dissenting. I have no quarrel with the lesson which the majority draws from the legislative history of section 265 and its predecessors or from the decided cases. My disagreement stems from the manner in which the lesson is applied to the facts herein. In the first place, I think the majority has placed far too much weight on the small amount of Bache’s purchases of tax-exempt securities in relation to the totality of its business operations. In the second place, the analogy between Bache and a bank, while it may have a seductive appeal, is, in my opinion, misplaced. Bache may well be classified as a “financial institution” in a broad sense, but no elaborate comparison of the commonly known functions of a bank and a brokerage firm is needed to point up the marked differences between the two. Moreover, even assuming that a bank’s relationship to its depositors is that of “borrower-lender” — a concept that has been the subject of great dispute — at least one further notable difference emerges. A bank’s “borrowings” precede and generate the purchase of the tax exempts. In this case, Bache’s purchase of the tax exempts preceded and generated the borrowing.
Bache, as an ongoing integral part of its business operations, regularly purchased tax-exempt securities in the course of its participation in underwriting securities and also regularly bought tax-exempt securities to help maintain a market in the issues of this type in which it was interested. It cannot be gainsaid that such purchases were for its own account and not for the account of customers. The fact that it had a house rule pursuant to which it sought to sell tax-exempt securities thus purchased within 90 days does not militate against this conclusion. It is clear that Bache calculated its borrowing needs in terms of its daily cash requirements, of which cash used to purchase tax exempts was one. Under these circumstances, there is a sufficiently direct identification between the purchases and the borrowings to warrant the application of section 265(2) and I would therefore sustain respondent’s determination. Cf. Paul P. Prudden, 2 B.T.A. 14 (1925).
Nor does the legislative history eliminating interest from the allocation provision of section 265(1) require a contrary result. That section was intended to preclude the disallowance of a portion of interest paid or accrued merely because a taxpayer happened both to have purchased tax-exempt securities and borrowed funds in the same year. Where, as here, a portion of borrowings can be identified with such purchases, it does not prevent disallowance any more than it would in the case where a taxpayer makes a single borrowing of $100,000 and, in accordance with a predetermined plan, uses $50,000 to purchase tax-exempt securities and $50,000 for other purposes.
B.aum and Scott, //., agree with this dissent.