UNION PACIFIC RAILROAD COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent

UNION PACIFIC RAILROAD COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Circuit Court of Appeals, Second Circuit. March 7, 1934. For former opinion, see 69 F.(2d) 67. Henry W. Clark, of New York City, for petitioner. Sewall Key and Morton K. Rothschild, Sp. Assts. to Atty. Gen., for respondent. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The taxpayer has petitioned for a rehearing as to the deduction of a loss incurred on the exchange of Navigation Company bonds in 1921. The Board held that the petitioner had not sustained the burden of proof that the Navigation Company bonds were held for investment. The petitioner complains that our opinion goes beyond an af-firmance of this finding'as to burden of proof and makes an affirmative finding of fact that the Navigation bonds were held for investment. Our discussion of this subject closed with the sentence: “We conclude, therefore, that the Navigation bonds were held by Union Pacific for investment; hence no loss can, be ‘recognized’ on the exchange.” It was not our purpose to make any modification in the fact findings of the Board. Consequently our opinion will be modified by deleting the above-quoted sentence and substituting therefor the following: “We conclude, therefore, that the Board correctly held that the petitioner had not sustained the burden of proving that the Navigation bonds were not held by it for investment; hence no loss can be ‘recognized’ on the exchange.” The petition for rehearing is denied.