dissenting: I respectfully dissent.
First, in my opinion, the evidentiary facts related in the majority opinion do not justify its conclusion that in 1956 petitioner held the farm property primarily as rental income-producing property. The facts stated indicate to me that the farm property was acquired and held by petitioners primarily for 'appreciation in value with a view to selling it at a profit, and that the rental received from the riding club and the livery or stable fees received from several horseowners at the nearby racetrack were merely incidental. Petitioners bought the property “realizing that because of industrial expansion in that area the property would probably increase in value.” They apparently collected as rent from the riding club only such amounts as the club could afford to pay, the gross income of the farm being only $1,995 in 1956 despite a rental agreement which called for $400 rental per month; and in addition petitioners made all necessary repairs and paid the taxes, insurance, and utilities.
Absent at least the fact that both the original property and the replacement property were held primarily for the production of rental income, I find no similarity or relationship in service or use between the converted property and the replacement property here involved which would bring the situation within the exception to the general rule contained in subparagraph (A) of section 1033(a)(3). Nor do I think S. E. Ponticos, Inc. v. Commissioner, 338 F. 2d 477 (C.A. 6, 1964), or any of the other cases cited and relied on by the majority opinion require a different conclusion.
Secondly, even if both the farm property and the gas station property were held for the production of rental income, I think that alone is not sufficient to bring the transactions within the nonrecognition provisions of the above statute. In Filippini v. United States, 318 F. 2d 841 (C.A. 9, 1963), the court, while recognizing that the lessees’ end use of the property, though relevant, is not controlling, stated:
It is equally clear that the fact that the taxpayer leases both properties is not alone enough to justify non-recognition of the gain, for both properties might be leased yet represent materially different investments to the taxpayer-lessor.
The test was there said to be whether the relationship of the taxpayer to the two investments was sufficiently similar to provide the continuity of investment that would justify nonrecognition of the gain. In my opinion, petitioners’ investment of the condemnation award in 0.526 acres of urban property abutting hotel property he already owned, and which was leased for use as a gas station, was not such a continuation of his investment in the farm property, which he permitted a riding club of which he was a founder and member to use, as to bring it within either the terminology or intent of the statute, even though some rental income was derived from both properties. To hold otherwise would in my opinion extract all meaning from the words “similar or related in service or use” appearing in the statute. Here there was a change of investment into property not similar or related in service or use to the property converted, and the mere fact that it was precipitated by the condemnation does not, of itself, permit the nonrecognition of gain provided by the. statute. Filippini v. United States, supra.
Naum, Teain, and Hoyt, //., agree with this dissent.