concurring: What is the responsibility of a court in construing a statute — should the court construe it literally, leaving to Congress to alter the results if it wishes to do so, or should the court go beyond the literal meaning of the words of the statute in an attempt to carry out the purpose of the legislation? That is the fundamental issue raised by this case. I applaud the conclusion of the majority, but I would like to add my own thoughts in support of it.
The approach of construing the statute literally and leaving to Congress the alteration of any undesired results ignores the basic division of responsibilities in our constitutional system. Congress is constituted as a large body elected by the people and accountable to them from time to time. When it acts, it reflects the diverse views and interests of the multitudes of people in this country. It has innumerable and momentous decisions to make each session concerning matters of foreign policy, defense, regulation of trade, and economic policies. In these areas, it charts the general course to be followed by our Government.
In our system of government, the courts are given the responsibility of deciding cases in accordance with the law, including those principles set forth in the Constitution and the acts of Congress. In exercising that responsibility, we inevitably discover situations not contemplated by the draftsmen of the law. When we do find one of those situations, we should attempt to determine how Congress intended for it to be handled within the general policies adopted by the Congress, and if we can find the legislative purpose with reasonable certainty, we should assist in carrying out the purposes of the law by adopting such an interpretation of the statute. As stated by Mr. Justice Holmes, “The very office of construction is to work out, from what is expressly said and done, what would have been said with regard to events not definitely before the minds of the parties, if those events had been considered.” Holmes, The Common Law 303 (1881).
To refuse to go beyond the literal meaning of the words ignores the concept which was perhaps expressed best by Judge Learned Hand when he wrote that “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.” Helvering v. Gregory, 69 F. 2d 809, 810-811 (C.A. 2, 1934), affd. 293 U.S. 465 (1935). Such a refusal makes it necessary for Congress to become involved in every detail of tax policy. In the area of the tax laws, Congress has already chosen to legislate with a great deal of particularity; nevertheless, it should not be burdened with the necessity of considering additional details of the law. Congress can and should expect us to assume a responsible role in this constitutional system of government of attempting to carry out the general policies decided upon by the Congress.
Everybody deplores the complexity of the tax laws, but if we make it necessary for Congress to write every rule in detail, then we contribute toward that complexity. If we blindly adopt a literal approach to the statute, then we force upon Congress the task of adding another provision to alter the unintended result adopted by us.
The cases are legion in which the courts have assumed the responsibility of attempting to carry out the purpose of the legislation, even though, it went beyond the words of the statute. In Corn Products Co. v. Commissioner, 350 U.S. 46 (1955), the Supreme Court held that the income which the corporation realized from trading in commodity futures should be treated as ordinary income, and not as long-term capital gains. The Court said at pages 51-52:
Admittedly, petitioner’s corn futures do not come within the literal language of the exclusions set out in * * * [present section 1221]. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. Buit the capital-asset provision * * * must not be so broadly applied as to defeat rather than further the purpose of Congress. * * *
Cf. Pridemark, Inc. v. Commissioner, 345 F. 2d 35 (C.A. 4, 1965), affirming on this issue 42 T.C. 510 (1964) (relating to the definition of property in section 331). In Higgins v. Smith, 308 U.S. 473 (1940), the Supreme Court believed that alleged losses in sales between a 100-percent shareholder and his corporation should not be taken into consideration for tax purposes, even though a literal reading of the statute would have allowed them. Under the reorganization provisions, the courts have added to the statutory requirements the requirement that there must be a continuity of interest for a transaction to qualify as a reorganization. LeTulle v. Scofield, 308 U.S. 415 (1940); Pinellas Ice Co. v. Commissioner, 287 U.S. 462 (1933). Although the language of section 337 provides that (except in the case of certain properties) no gain is recognized to the corporation on a qualified transfer, the tax-benefit rule has been applied by the courts to require recognition of the gain on the sale of expensed items. Spitalny v. United States, 430 F. 2d 195 (C.A. 9, 1970); Anders v. Commissioner, 414 F. 2d 1283 (C.A. 10, 1969), reversing 48 T.C. 815 (1967), certiorari denied 396 U.S. 958 (1969).
This approach of assuming the responsibility of attempting to carry out the purpose of the legislation is, of course, applied without regard to whether the result benefits the Government or the taxpayer. For example, in First Nat. Bank v. Commissioner, 104 F. 2d 865 (C.A. 3, 1939), the taxpayer convinced the court that the words “substantially all of the assets” in the reorganization provisions meant substantially all of the business assets, and the court held that the transaction qualified as a tax-free reorganization. In Estate of Robert Rodger Glen, 45 T.C. 323 (1966), we found that when Congress provided that a relinquishment of marital rights should not be treated as consideration, the purpose of the provision was to apply to voluntary transfers, and not to arm’s-length contracts; and for that reason, we did not apply the provision to an arm’s-length arrangement, even though the statute contained no exception for such a transaction. Compare United States v. Allen, 293 F. 2d 916 (C.A. 10, 1961).
As a court, we must follow the results intended by Congress, even tbougb at times those results may appear to be paradoxical. Thus, we recognized the existence of multiple trusts for tax purposes, even though it was argued that they undermined the effect of the graduated tax. Estelle Morris Trusts, 51 T.C. 20 (1968), affirmed per curiam 427 F. 2d 1361 (C.A. 9, 1970); see American Automobile Assn. v. United States, 367 U.S. 687 (1961). Also,’there are occasions when we caimot ascertain the intention of the legislation, and on such occasions, we must leave the problem to Congress to resolve. See S.F.H., Inc., 53 T.C. 28 (1969); see also Commissioner v. Brown, 380 U.S. 563 (1965).
Our touchstone is what was the purpose of the legislation. If we can ascertain that purpose, we are not without power to carry it out; indeed, it is our responsibility to do so. Helvering v. Clifford, 309 U.S. 331 (1940). It is not judicial legislation for us to fill in the gaps, so long as we are ¡merely carrying out Hie legislative purpose.
Unfortunately, there is no precise objective method for learning the purpose of legislation; it calls for the exercise of judgment. In my judgment, I am convinced, for the reasons set forth in the majority opinion, that the purpose of section 165 is not to allow a corporation a deduction for a loss resulting from the sale of nonbusiness property. The failure of Congress to deal expressly with the matter over the years does not convince me that it intended to allow a deduction in this situation. In the early days of the tax laws, it was not recognized that a corporation would hold nonbusiness property, and although such a practice may have become more common in recent years, Congress has not undertaken to deal with the matter of whether corporate deductions under section 165 should be restricted to business losses. Compare S. Rept. No. 552, 91st Cong., 1st Sess. (1969), 1969-3 C.B. 423, 490. Clearly, the silence of Congress does not indicate that it intended to ¡allow a corporate deduction for nonbusiness losses.
DawsoN and Hoyt, JJ., agree with this concurring opinion.