With due deference I dissent.
In general, the term “income in respect of a decedent” applies only to “those amounts to which a decedent was entitled as gross income” but which were not properly includable in his final return. Sec. 1.691 (a)-l(b), Income Tax Regs. The proper test for determining whether gain from the sale of property is to be treated as income in respect of a decedent is the status of the transaction at decedent’s death, not who carried on the “economic activity” which brought it to that status. Thus, as example (4) of the Regulations explains, where, pursuant to a contract made by A obligating his executor to sell his stock, a sale is made, “there is no income in respect of a decedent with respect to the appreciation in value of A’s stock to the date of his death” because “the sale of stock is consummated after A’s death.” However, if A had in fact sold his stock prior to his death, but payment was not received until after his death, any gain from the sale would be section 691 income. Sec. 1.691 (a)-2(b), example (4).
I do not think the present transaction had reached the point at decedent’s death where it properly can be said that decedent’s stock had been converted to “property which constitutes * * * an item of income in respect of a decedent under section 691.” Sec. 1014(c), I.R.C. 1954. (1) The asset sale by the corporations was subject to approval by the Interstate Commerce Commission, a condition precedent not met until 18 months after decedent’s death. Such approval is neither routine nor perfunctory. Falwell v. United States, 69 F. Supp. 71, 79 (W.D. Va. 1946), affirmed per curiam 330 U.S. 807 (1947). (2) At the time of his death, neither the decedent nor the other stockholders were contractually committed to the plan to liquidate the corporations. Owen O. Orr, the majority stockholder, for reasons of his own, might have decided not to liquidate the corporations.1 Indeed, decedent’s own stock was not committed to vote for the plan until May 23, 1960, when the proxies were signed and delivered.
Trust Co. of Georgia v. Ross, 262 F. Supp. 900 (N.D. Ga. 1966), on appeal to the Fifth Circuit, is strongly relied upon by the majority opinion. That case involves a contract by the decedent to sell his stock, not a contract by the corporation to sell its assets with an informal understanding that the corporations would later be liquidated. The fact that both situations involve nonrecognition of gain at the corporate level (applying section 337 in the latter) is not sufficient to equate a sale by a corporation of its assets with a sale by a stockholder of his stock. Cf. Boyle v. United States, 355 F. 2d 233, 235 (C.A. 3, 1965); Rev. Rul. 64-308, 1964-2 C.B. 176.
I believe the majority opinion sanctions an income tax on the long-term appreciation in value of decedent’s stock contrary to the intent expressed in Code sections 1014(a) and 2031 that unrealized gain included in computing the estate tax should not be subjected to another tax when such gain is subsequently realized by the estate or a legatee. Cf. Levin v. United States, 373 F. 2d 434 (C.A. 1, 1967), reversing 254 F. Supp. 640 (D. Mass. 1966).
Drennen, Withey, FORRESTER, Fay, and Tannenwald, JJ., agree with this dissent.We need not now decide what the result would be if decedent had been the controlling shareholder in the corporations.