¶1dissenting: The conclusion of the majority that the petitioner exchanged a capital asset and thereby sustained a capital loss seems to me to be erroneous.
¶2The agreement set out in the majority opinion indicates that the owners of the property gave up (1) $13,000; (2) their cause of action against the mortgagee; (3) possession of the property; and (4) caused their tenants to release their cause of action against the mortgagee. *959They received (1) a release from liability for delinquent taxes; (2) a release from liability for all interest due on the bond which they had executed; and (3) conditional cancellation of the bond without personal liability for the payment of the principal.
¶3The maj ority hold that a loss occurred in the year 1934. If this conclusion is correct, then I think it is an ordinary loss rather than one from a sale or exchange of a capital asset. It was sustained when the owners ascertained that the property not only was not worth the amount of the mortgage indebtedness but actually constituted a liability to them. Cf. DeLoss v. Blair, 28 Fed. (2d) 803; certiorari denied, 279 U. S. 840; United States v. White Dental Manufacturing Co., 274 U. S. 398.
¶4The capital asset was the real property; but it was neither sold nor exchanged. The foreclosure proceeding cut off and extinguished the equity of redemption of the owners; but this did not occur until 1935. If the loss had been claimed in that year it would probably be allowable as an ordinary loss under the rationale of Commissioner v. Freihofer, 102 Fed. (2d) 787, affirming Sol Greisler, 37 B. T. A. 542; and C. Griffith Warfield, 38 B. T. A. 907. That question, however, is not before us.
¶5I am of the opinion that the Commissioner correctly computed petitioner’s gain from the operation of the garage to be $1,233.34. The $13,000 paid to the mortgagee, however, was not an ordinary and necessary expense of carrying on a trade or business. It was paid as part of the consideration for canceling the bond. It, therefore, merely increased the owners’ loss on the property.