¶1dissenting: The petitioner contends that when he received, upon the dissolution of the partnership, less than the stipulated basis for his partnership interest, the difference was deductible as an ordinary loss. The Commissioner, in his determination of the deficiency, recognized that such a loss occurred. Such a loss is an ordinary loss because it does not result from a sale or exchange. That is the only loss claimed by the petitioner.
¶2The Commissioner, dissatisfied with the deficiency which he determined, has claimed an increased deficiency by an amended answer. He has the burden of proof to sustain that claim and would have to show, contrary to his determination and the contention of the petitioner, that loss did not occur from the liquidation of the partnership. The majority Opinion states that the sale of the assets to the corporation must be considered as made by the individual partners rather than by the partnership. I see no justification for that assumption. However, a gain has been reported by the partnership from the sale of the assets by it to the corporation, the petitioner has reported his distributive share thereof, and no loss is being claimed on the sale of the assets. The prevailing Opinion sustains the increased deficiency claimed by the Commissioner by confusing the issue, that is, by demonstrating that under section 24 (b) (1) (B) the petitioner can claim no deductible loss from the sale of the assets to the corporation. That is a false issue because the petitioner claims no such loss but, on the contrary, concedes that gain resulted from the sale of the assets to the corporation. The real question of whether the amount which the petitioner received upon the liquidation of the partnership was less than the stipulated basis for the partnership interest remains unanswered, although the record indicates that he had the same amount of loss from that liquidation regardless of who sold the assets to the corporation. The evidence certainly fails to show that the partnership was not liquidated or that the petitioner did not receive in the liquidation less than his basis for his interest in the partnership. There should be no increased deficiency and decision should be entered for the petitioner.