dissenting: It seems to me impossible to dispose of this case on the authority of respondent’s regulation without concluding that petitioners were “banks.” If they were not, the quoted portion of the regulation (footnote 3, supra) by its terms has no application. See Commissioner v. Ames Tr. & Sav. Bank, (C. A. 8) 185 F. 2d 47, 50. There the Court of Appeals distinguished Economy Savings & Loan Co., 5 T. C. 543, aff'd. (C. A. 6) 158 F. 2d 472, on the ground that that petitioner was not engaged in the banking business.1 If we are relying on the Ames reversal, what do we do about this distinction? Petitioners’ activities are much more comparable to those in the Economy case than to either Commissioner v. Ames Tr. & Sav. Bank, supra, or National Bank of Commerce, 16 T. C. 769, which was decided on the authority of a legislative history and a case (Commissioner v. Ames Tr. & Sav. Bank, supra) applying only to “banks.”
In spite of this, we now say: “The respondent further argues that petitioners are in the banking business * * *. In view of the conclusion we have reached on the narrow question presented to us, we do not pass on the merits of that argument.” Unless we do so, I fail to see how we can conclude that the statements contained in the Economy case (which has never before been repudiated) are “directly contrary to our holding in the National Bank of Commerce case,” or even that the conclusion being reached is the correct one. I must accordingly disagree with the present Opinion.
“We should perhaps add that we do not consider Economy Savings & Loan Co. v. Commissioner * * * as being in any way applicable to the present situation. Under the contract governing the dealings of the parties, the funds received by the loan company in that case were not of the nature of a deposit transaction with a bank, as the court itself there recognized, in saying that ‘Respondent’s suggestion that petitioner was really in the banking business * * * is not borne out by the evidence.’ ”