concurring: I agree that section 269 cuts across section 381 and that it serves a useful purpose for the Court as a whole to formalize this principle, which has thus far only been assumed or implied in the decided cases.
Whether this case fits the mold of section 269 is a more difficult question. I have serious doubts that the cancellation of the agreements with the employees meets the requirement of control within the intendment of section 269(a) (1). It may well be that, because of the employer-employee relationship, the substantial unpaid purchase price, and the absence of personal liability on the part of the employees to make payment, the agreements never deprived petitioner of the requisite control. However, since the petitioner did not argue this issue (see fn. 11 to the majority opinion), there is no need for us to resolve it.
As I read the majority opinion, the timing of the repossession of the employees’ shares and of the purchases from Northwest and BCC does not per se require the conclusion .that the proscribed purpose under section 269 existed, but is merely one fact to be taken into account in evaluating whether the principal purpose of these acquisitions was “evasion or avoidance of Federal income tax.” On this issue, therefore, the majority decision merely reflects an ultimate finding of fact by the trial judge based on his determination of the relative weight to be given to the various factual elements involved. Accordingly, I concur in that decision, although I, myself, might well have been inclined to accord different relative weight to those elements and to make a contrary determination.
DeeNNEN, Foerester, Fay, FbatherstoN, and Sterrett, JJ., agree with this concurring opinion.