dissenting: I must dissent from the holding of the majority as to the rights or property for which Stewards paid $300,000 of its own money in 1953. As to the $410,000 balance which was discharged through the issuance of a note secured by a mortgage upon Belmont real estate and then paid in later years presumably out of hospital funds or earnings, it is clear that this amounted to distributions taxable at ordinary income rates since the note was a cash equivalent.
Keturning now to what was purchased for the $300,000: It seems clear to me that the rights and privileges expressly granted by each of the five membership certificates in effect constitute the “member” a trustee of a charitable organization and are really more in the nature of further definitions of the duties imposed by said certificates to serve the public within the areas outlined by the charter grant of the charitable organization. However, when all five (100 percent) of the certificates are considered collectively it becomes apparent that a new right and privilege has come into being for now the five members acting in concert can direct and control the policies and direction of the hospital.
This new right is not opposed to or in derogation of the duties imposed by the individual certificates for it cannot be assumed that the concert action of the five will be detrimental to the charitable, public purposes of the hospital. On the contrary, it must be assumed that the concert action of the five will be to the best interests of the hospital, for only that character of action will preserve and even augment those valuable intangible rights which have come into being and grown up around the certificates.
These intangible rights which have grown valuable are the rights to designate the doctor-members of the hospital staff, thus affording the doctor certificate holders with a good and desirable hospital facility for their patients and prospective patients. Obviously, if inferior or incompetent doctors were placed upon the hospital staff or if the hospital were operated in any manner other than in the best interests of the public, it would thereby become undesirable, lose its good reputation, and no longer attract unattended patients or be acceptable to the patients of the doctor certificate holders.
Thus, the interests of the five certificate holders and of the objects of the charity are identical — that the hospital be operated in a good and workmanlike manner.
We have long held that intangible property rights can exist, separate from, but in connection with definitive rights, i.e., unexpired terms of leaseholds, and that when sold they result in capital gains or losses. Walter H. Sutliff, 46 B.T.A. 446 (1942); Isadore Golonshy, 16 T.C. 1450 (1951), affd. 200 F. 2d 72 (C.A. 3), certiorari denied 345 U.S. 939; and Louis W. Hay, 18 T.C. 438 (1952), affd. 210 F. 2d 390 (C.A. 5), certiorari denied 348 U.S. 829.
We have also considered one situation in which these valuable intangible rights came into being apart from and even in spite of the written lease. In McCue Bros. & Drummond, Inc., 19 T.C. 667 (1953), affd. 210 F. 2d 752 (C.A. 2), certiorari denied 348 U.S. 829, the lease had expired under its terms on January 31, 1946, but New York rent control laws were then in effect under which the tenant had conditional rights to remain in possession. This right was surrendered and sold to lessor for $22,500, which amount tenant returned as long-term capital gain. Eespondent contended for ordinary income treatment, arguing, inter alia, that tenant had no property interest in the premises, that the transaction was not a sale or exchange but an extinguishment and disappearance of any rights that might have existed, and that such rights had not grown out of and were not connected with the written lease. We and the Court of Appeals held that a right did exist and that it was a property right, allowing the long-term capital gains treatment. Judge Augustus Hand said, in part, at page753:
Whether the property is held under a lease or by virtue of the Rent Control Laws seems immaterial; in both cases the lessee or tenant has the right to the possession and use of the premises as long as he continues to pay the rent.
The Commissioner attacks the Golonsky decision on the ground that it is inconsistent with recent decisions of this court holding payments made for the release of contractual rights, such as the right to an exclusive agency, to be ordinary income. [Cases cited.] In these cases no “sale or exchange” within the meaning of the statute was found because the contractual right was not transferred, but was released and merely vanished. However, we think the right of possession under a lease or otherwise, is a more substantial property right which does not lose its existence when it is transferred. If it is sold by the tenant to a third person, the gain derived therefrom is a capital gain, * * * [Emphasis supplied.]
Thus in MeQue and in Seharf, the rights are not an express part of the written instrument but arose surrounding it. In MeQue they arose because of a new State statute. In SeTiarf they arose because of the good and efficient operation of Belmont Hospital through the years in serving the needs of the public.
The parallel is near perfect. It is indeed harsh to reward the taxpayer who was the lucky recipient of a property right created by an emergency wartime statute and penalize the taxpayer whose efforts (or the efforts of his predecessors in interest) created these intangible property rights surrounding the Belmont memberships by well serving the public.
Fat, J:, agrees with this dissent.