dissenting: The majority opinion, in declining to follow this Court’s decision in Otto Sorg Schairer, 9 T.C. 549 (1947), appears to disavow the principle relied upon therein that where the payment was found to be a part of the sale transaction it is taxable as a capital transaction rather than as compensation for services rendered. If such be the import of this case, I must disagree. Where the payment is dependent entirely on the outcome of the employee’s capital transaction and is intended only as a guarantee against loss of the employee’s capital, and is not intended as additional compensation, I do not think either the statute or the principles announced in Commissioner v. Lo Bue, 351 U.S. 243 (1956), and Commissioner v. Duberstein, 363 U.S. 278 (1960), require that it be taxed as compensation. I think the reasoning of this Court in Otto Borg Bchairer, supra, is sound under the present complexion of the law as it was when that case was decided. I would not overrule it.
Eaum, J., agrees with this dissent.