dissenting in part: While the issue is not entirely free from doubt, I accept the majority conclusion that the proceeds of the liquidation are “income in respect of a decedent” within the meaning of section 691. Prior to the decedent’s death, both the directors and the shareholders had not only resolved to liquidate Bi-State but had specifically provided in the respective resolutions that all of Bi-State’s assets be sold, that the officers of Bi-State be “authorized and directed to file a Statement of Intent to Dissolve and Articles of Dissolution pursuant to the Nebraska Business Corporation Act” (emphasis supplied), and that the debts of Bi-State be paid and “the remaining assets * * * be distributed * * * as soon as practicable but in no event later than the termination of a twelve-month period.” Additionally, also prior to decedent’s death, the statement of intent to dissolve had been filed with the secretary of state of Nebraska. Finally, at the times the resolutions were adopted and the statement of intent to dissolve filed and at the time of his death, decedent was the sole shareholder of Bi-State. To be sure, under section 21-2088, Nebraska Business Corporation Act, Bi-State’s board of directors could have revoked the dissolution proceeding after decedent’s death and prior to the filing of the certificate of dissolution. But, in my opinion, this possibility is not enough to obviate the conclusion that, under the circumstances herein, decedent’s right to receive the liquidation proceeds had so matured as to make him “entitled” to such proceeds and thus bring the transaction within section 691. See sec. 1.691(a)-l(b), Income Tax Regs.
The fact that the right to proceeds of liquidation may not have sufficiently ripened to require them to be included in decedent’s income on the theory of constructive receipt (decedent being a cash basis taxpayer)1 or as accrued income (had decedent been an accrual basis taxpayer) is beside the point. The legislative history of the predecessor of section 691 (sec. 126, I.R.C. 1939) shows clearly that the applicable standard for taxing income in respect of a decedent was. intended to be broader and to cover “All amounts of gross income which are not includible in the income of the decedent. ’’(Emphasis added.) See H. Rept. No. 2333, 77th Cong., 2d Sess. 84 (1942); S. Rept. No. 1631,77th Cong., 2d Sess. 101 (1942). See also Commissioner v. Linde, 213 F. 2d 1, 6 (9th Cir. 1954).
In the foregoing context, I believe Keck v. Commissioner, 415 F. 2d 531 (6th Cir. 1969), revg. 49 T.C. 313 (1968), and W. B. Rushing, 52 T.C. 888 (1969), affd. 441 F. 2d 593 (5th Cir. 1971), are distinguishable. In those cases, the decedent (Keck) and the transferor (Rushing) did not have such control and the right to receive the amounts in question could have been varied or even destroyed by the action of independent third parties.2 The circumstances herein are more closely akin to those involved in Hudspeth v. United States, 471 F. 2d 275 (8th Cir. 1972), and I would apply the rationale of that case. In so stating, I recognize that there may be a distinction, due to the involuntary nature of death, between a situation involving the applicability of section 691 and one involving a claimed assignment of income (Hudspeth) but, in the instant situation, I think it is a distinction without a difference.
My disagreement with the majority goes to the issue of how the estate tax deduction under section 691(c) should be applied. The majority rests its decision in favor of the petitioners on the ground that, since section 691(c) does not indicate that the estate tax deduction can only be used to offset section 691(a) income items, a taxpayer should have a choice and be able to use the deduction in the way most advantageous to him, i.e., by applying it first to ordinary income and using the balance of the deduction against long-term capital gain. In thus giving effect to section 691(c), the majority ignores the plain mandate of section 1201(b).3
In Read v. United States, 320 F. 2d 550 (5th Cir. 1963), the alternative tax applied4 and the taxpayer sought to offset the entire estate tax deduction against the long-term capital gain. The Court of Appeals rejected the Government’s contention that the estate tax deduction could be taken only against ordinary income.5 In effect, the Court of Appeals held that, in applying the alternative tax, section 691(c) was self-contained, i.e.-, the estate tax deduction should be offset against the long-term capital gain, and disagreed with the contention that the estate tax deduction was to be treated like any other deduction, with the result that it could not be used in the alternative tax computation.
