dissenting: I respectfully dissent. The majority does not find that the transaction between the petitioners and the temple was a sham, or that there was reason to believe that the purchase price could not be met from the earnings of the business. In fact, during the years in issue the scheduled payments were made (except for certain limited amounts petitioners permitted to be withheld to be used in the business) out of the more than adequate earnings of the business. Contrast Kolkey v. Commissioner, 254 F. 2d 51 (C.A. 7, 1958), affirming 27 T.C. 37 (1956).1
If I am correct in reading tbe majority opinion as not bolding that tbe transaction was a sbam, tbe only legitimate distinction between tbe facts in tbe current case and those in Commissioner v. Brown, 380 U.S. 563 (1965), is tbe greater extent bere of tbe inferred excess 2 of tbe purchase price oyer fair market value.3 Tbe Supreme Court noted in Brown that tbe appraised value of tbe business relied upon by buyers and sellers was $1,064,877 against tbe sales price of $1,301,989.
Tbe price for tbe stock in the present case appears to be about twice its fair market value. This is not tbe first case to involve this much price disparity. Tbe price paid in Union Bank v. United States, 285 F. 2d 126 (Ct. Cl. 1961), namely $2,050,000 plus book value of tbe assets, was double tbe fair market value of $1,174,006.23. Tbe Court of Claims said (p. 128): “Tbe fact that a purchaser of an asset pays more for it than it is worth does not, of itself, convert tbe sale into something other than a sale, for tax purposes.”
In a court-reviewed decision, Clay B. Brown, 37 T.C. 461, 485 (1961), this Court stated:
It may be, as respondent contends, that petitioner would have been unable to sell the stock at as favorable a price to anyone other than a tax-exempt organization. This fact does not indicate that there was no business purpose in the sale. As the Court stated in Gregory v. Helvering, supra, “The legal right of a taxpayer to decrease the amount of what otherwise would be Ms taxes, or altogether avoid them, by means wMch the law permits, cannot be doubted.” Certainly, the right of a taxpayer by legal means to increase the amount received from a transaction over what he might have received from a different transaction is fundamental. So long as a sale to an exempt organization of stock in a corporation engaged in a commercial business is legal, such a sale, where it is in substance as well as in form a sale, is not to be ignored for tax purposes solely because the exempt organization is willing to pay a somewhat Mgher price than someone else might pay.
We tben. went on to quote witb approval at page 487 tbe following unequivocal language in Union Bank v. United States, supra:
From the standpoint of the Goldenbergs, they were, before the 1951 transaction, the owners of valuable properties and a valuable going business. * * * After the 1951 transaction the Goldenbergs had no interest in these assets, except a security interest, the power to take them back in case of default in payment for them. If they increased in value because of general prosperity or business success, or in dollar value because of inflation, the Goldenbergs would get no part of that important incident of ownersMp. * * *
We think it is logically and legally impossible for an owner to part with his property, for a consideration, without selling it. The consideration which he gets for parting with his property is not income from the property, but is the price of his parting with the property.
Were it not for tbe subsequent opinions in the Brown case, I would see no reason for the Court to repudiate the views expressed in our own opinion in Clay Brown and in Union Bank merely because the purchase price in the present case was higher than a nonexempt purchaser would probably have been willing to pay. The majority herein finds that the Supreme Court opinion, in Brown warrants our holding that the greater purchase price changes the result. As I see it, the critical question is whether there is anything in the Ninth Circuit or Supreme Court opinions in the Brown case which requires us to repudiate the views expressed in our own opinion in Clay Brown and by the Court of Claims in Union Bank.
The Ninth Circuit assumed the price in Brown was excessive, and, nonetheless, held for the taxpayer. Judge Duniway in his opinion for the Ninth Circuit (Commissioner v. Brown, 325 F. 2d 313, 316 (C.A. 9, 1963)) stated:
There is no question that this transaction took the form that it did because the Institute is a tax-exempt corporation and that the price to be paid was probably greater for that reason.
The Supreme Court referred to the statement in the Tax Court opinion that the sales price was ’‘within a reasonable range in the light of the earnings history of the corporation and the adjusted net worth of its assets.” Commissioner v. Brown, 380 U.S. 563, 569 (1965). In my opinion, the Supreme Court’s discussion of this point is not alone sufficient to justify the conclusion that the mere existence of a higher price than a nonexempt buyer would have paid is enough to upset a sale, as long as it is not sham.4
In the first place, it is clear that there was in the present case a realizing and recognizing disposition of stock in exchange for a cash consideration. The Supreme Court’s reliance on LeTulle v. Scofield, 308 U.S. 415 (1940), and Marr v. United States, 268 U.S. 536 (1925), in Brown (380 U.S. 563, 574-575) underscores tbe fact that the tax law simply does not have a category of bona fide dispositions of property for cash which are not sales.
