25 T.C. 1354">*1354 The Commissioner determined a deficiency in income tax for 1949 in the amount of $ 704.70. The only issue is whether petitioners are entitled to a deduction on their joint individual income tax return for 1949 for gambling losses in the amount of $ 3,140.

FINDINGS OF FACT.

Petitioners, husband and wife, reside in Allston, Massachusetts. They filed their joint individual income tax1956 U.S. Tax Ct. LEXIS 228">*229 return for 1949 with the collector of internal revenue at Boston, reporting income as follows:

Herman Drews will hereinafter be referred to as the petitioner.

The reported income from gambling represented the winnings from one transaction, a newspaper pool which petitioner won in May 1949. 25 T.C. 1354">*1355 Petitioner continued to gamble at local race tracks and through "bookies" during 1949. He did not keep records of gains or losses from these transactions, but claimed a deduction in the amount of $ 3,140 as "Loss from gambling," which the Commissioner disallowed in toto for lack of substantiation.

Petitioner sustained a net gambling loss in the amount of $ 2,400 during 1949 as a result of wagering transactions, apart from the transaction involving the newspaper pool.

OPINION.

Petitioner is not a professional gambler. However, he had "always more or less bet on the horses and dogs and played the various pools, sweepstakes, number pools, and so forth." In May 1949 fortune smiled upon him and he won $ 9,000 in a pool. He testified, in substance, 1956 U.S. Tax Ct. LEXIS 228">*230 that after winning the pool he thought he was going to be "lucky" and was encouraged "to play the horses and dogs a little more heavily," and that the result of such increased activity during the remainder of 1949 was a series of losses. On some days, of course, he would be a winner; but, according to his testimony, the losses throughout the year exceeded the winnings. He was not able to furnish any figures as to such winnings or losses, but gave as his estimate that the losses were $ 3,140 in excess of the winnings. He based that estimate on the difference between the $ 9,000 which he had won in May and the amount that was left over therefrom at the end of the year, and he testified the $ 9,000 was used as a fund from which he made his bets.

We are convinced, on the whole, that petitioner Herman Drews was a truthful and candid witness, and are satisfied that he in fact sustained substantial net gambling losses from these transactions after winning the $ 9,000 from the pool in May 1949. However, we are not fully satisfied that the amount was such as he claimed. We are not sure that he may not have used some of this fund for personal expenses, or that all of the winnings went back1956 U.S. Tax Ct. LEXIS 228">*231 into the fund. In the absence of better evidence, this case calls peculiarly for application of the rule laid down in Cohan v. Commissioner, 39 F.2d 540 (C. A. 2), and using our best judgment on the record, we have found as a fact that petitioner sustained net gambling losses in the amount of $ 2,400 during 1949 as a result of wagering transactions after winning the pool in May of that year. As a consequence this amount, being less than the pool winnings, is deductible from gross income pursuant to section 23 (h), Internal Revenue Code of 1939.

Decision will be entered under Rule 50.