concurring: I concur in the result reached by the majority because I think this case is controlled by the rationale of Estate of Charles C. Ingalls, 45 B.T.A. 787 (1941), which was reviewed by the Board and affirmed on appeal 132 F. 2d 862 (C.A. 6, 1943) ,1 and I find no other case directly supporting a contrary view. However, were this question one of first impression I would be constrained to disagree with the result reached here.
The loss is disallowed here under section 267 of the Internal Eevenue Code of 1954 which, for our purposes, is the same as section 24 (b) of the Internal Eevenue Code of 1939, involved in the Ingalls case. Section 267(a) disallows losses from sales or exchanges of property, directly or indirectly, between persons specified in subsection (b). While paragraphs (4), (5), (6), (7), and (8) of that subsection refer to various transactions involving trusts, none of them refer to an estate. In fact, respondent relies on subparagraph (2) to disallow the loss in this case, which refers to a transaction between “an individual and a corporation more than 50 percent in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual.” The seller here was an estate, not an individual. Compare John A. Snively, Sr., 20 T.C. 136 (1953); Lexmont Corporation, 20 T.C. 185 (1953). But, says respondent, if we apply the attribution rules of section 267 (c) (1) as this Court did in the Ingalls case, the seller constructively becomes the individuals who were the beneficiaries of the estate and thus we have a sale between an individual (or individuals) and a corporation more than 50 percent of whose stock is, by virtue of the attribution rules of section 267 (c) (2), constructively owned by the individual.
The fallacy in this reasoning seems to me to be that section 267 (c), containing the attribution rules, by its own terms is for the purpose of determining the “ownership of stock” of a corporation only and not for the purpose of determining whether the other party to the transaction, the seller-estate here, qualifies as an individual under section 267(b) (2). See report of the Ways and Means Committee, H. Rept. No. 1546, 75th Cong., 1st Sess., p. 27,1937-2 C.B. 609, with respect to section 301 of the Kevenue Act of 1937, the source of section 24 (b) (2), I.R.C. 1939. If the attribution rules are not applied to make the individual beneficiaries of the estate the constructive sellers of the stock, we do not have a transaction which falls within any of the paragraphs of section 267 (b), and the loss would not be disallowed under section 267 (a) (1).
However, in the opinion in the Ingalls case this Court applied the attribution rules in determining that stock owned and sold by an estate is to be regarded as having been owned and sold by the beneficiaries of the estate, and I think the rationale of that opinion requires the conclusion reached here.
The result reached hy the Board was the opposite of the result reached here but for a reason not applicable here. The appeal in Ingalls was apparently prosecuted by the petitioners only, in whose favor this issue had been decided by the Board, and the per curiam opinion of the Court of Appeals does not indicate whether the issue here involved was even considered on appeal.