concurring in the result: I believe the liquidation gains did constitute income in respect of a decedent. However, some of the language in the Court’s opinion could be construed as going farther than I would in stating the criteria for distinguishing income in respect of a decedent from mere unrealized appreciation in value of property. The issue, as properly framed by the Court’s opinion, is whether at death decedent had a right to receive the Bi-State liquidation proceeds. Under Nebraska law, the filing of a statement of intent to dissolve without more obligates the corporation to cease doing business and distribute its assets to its shareholders. Nebraska Business Corporation Act, Neb. Rev. Stat. secs. 21-2085 and 21-2086 (1974). Should the corporate directors fail to make such a distribution, within a reasonable period the shareholders would apparently be able to sustain an action to compel such a distribution in the absence of shareholder action reversing the original dissolution resolution. At that point the shareholders are vested with a legal right to the proceeds, and the postdeath gains are income in respect of a decedent. The case is analogous to the execution of an enforceable executory contract of sale. Trust Co. of Georgia v. Ross, 392 F. 2d 694 (5th Cir. 1967), cert. denied 393 U.S. 830 (1968). However, I do not consider it significant that decedent, as Bi-State’s sole shareholder, had the power to compel payment of the liquidating distribution when he died, for any sole shareholder, as a practical matter, has such power at all times. Reference to the sole shareholder’s power proves too much. He has the effective power, for example, to cause an ordinary dividend to be declared. But when no formal directors’ action declaring such a dividend has been taken, a postdeath declaration would not give rise to income in respect of a decedent, for the decedent had no right at death to such a distribution. What counts is whether the formal corporate actions have been taken which, would give even a minority shareholder the legal right to compel a liquidating distribution. References to cases holding that a “right” need not be a “legal” right are also inapposite here in the context of realization of gains on appreciated property. Such cases involve compensation income. Indeed, it may well be that even in the compensation cases a right existed to compensation in quantum meruit, as evidenced by the very postdeath, nondonative payment which was held to be income in respect of a decedent. In any event, short of the existence of a fixed, predeath legal right to the proceeds of a sale or exchange, I would not consider realization of gains on the sale or exchange of property to be income in respect of a decedent.
Wilbur, J., agrees with this concurring opinion.