dissenting. It may well be that shares in an open-end investment company are “a different breed of cats from ordinary stocks and bonds” but it does not follow that they are the same breed of cats as life insurance and annuity contracts. It is this assumption as to identity of “breed” which, to my mind, invalidates the decision of the majority herein.
I do not dispute the principle that respondent’s regulations should be sustained unless they are unreasonable. But it does not follow that, because respondent has a choice of alternatives, his choice should be sustained where the alternative chosen is unrealistic. In such a situation the regulations embodying that choice should be held to be unreasonable. In my opinion, the regulations involved herein are clearly unrealistic as applied to the factual situation involved herein and therefore to that extent unreasonable.
The touchstone of fair market value has always been the price which a willing seller could reasonably be expected to be able to obtain from a disposition of the property in question. Thus, if shares of stock are subject to a binding restriction, which is the product of an arm’s-length transaction, that the shares may not be sold without offering them to a third person at a certain price, that price becomes the ceiling for determining the fair market value of the shares for estate tax purposes. Sec. 20.2031-2(h), Estate Tax Regs.; Rev. Rul. 59-60, 1959-1 C.B. 237; see 2 Casner, Estate Planning 945-951 (1961 ed.). Similarly, when the open-market price of bonds is less than par but the bonds can be applied at par in payment of the decedent’s estate tax, the par value is includable in the gross estate. Bankers Trust Co. v. United States, 284 F. 2d 537 (C.A. 2, 1960), certiorari denied 366 U.S. 903 (1961); Candler v. United States, 303 F. 2d 439 (C.A. 5, 1962).
The rationale of Bankers Trust was that because the bonds could be redeemed at par in payment of estate taxes, they were worth more (i.e., the estate could reasonably be expected to obtain more) than the discounted price in the open market. It considered this an important element of value and applied respondent’s own regulation that—
All relevant facts and elements of value as of the applicable valuation date should be considered in every case. [See 284 F. 2d at 538; sec. 20.2031-1 (b), Estate Tax Begs. Emphasis supplied.]
I think the same rationale should apply here. The majority has found that, “Except for a negligible number of transfers between individuals, all transactions with respect to open-end investment companies or mutual fund shares take place with the particular open-end investment company or mutual fund whose shares are involved.” “Negligible” means “of so little substance or extent or worth as to be practically nonexistent.” Webster’s 3rd New International Dictionary (1965). In light of the majority finding, we need not speculate on what our decision would be in a case where there was proof of some market in which the shares of an open-end investment company could be sold in addition to the availability of redemption by the company.
In the life insurance cases, the courts were obviously influenced by the facts that the insurance is a different “breed” due to the element of insurability, or lack thereof, of the insured at the time of the transfer and the significant increment which would be received on the death of the insured; that, shortly before the policy was transferred, the taxpayer had paid a substantially higher price for the insurance than its cash surrender value; and that there was no evidence that the policy could not have been sold, albeit in a limited market, at its replacement value or at least at a price in excess of its cash surrender value. United States v. Ryerson, 312 U.S. 260 (1941), decided on the same day as Guggenheim v. Rasquin, 312 U.S. 254 (1941); DuPont's Estate v. Commissioner, 233 F. 2d 210 (C.A. 3, 1956). In this connection, it is not without significance that the Internal Revenue Code itself recognizes that life insurance policies are transferable for a valuable consideration. Sec. 101 (a), I.R.C. 1954.
The cases involving excise taxes (Publicker v. Commissioner, 206 F. 2d 250 (C.A. 3, 1953); Duke v. Commissioner, 200 F. 2d 82 (C.A. 2, 1952); and Estate of Frank Miller Gould, 14 T.C. 414 (1950)) simply decided that, in the absence of any other probative evidence of fair market value, the price that the taxpayer paid was determinative of that value. They are therefore clearly distinguishable.
The language from Mearkle's Estate v. Commissioner, 129 F.2d 386, 388 (C.A. 3, 1942), quoted in the majority opinion, must be considered in the context of the factual situation involved in that case. The question before the Court of Appeals was whether replacement cost was a proper measure for valuing annuity policies for estate tax purposes. Citing the life insurance cases, the Court of Appeals emphasized that it had not been shown that the differences in life insurance and annuity contracts were of such significance as to justify a different method of valuation — i.e., they were “the same breed of cats.” Herein lies the critical difference — in this case we have proof of a different breed.
The reference to section 20.2053-3 (d) (2), Estate Tax Regs., furnishes scant, if any, support for the majority view. In the first place, the fact that respondent may have thus sought to cushion the effect of section 20.2031-8 (b) does not justify a departure from the usual fair market value standard. In the second place, an equivalent countervailing loss will be available only if spread between the redemption price and the “offering price” is no less on the date of actual redemption that it was on the valuation date for estate tax purposes — a situation which is by no means guaranteed. In the third place, the loss is available only to the estate and then only under the limited conditions prescribed by the first sentence of section 20.2053-3 (d) (2);1 it is of no benefit to a beneficiary of the estate to whom the shares are distributed.
The emphasis by the majority on the fact that the estate and the beneficiaries may continue to own the mutual fund shares and thereby enjoy the benefits of ownership is, in my opinion, wholly misplaced. These possibilities exist with respect to every type of security. If the majority standard is correct, it would be no less “appropriate” to use replacement cost with respect to marketable securities of all kinds. This, however, is simply not the law. That there may be an equivalence of replacement cost and fair market value in some situations does not justify the substitution of the former for the latter as the criterion in other situations where different considerations are involved.
The plain fact is that, on the record in this case, petitioner could not dispose of the open-end investment company shares except by way of a sale to the open-end investment companies at the redemption price. That price was all that petitioner could obtain. It is the total amount obtainable by the seller from the only available actual purchaser, not the price which a theoretical purchaser would pay another seller, which should control. See Report of the Committee on Estate and Gift Taxes, 19 A.B.A. Tax Bull. 73-76 (No. 4,1966).
I would hold for petitioner.
Bkennen, Atkins, Foerester, Fat, and IRWIN, JJ., agree with this dissent.The first sentence of sec. 20.2053-3(d) (2), Estate Tax Regs., reads: “Expenses for selling property of the estate are deductible if the sale is necessary to pay the decedent’s debts, expenses of administration, or taxes, to preserve the estate, or to effect distribution.”