concurring: I believe that the result reached by the Court in the instant case is correct. I concur with the view implicit in the majority opinion that the family attribution rules of section 333(a) (2) operate solely with respect to shareholders. This alone is sufficient for the issue to be decided against the respondent. The committee reports relating to the original enactment of the foreign personal holding company act in 1937 clearly show that the word “individual” was used in section 333(a) (2) to bring within the scope of the act the situation wherein a shareholder transfers all his stock to his relatives to avoid the effect of the act.1 It must be borne in mind that section 333(a) (2) was drafted in the primordial days of tax sophistication. At that time, Congress could not be certain that the courts, if the word “shareholder” were used, would look beyond the transfer to find the transferor the real shareholder. It was never intended that the section apply to individuals lacking any real economic interest in the holding company.
I disagree, however, with the majority’s conclusion that section 333(a)(2) be limited strictly to concentrating stock ownership among related U.S. shareholders in order that five or less be found to have the requisite control. If Congress had intended that section 333 (a) be so restricted, the section would have read, as follows:
SEO. 333. STOCK OWNERSHIP.
(a) Constructive Ownership.— * * *
❖ Si! # * # * *
(2) Family and partnership ownership. — An individual shall be considered as owning the stock owned, directly or indirectly, by or for his family [who are citizens or residents of the United States] or by or for his partner [who is a citizen or resident of the United States]. * * *
However, the bracketed clauses were not included in the above section. Nor is there any indication of congressional intent which would justify reading those clauses into the section. In a situation where (1) five or less U.S. shareholders own 50 percent or less of the value of the stock in a foreign (personal) holding company and (2) foreign relatives of one or more U.S. shareholders also own stock in the same company, it is wholly consonant with the purpose of the act that the family attribution rules of section 333(a)(2) apply to U.S. shareholders to establish “control” for purposes of section 331(a) (2). There is no reason to assume that shares held by foreign relatives are less susceptible of being controlled by U.S. shareholders than shares held by U.'S. relatives.
DawsoN and Hoyt, agree with this concurring opinion.“The provisions discussed below establish methods of bringing into the ownership of an individual stock actually or constructively owned by others. As under title IA of the present law, it is not necessary that the individual who may be counted to make five individuals, under the constructive ownership rules, actually own stock himself. To exclude the case where he owned no stock would permit avoidance by the employment of the device of placing the stock in others whose actions would be subject to the individual’s control because of the family or other relationship existing between him and the actual owner.” (H. Rept. No. 1546, 75th Cong., 1st Sess., p. 7 (1937), 1937-2 C.B. 614.)