Commissioner of Internal Revenue v. Hoffman, 117 F.2d 987 (2d Cir. 1941)

Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen., for petitioner.

Elden McFarland, of Washington D. C., (G. A. Donohue and W. H. West, Jr., both of New York City, on the brief), for respondent.

Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

PER CURIAM.

The commissioner seeks reversal of a decision of the Board holding that under section 23(e) (2) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Code, § 23(e) (2), the taxpayers were entitled to deduct from gross income a loss sustained in 1934, when the interest in improved real estate owned by them subject to a mortgage upon which they had not assumed liability, became worthless and they abandoned their interest and so advised the mortgagee, although title remained in them until completion of foreclosure proceedings in the following year. 40 B.T.A. 459. Upon amply sufficient evidence the Board found specifically that the taxpayers' interest in the property became worthless in 1934. We see no valid ground to differentiate between a loss suffered on real estate and one on personalty, if worthlessness is definitely established. Compare Wieboldt v. Commissioner, 7 Cir., 113 F.2d 384, 386.

On the authority of Denman v. Brumback, 6 Cir., 58 F.2d 128, 129 and Rhodes v. Commissioner, 6 Cir., 100 F.2d 966, the Board's decision is affirmed.