership filed its information return showing this profit, and the petitioner included his share of it in his own return. The amount of gain so included was less than the loss he had sustained. He deducted the...

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