c31:No. 8571

HANEY, Circuit Judge
(concurring).
I concur in the result. I am impelled to this conclusion because I think it necessary that either a cost or value of the debt (assuming that it was a debt), attempted to be written off, must be found as a basis for the amount to be deducted. I think such basis arises as a general proposition of law implied from the intent of the act and not from the provisions relating to disposition of property since there is no reference thereto in the provision permitting deduction for “debts ascertained to be worthless and charged off within the taxable year.” “Generally speaking, the income tax law is concerned only with realized losses, as with realized gains.” Lucas v. American Code Co., 280 U.S. 445, 449, 50 S.Ct. 202, 203, 74 L.Ed. 538, 67 A.L.R. 1010; and see Burnet v. Logan, 283 U.S. 404, 413, 51 S.Ct. 550, 552, 75 L.Ed. 1143; Burnet v. Huff, 288 U.S. 156, 161, 53 S.Ct. 330, 332, 77 L.Ed. 670. A similar limitation has been applied with, respect to the accrual of income, for income accrues to a taxpayer, when, there arises to him a fixed or unconditional right to receive it, but only “if there is a reasonable expectancy that the right will be converted into money or its equivalent.” H. Liebes & Co. v. Commissioner, 9 Cir., 90 F.2d 932, 936. Thus, there is no income when the accrued right is worthless, and, conversely, there should be no loss if the accrued right is worthless. Cf. Eckert v. Burnet, 283 U.S. 140, 141, 51 S.Ct. 373, 374, 75 L.Ed. 911.
The record is devoid of anything indicating either a cost or value to be given decedent’s promise. In the absence of such evidence, the Board could have made no finding of the amount thereof, and rightly presumed the determination of the Commissioner to be correct. Buck v. Commissioner, 9 Cir., 83 F.2d 786, 788, and cases cited.

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