dissenting:
/
This is another one of a group of three cases1 — each involving the allowability of depreciation on property in the year of its sale, where the realizable “salvage value” reflected by the sale price exceeded the unrecovered cost basis of the property — in which this Court has refused to follow three decisions of the Courts of Appeals, notwithstanding that there is no contrary Court of Appeals authority and that one of the decisions affirmed the previous position of this Court.
On July 15, 1964, the Court of Appeals for the Second Circuit, acting through two completely different panels of judges, decided the cases of Fribourg Navigation Co. v. Commissioner, 335 F. 2d 15, affirming a Memorandum Opinion of this Court; and United States v. Motorlease Corporation, 334 F. 2d 617, reversing 215 F. Supp. 356 (D. Conn.). In each of these cases said circuit, after considering the controlling statutes, the pertinent income tax regulations, and various conflicting views on the above-mentioned depreciation problem, decided in substance that a taxpayer cannot depreciate property in the year of its sale to a point where the adjusted basis thereof would go below the “salvage value” established by the price for which the property was sold. In these decisions the Second Circuit not only approved the longstanding position of the Internal Revenue Service; but it also approved the position previously taken in 1958 by the Court of Appeals for the Sixth Circuit in Cohn v. United States, 259 F. 2d 371, which was thereafter followed by this Court not only in the above-mentioned Fribourg case (which was affirmed) but also in Randolph D. Rouse, 39 T.C. 70 (1962), and in Edward V. Lane, 37 T.C. 188 (1961). Subsequent to all these decisions and in the absence of any contrary Court of Appeals authority, the law regarding the above-mentioned depreciation problem appeared to be fairly well settled.
Shortly thereafter however, this Court changed its position; and both in the instant case and in the above-cited Macabe and Trotz,
cases, it not only declined to follow its own above-mentioned precedents but also refused to follow the above-cited decisions of the Second and Sixth. Circuits. In the Maoabe case, in which five judges expressed their dissent, this Court stated in footnote 10 of its opinion: “we do not agree with the rationale employed by the court [i.e., by the Second Circuit in the Fribourg and Motorlease Corporation cases].” And more recently in both the instant case and in the concurrently considered Trots case, it likewise refused to follow the above-mentioned decisions of the Second and Sixth Circuits by not even considering, distinguishing, or citing any of them, and by instead placing principal reliance on its changed position as expressed in the Maoabe case.
In my view, such refusal of a trial court to follow the nonconflicting decisions of the Court of Appeals, and also in refusing to follow its» own established precedents almost immediately after one of them had been affirmed, leads only to confusion on the part of the bar, and to the encouragement of increased litigation at both the trial and appellate levels. Also within this Court, such action will lead to confusion in the handling of future cases — especially those which may arise within the jurisdictions of the Second and Sixth Circuits where the law has been established contrary to that of this Court’s revised position. Certainly in the present fluctuating situation, no lawyer can with assurance advise his client as to what the law is today on the depreciation problem here involved, or as to what it may be tomorrow. (See, in this connection, the dissenting opinion of Judge Simpson in Steinhort v. Commissioner, 335 F. 2d 496 (C.A. 5, 1964).)
II
Another unique feature of the Court’s opinion herein is that, in determining the “salvage” or resale value of the machinery and equipment which was sold, the Court disregarded the sale price upon which the parties themselves had agreed, and employed instead opinion-evidence as to fair market value of the property at the time of its sale. By such process, it approved the use of a fair market value for the machinery and equipment in the amount of $116,000, in lieu of the actual sale price of $195,000 — thus making possible the use of one “sale price” for the seller, in computing salvage value for present depreciation purposes; and the use of a different sale price for the buyer, in computing its cost basis for depreciation in future years. The difference between these two amounts ($116,000 and $195,000) is $79,000; and as to this amount, the Court was unable, even by use of conjecture, to identify the same with any of the specifically listed items of property included in the sale agreement for the rock-crushing business involved.
In my view, such use of fair market value in lieu of the actual sale price, for determining realizable “salvage value” in the year of sale, is not warranted. No support or authority for such method can be found either in the pertinent statute or the Income Tax Regulations; and it appears to be completely out of harmony, both with the above-cited Court of Appeals authorities and with the decisions of the Supreme Court in Massey Motors v. United States, 364 U.S. 92 (1960), and Hertz Corporation v. United States, 364 U.S. 122 (1960).
Based on all the foregoing, I respectfully express my dissent.
MtjlRONey, /., agrees with this dissent.The other two cases are Macabe Co., 42 T.C. 1105 (decided Sept. 29, 1964), and Harry Trotz, 45 T.C. 127 (concurrently considered with the instant case).