In Meissner v. United States, 364 F. 2d 409 (Ct. Cl. 1966), it appears that the taxpayer sought, as had the taxpayer in Read, to offset the estate tax deduction against its long-term capital gain in determining the amount of tax due under the alternative tax computation. The Government again asserted the position it had taken in Read, and the Court of Claims, following the Court of Appeals in that case, held for the taxpayer. However, because sizable amounts of ordinary income were involved and because the amount of the refund would have to be determined in subsequent proceedings (see 364 F. 2d at 410 n. 2, and 412), the Court of Claims went on to express its views on the issues involved in the instant case. Describing what it was doing as a possible “refinement to Read” (see 364 F. 2d at 414), the Court of Claims reasoned that, in computing the alternative tax, the estate tax deduction was to be allowed first against ordinary income and, to the extent not so used, against the long-term capital gain.
In Goodwin v. United States, 458 F. 2d 108 (Ct. Cl. 1972), it is unclear whether only the regular income tax was involved or both the regular income tax and the alternative tax as in Meissner. The main issue was whether the estate tax deduction came “off the bottom,” i.e., after the application of the 50-percent long-term capital gain deduction under section 1202, as contended by the taxpayer, rather than “off the top,” i.e,, before the application of such capital gain deduction, as contended by the Government. See Quick v. United States, 360 F. Supp. 568, 570 (D. Colo. 1973), affd. 503 F. 2d 100 (10th Cir. 1974). The Court of Claims applied the rationale of Meissner and sustained the taxpayer.
In Quick v. United States, 503 F. 2d 100 (10th Cir. 1974), the Tenth Circuit Court of Appeals followed Goodwin in a situation where the alternative tax was not involved and rejected the Government’s contention on the ground that it would result in depriving the taxpayer of the full benefit of the section 691(c) deduction by, in effect, cutting it in half. This Court recently applied Quick in J. T. Bridges, Jr., 64 T.C. 968 (1975), where the alternative tax was likewise not involved.
Unquestionably, Meissner and possibly Goodwin, as well as the rationale of Quick and Bridges, depart from the concept of Read that section 691 is self-contained, with the result that the estate tax deduction should be treated as an offset against the item of income in respect of a decedent, in the sense that they treat the estate tax deduction like any other deduction, although Meissner and the reasoning of Goodwin also return to the offset technique by permitting the amount of the estate tax deduction not used against ordinary income to be offset against the long-term capital gain in computing the alternative tax. With all due respect, I think that this departure from Read is erroneous and that the majority herein is wrong in following the same path.
My own view is that Read reflects the correct approach, i.e., that section 691 should be treated' as self-contained, with the estate tax deduction offsetting the long-term capital gain. Compare Statler Trust v. Commissioner, 361 F. 2d 128 (2d Cir. 1966), revg. 43 T.C. 208 (1964), and United States v. Memorial Corp., 244 F. 2d 641 (6th Cir. 1957). This approach comports with the objective of allowing “an offsetting deduction” enunciated in the legislative history of section 691(c). See H. Rept. No. 1337, 83d Cong., 2d Sess. 64 (1954); S. Rept. No. 1622, 83d Cong., 2d Sess. 87 (1954). See also Read v. United States, 320 F. 2d at 553; Quick v. United States, supra. The net amount thus obtained is then carried out of section 691, included in income, and becomes subject to other allowable deductions.
