concurring: While normally I would expect this Court to reexamine its views on a particular issue each time a Court of Appeals adopts the opposite view, I think it is a little late in the life of this issue, which has become extinct by act of Congress, for this Court to go through the formalities of reexamining its views and overruling three quite recent opinions of this Court on the issue, when the same result can be reached in another way.
Appeal of this case would, in the absence of agreement between the parties to the contrary, lie in either the Court of Appeals for the Fifth Circuit or the Court of Appeals for the Sixth Circuit, both of which courts have decided this issue in favor of respondent. See Commissioner v. Dodd, 410 F. 2d 132 (C.A. 5, 1969), and Wilson v. Commissioner, 412 F. 2d 314 (C.A. 6, 1969), respectively. I would decide this case for respondent on the theory that, regardless of the views of this Court on the merits of the issue, the conclusions of the Courts of Appeals on the issue is the controlling law for cases arising in those circuits. This would be a modification of the rule this Court announced in the oft-discussed case of Arthur L. Lawrence, 27 T.C. 713, which I would approve. See last paragraph of Judge Simpson’s concurring opinion in Norvel Jeff McLellan, 51 T.C. 462.
Baum and Forrester, JJ., agree with, this concurring opinion.