Kenneth David Perry and Linda Ruth Perry - Page 12

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          taxable income was not a Sixteenth Amendment-permitted income               
          tax.  87 F.2d at 324-325.                                                   
               The Circuit Court of Appeals analyzed the situation as                 
          follows (87 F.2d at 325):                                                   
                    While the computation of income is made                           
                    with due and necessary regard to periods of                       
                    time, which are established years either                          
                    calendar or fiscal, it cuts altogether too                        
                    fine to say that true, and therefore taxable,                     
                    income can only be ascertained by putting                         
                    together all the profit and loss transactions                     
                    of the period and determining net income                          
                    accordingly regardless of the fact that they                      
                    may in whole or in part be quite unrelated                        
                    except for the time element and the fact that                     
                    they were those of the same taxpayer.  If,                        
                    for instance, a separate and distinct                             
                    transaction during the year results in a net                      
                    realized gain to the taxpayer in and of                           
                    itself, income which is taxed has been                            
                    received, but Congress may, or may not, have                      
                    allowed deductions which as a matter of                           
                    computation will relieve that income in whole                     
                    or in part from the taxation to which                             
                    otherwise it would be subject.  * * *                             
          Accordingly, the Circuit Court of Appeals upheld the                        
          constitutionality of the section 23(r) limitation.                          
               To the same effect is White v. Commissioner, 37 B.T.A. 1106            
          (1938).  The taxpayer sustained a net loss in his securities                
          trading.  37 B.T.A. at 1109.  After discussing Davis v. United              
          States, supra, we stated in White as follows (37 B.T.A. at 1110-            
          1111):                                                                      
                    This petitioner, however, asserts that the                        
                    deduction he seeks is not a statutory                             
                    deduction, but falls within the first                             
                    classification of deductions made by the                          





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