Secondly, the Supreme Court’s statement (380 U.S. 563, 579) that new doctrines in this area should be left to Congress to initiate is fully applicable here. Following the Olay Brown decision, the Treasury Department proposed legislation to avoid the consequences of that decision, and that proposal was eventually enacted by the Congress.5 At the time of the Treasury proposal, there had already been some cases in which the purchase price substantially exceeded the fair market value of the business sold. Yet, the Treasury proposal, as well as the legislation ultimately enacted, drew no distinction between the cases in which the purchase price equaled or exceeded the fair market value. In all cases, the seller was allowed to continue to treat the transfer as a sale; the attack was on the tax consequences for the purchasing exempt organization. Congress may have thought that the seller should not be denied capital gains treatment of the sale merely because someone else was willing to pay more for the business. Furthermore, Congress made the new rules applicable to all exempt organizations beginning with the year 1972, but chose not to make them applicable to a transaction such as is involved in this case prior to that year.
The Supreme Court emphasized that the term “sale” in the tax law was not a word of art, but was to bear its generally accepted meaning of “a transfer of property for a fixed price in money or its equivalent” (380 U.S. 563, 571). See Helvering v. Flaccus Leather Co., 313 U.S. 247, 249 (1941). Clearly, the transaction here meets that definition and the majority opinion, contrary to the Supreme Court’s precept, is for the first time launching a new “for tax purposes only” construction of the word “sale.”
I conclude that the Supreme Court’s reasoning not only does not require us to repudiate our previous agreement with the principle set forth in the Union Bank case and the views which we expressed in Clay Brown, hut that the reasoning underlying the Supreme Court’s holding in Brown confirms the correctness of that principle and these views.
The majority also relies on Rev. Rui. 66-153, 1966-1 C.B. 187, which purports to limit the holding of Brown to cases where the purchase price did not exceed fair market value. This self-serving ruling, however, cites no authority for its position and further overlooks the fact that the Brown case itself involves a sales price in excess of cash fair market value.
Forrester, Fay, Tannenwald, Simpson, and Sterrett, JJ., agree with this dissent.In V. H. TrU3Chel, 29 T.C. 433,440 (1957), the Tax Court described tbe purported sale in Kolkey as “only a sbam.”
I note that such excess rests on a condusory finding oí fact, unsupported by any subsidiary findings.
The majority’s reliance on the importance to the business of petitioners’ continued managerial services overlooks the fact that in Brown it was also found necessary to insure, through an employment contract, the continued management of the operating company by Mr; Brown.
Indeed, Mr. Justice Goldberg so stated in his dissenting opinion, as follows (Commissioner v. Brown, 380 U.S. 563, 588-589 (1965)):
“Although the Court implies that it will hold to be ‘sales’ only those transactions in which the price is reasonable, I do not believe that the logic of the Court’s opinion will justify so.restricting its holding. If this transaction is a sale under the Internal Revenue Code, entitling its proceeds to capital gain treatment because it was arrived at after hard negotiating, title in a conveyancing sense passed, and the beneficial ownership was expected to pass at a later date, then the question recurs, which the Court does not answer, why a similar transaction would cease to be a sale if hard negotiating produced a purchase price much greater than actual value. * * *”
It can be argued that the existence of such a higher price, in the case of a nonsham sale, would not even furnish a basis for treating a portion of the purchase price as ordinary income on the ground that such price is based upon an attribute possessed by the buyer independently of any consideration or benefit emanating from the seller. The possibility of an allocationis adverted to by Mr. Justice Harlan in his concurring opinion in Broion. See 380 U.S. at 580-581. No issue as to allocation was presented herein.
Sec. 514, enacted as sec. 121(d) of the Tax Reform Act of 1969. See Tax Reform Studies and Proposals, U.S. Treasury Department, part 3, 91st Cong., 1st Sess., pp. 306-309 (Comm. Print 1969); H. Rept. No. 91-413 (Part 1), 91st Cong., 1st Sess., pp. 45-46 (1969); S. Rept. No. 91-552, 91st Cong., 1st Sess., pp. 62-63 (1969).