dissenting in part: I think the majority has illogically bifurcated identical exchanges of “property” which occurred simultaneously. The purpose of section 1031(a) is to defer recognition of gain or loss where a taxpayer makes a direct exchange of property with another party. Leo A. Woodbury, 49 T.C. 180, 197 (1967), acq. 1969-2 C.B. xxv. In the past the courts hare consistently attempted to focus on the actual substance of the transactions effected, notwithstanding the myriad of techniques used. Cf. Frederick R. Horne, 5 T.C. 250 (1945) (collapsing a closely timed purchase and sale of a commodity exchange seat to deny a claimed loss); Alderson v. Commissioner, 317 F. 2d 790 (C.A. 9, 1963), reversing 38 T.C. 215 (1962) (finding a “like kind exchange” where a Sale was transformed into an exchange when the prospective buyer, with substantial assistance from the taxpayer, was able to acquire and convey other suitable farm property to the taxpayers in an exchange rather than a straight sale); Coastal Terminals, Inc. v. United States, 320 F. 2d 333 (C.A. 4, 1963) (holding a sec. 1031(a) exchange took place where an oil company received options for land and materials for construction of three inland terminal facilities and an operating terminal from the taxpayer and carried out this construction, thereafter transferring the completed facilities back to the taxpayer in exchange for a deepwater terminal held by the taxpayer); Redwing Carriers., Inc. v. Tomlinson, 399 F. 2d 652 (C.A. 5, 1968) (combining separately stated purchases and sales of new and used trucks by a parent corporation and its subsidiary to deny a claimed loss where in substance there was merely an exchange under sec. 1031(a)); and Leslie Q. Coupe, 52 T.C. 394 (1969), acq. 1970-1 C.B. xv (permitting nonrecognition-of-gain treatment where a contract of sale for certain farm property was reformed so as. to permit the taxpayers to exchange their property with third parties who in turn conveyed this property to the purchaser under the original sales contract for cash). That course has not been followed here.
In this case the majority opinion specifically points out that what is of crucial importance to its finding that an exchange of one general partnership interest for another such interest qualifies as a “like kind” exchange under section 1031 (a) is the fact that the underlying assets of each partnership, i.e., rental real estate, are the same. The identical rationale is applicable to the exchange by Meyer, Sr., of his part of the general partnership interest for a limited interest in the Hillgate partnership. But, rather than apply this logic to both exchanges, the majority has opted to distinguish one transfer from the other on the basis of the different characteristics of the general and limited partnership interests exchanged. Such distinctions cannot constitute the focal point of this issue, given the majority’s ratio decidendi for holding the trading of general partnership interests to be a “like kind” exchange. The exchange of the limited partnership interest for the general partnership interest here involved appears to me to be no more than an exchange of “like kind” property of different quality, grade, or value. Sec. 1.1031 (a)-(l) (b), Income Tax Regs.1
The majority treads gingerly on this issue and at the conclusion of the opinion indicates that if the facts were more detailed regarding the actual undertakings of the limited partner here involved, a different result might obtain. I cannot agree with such hedging. The transaction which occurred on December 31,1963, left Meyer, Jr., and Meyer, Sr., with smaller interests in the Rollin E. Meyer & Son partnership and newly acquired interests in the Hillgate Manor Apartments, a California limited partnership. The stipulated facts indicate the partnerships owned the rental property constituting their underlying assets and therefore the interests acquired by Meyer, Sr., and Meyer, Jr., were partial fee interests.2 I would require no more for the exchange by Meyer, Sr., to qualify for nonrecognition-of-gain treatment under section 1031 (a) .3
It should be noted that although the regulations provide that an exchange of different classes of property does not qualify for nonrecognition-of-gain treatment, Webster’s New Collegiate Dictionary (1963 ed.) defines class as “a division or rating based on grade or quality.”
Had Meyer, Sr., formed a corporation to which he transferred his general partnership Interest and then had that corporation exchange part of Its general partnership interest for a general partnership interest in Hillgate, under the majority’s holding in this case, such an exchange should qualify for nonrecognition-of-gain treatment. As a result of the above transaction, Meyer, Sr., could end up with limited liability as a shareholder of the new corporation, could effect a tax-free exchange of the partnership interests, and might be able to retain the tax benefits of partnership status by having the new corporation make an election under subch. S to be taxed as an electing small business corporation, so long as no more than 20 percent of that corporation's gross receipts come from rental or other types of passive investment income. Sec. 1372(e) (5).
Compare Rev. Rui. 72-199, 1972-1 C.B. 228, permitting nonrecognition of gain under sec. 1036 where two classes of common stock are exchanged although one class has voting, preemptive, and broader stock dividend rights.