I concur in the result.
A share of stock awarded as compensation to a person who is subject to a legal requirement that he must disgorge any gains on a sale thereof within 6 months obviously provides significantly less compensation to him than would an otherwise identical share awarded to a person not so subject. Such differences in value may be ignored under section 83 for transactions within its scope, but section 83(e)(1) forbids respondent from applying section 83 to transactions, such as this, covered under section 421. Hence section 1.57-l(f)(3), Income Tax Regs., overreaches in defying this prohibition. It cannot be reconciled with the statute and, in my view, is invalid. Section 57(a)(6) defines as the tax preference the excess of “fair market value” over the option price. The statute nowhere authorizes respondent to use, as he does, a figure clearly in excess of fair market value. On the other hand, petitioner is clearly wrong in arguing that either his option price, or the price 6 months later, was fair market value. Since he failed to show the true fair market value of the restricted shares, and there is no evidence in the record to show it, we have no choice but to sustain respondent.
Drennen, J., agrees with this concurring opinion.