concurring: Although I join the majority opinion, I write separately to explain why I believe the extension of the principle of Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), called for in the dissents does not serve the purpose for which this Court adopted that principle and therefore is not warranted in the present case. In Lardas v. Commissioner, 99 T.C. 490, 495 (1992), we recently had occasion to review that purpose. There, we stated:
It should be emphasized that the logic behind the Golsen doctrine is not that we lack the authority to render a decision inconsistent with any Court of Appeals (including the one to which an appeal would lie), but that it would be futile and wasteful to do so where we would surely be reversed. Accordingly, bearing in mind our obligation as a national court * * * we should be careful to apply the Golsen doctrine only under circumstances where the holding of the Court of Appeals is squarely on point. * * *
In my view, the majority opinion is not a futile and wasteful insistence of this Court’s view as to whether petitioner (John) received a constructive dividend as a result of the redemption by a corporation of the stock of his former spouse (Joann). While it is a virtual certainty that respondent will appeal our holding that John did not receive a constructive dividend to the U.S. Court of Appeals for the Ninth Circuit, it is just as certain that petitioner would have appealed if the dissents had been adopted. What is by no means certain, in my opinion, is the outcome on appeal, since the legal issue in Arnes v. United States, 981 F.2d 456 (9th Cir. 1992), was the application of section 1041 to Joann, and not whether John received a constructive dividend, the legal issue presented here. In these circumstances, I do not believe we should extend the principle of Golsen v. Commissioner, supra, to the instant proceeding.
Hamblen, Fay, Chabot, Cohen, Wright, and Colvin, JJ., agree with this concurring opinion.