Another possible approach is that reflected in Quick v. United States, supra, and J. T. Bridges, Jr., supra, where the taxpayer was allowed to move the estate tax deduction out of section 691 in order not to impair his right to its full benefit through the application of section 1202. But, as I see it, there is no basis for applying a different concept in synthesizing sections 691(c) and 1202 rather than sections 691(c) and 1201(b). In both situations, the basic question is what is the proper amount of the long-term capital gain which should be treated as income in respect of a decedent.6
In any event, I do not believe petitioners should be able to utilize the estate tax deduction in part to reduce their taxable income to zero under step 1 of the alternative tax computation (sec, 1201(b)(1)) and then use the balance of the estate tax deduction against their long-term capital gain under step 2. of that computation (sec. 1201(b)(2)). To allow petitioners to go this far violates the mandate of section 1201(b), which clearly eliminates any deductions (see Walter M. Weil, 23 T.C. 424 (1954), affd. 229 F. 2d 593 (6th Cir. 1956); Pope & Talbot, Inc., 60 T.C. 74 (1973), affd. per curiam 515 F. 2d 155 (9th Cir. 1975)), and enables them to have their cake and eat it too. With respect to the objective of achieving the same tax consequences to the estate or beneficiary which would have obtained if the decedent collected the income item prior to death (see, e.g., Read v. United States, 320 F. 2d at 553), there are so many permutations and combinations involved, due to variations in the composition of decedent’s income, deductions, and applicable tax brackets, as against those of the estate or a beneficiary, and in estate tax brackets, depending upon whether the decedent pays, or is obligated to pay, the applicable income tax prior to, or at the time of, his death, and the amount of that income, as to make impossible an all-inclusive illustrative calculation. But, the hard fact is that, under the majority approach, the estate or beneficiary gets an excessive benefit, since the alternative tax of 25 percent of long-term capital gain, by hypothesis, requires a higher rate of ordinary income tax. Thus, in every case where the alternative tax computation applies and the ordinary income tax rate exceeds 25 percent, which occurs at relatively low levels, to wit, $10,000 of taxable income in the case of estates and $16,000 in the case of married individuals filing joint returns, every dollar of the estate tax deduction attributable to a long-term capital gain item under section 691(c), allowed against ordinary income rather than as an offset in computing long-term capital gain, produces a greater tax benefit. To my mind, such a consequence is repugnant to section 1201(b) and is not required to satisfy the provisions of section 691(c).
I would sustain respondent’s computation in the instant case.
Raum, J., agrees with this dissent.Compare W. B. Rushing, 52 T.C. 888, 896-897 (1969), affd. 441 F. 2d 593 (5th Cir. 1971).
It is not without significance that in George W. Keck, 49 T.C. 313 (1968), revd. 415 F. 2d 531 (6th Cir. 1969), the dissenting judges in this Court specifically reserved the question whether they would hold to the same view if the decedent had been the controlling shareholder, which is the case herein. See 49 T.C. at 323 n. 1.
During the taxable years in question, that section read as follows:
SEC. 1201(b). Other Taxpayers. — If for any taxable year the net long-term capital gain of any taxpayer (other than a corporation) exceeds the net short-term capital loss, then, in lieu of the tax imposed by sections 1 and 511, there is hereby imposed a tax (if such tax is less than the tax imposed by such sections) which shall consist of the sum of—
(1) a partial tax computed on the taxable income reduced by an amount equal to 50 percent of such excess, at the rate and in the manner as if this subsection had not been enacted, and
(2) an amount equal to 25 percent of the excess of the net long-term capital gain over the net short-term capital loss.
Some confusion exists in the cases regarding the mandatory or elective nature of the alternative tax, but this is primarily due to the fact that where the alternative tax produces a result more favorable to the taxpayer, he will always use it. However, the alternative tax is required to be applied if it produces a lower tax. See Lone Manor Farms, Inc., 61 T.C. 436, 442 (1974), affd. without published opinion 510 F. 2d 970 (3d Cir. 1975). But see J. T. Bridges, Jr.,64 T.C. 968 (1975).
The taxpayer had not sought to apply any part of the estate tax deduction against ordinary income.
It should be rioted that the alternative tax was not involved in either Quick or Bridges, so, despite this conceptual conflict, they are factually distinguishable from the instant case.