E. Taylor Chewning and Caroline Chewning, Husband and Wife, Petitioners, v. Commissioner of Internal Revenue, Respondent, 363 F.2d 441 (4th Cir. 1966)

The petitioners seek review of the Tax Court's decision¹  that their uninsured loss from the destruction by storm of boxwood bushes located at their residence is not deductible as an ordinary loss under section 165(c) (3) of the Internal Revenue Code of 1954, but must be applied pursuant to section 1231 of the Code in reduction of the petitioners' gains from sales of property used in their trade or business.

We are persuaded by the able opinion of Judge Atkins that the Tax Court was correct in its interpretation of the Code and that we must reject the reasoning of Maurer v. United States, 284 F.2d 122 (10 Cir. 1960) in favor of that of Morrison v. United States, 355 F.2d 218 (6 Cir. 1966). While the taxpayers' position was not without some basis in the language of section 1231 prior to the 1958 amendment (Maurer applied the statute as it existed before the amendment), we think that amendment²  clearly indicated Congress' intention that the taxpayers' loss should not be excluded from treatment under section 1231. The judgment of the Tax Court is therefore

Affirmed.