concurring: While I agree that the stock owned by the beneficiary of the petitioner trust must be attributed to it, I reach this conclusion by a path other than that taken by the majority. I therefore concur in the Court’s opinion only as to Issues 2 and 3.
As a result of a bitter family feud, the MDI stock held by the Metzger Trust (the trust) was completely redeemed. There is no question that this redemption would be “not essentially equivalent to a dividend” within the meaning of section 302(b)(1) were it not for the attribution rules of section 318. Those rules cause the trust to be the owner — albeit only constructively — of 100 percent of the MDI stock outstanding after the redemption and accordingly repel the trust from the gates of section 302(b)(1). The trust argues that the presence of the family feud should protect it from the clutches of section 318 and allow it access via section 302(b)(1) to the basis recovery and capital gains treatment of section 301(c)(2) and (3).
Whether a corporate distribution is essentially equivalent to a dividend is a question of fact, although which factors may contribute to a court’s finding is, of course, a question of law.1 In United States v. Davis, 397 U.S. 301 (1970), the Supreme Court held that the corporate purpose behind a redemption should play no role in determining dividend equivalency under section 302(b)(1). To the extent, then, that the trust herein argues that the family feud demonstrates the bona fide business purpose of the corporate distribution, its argument is irrelevant under Davis.
The trust, however, seeks to benefit from the family disharmony in a different way. The attribution rules of section 318 provide that one individual or entity should be treated as the owner of stock in fact owned by another individual or entity because of the close relationship between the two. For example, parent/child, husband/wife, and trust/beneficiary relationships trigger constructive ownership by virtue of section 318. The underlying premise of these attribution rules is that, because of a sharing of interest and advantage, a nominal redemption might have the effect, not of a sale of shares to the corporation, but of a corporate dividend, and that the release of shares by the “redeemed” taxpayer might possess little substance because of shares retained by a related taxpayer. S. Rept. 1240, 88th Cong., 2d Sess. 7 (1964), 1964-2 C.B. 701, 705-706. The trust simply argues that family discord undermines the premises of the attribution rules and that they should not be applied when they belie reality.2
The Supreme Court held in Davis that the attribution rules of section 318 should be applied by a court when making a section 302(b)(1) determination, but it did not decide whether family discord may soften their application because that issue was not presented; the attribution in that case was between two happily married spouses and their children. The respondent would have us hold, however, that the broad language used in the Davis opinion should be read to foreclose any mitigation of the application of the attribution rules; admittedly, there is judicial support for this position.3
In Robin Haft Trust v. Commissioner, 510 F.2d 43 (1st Cir. 1975), the First Circuit held that Davis did not preclude the use of a family feud. In that case, as in the case at bar, the taxpayer/trust undoubtedly would have been entitled to the protection of section 302(b)(1) but for the section 318 attribution. However, the taxpayer in Robin Haft Trust could only be treated as a constructive owner of the redeeming corporation’s stock if ownership could be attributed under section 318(a)(l)(A)(ii) from a father to his child, and the taxpayer there argued that the parent/child relationship was so strained that attribution was unreasonable. Accepting that the existence of family disharmony can outweigh the attribution rules, the Court of Appeals remanded for additional fact-finding as to the breakdown of the father/child relationship. See J. Boyd & M. Boyd, “Family discord may negate attribution rules and allow capital gain treatment of a redemption,” 15 Taxation for Accountants 362, 364-365 (19¶5).
The respondent herein argues, despite the clear implication to the contrary of the language of section 1.302-2(b), Income Tax Regs.,4 that Robin Haft Trust is inconsistent with United States v. Davis, supra, or that if it is not, it is nonetheless ill advised and should not be followed. Although the majority of this Court feels compelled to respond to these challenges, I would decline the opportunity to take so precipitous a step until required to do so, and the facts of this case make no such demand. Indeed, respondent on brief makes clear that the instant case can be disposed of on a narrower ground.
The trust herein is the constructive owner of 100 percent of the shares because its beneficiary, one Jacob Metzger (Jacob), is deemed to own them all. See sec. 318(a)(3)(B)(i). He is the actual owner of some, and is the constructive owner of the rest of the shares, which are actually owned by a trust, of which he is the beneficiary, and trusts for each of his children. See sec. 318(a)(2)(B)(i) and (a)(l)(A)(ii). There is no link in the chain from child’s trust to child to father (Jacob) to the trust where disharmony exists; to the contrary, the only fight was between Jacob and his sisters, and no one is seeking to attribute stock ownership across those unfriendly lines.5 To be sure, were the trust controlled by a trustee who was given substantial discretion and who thought ill of Jacob, this case might be fitted within the Robin Haft Trust mold. But here, Jacob was both the trustee of the taxpayer/trust and a beneficiary, and it seems obvious that Jacob could not be hostile to himself. Thus, all of the attribution rules relevant to the instant case accord with reality, and so their application herein is consistent with the rationale behind section 318. We need not decide whether we may or should ameliorate the application of the section 318 rules if justice would be served thereby, and I believe that a proper respect for the judicial function and its inherent limitations requires that we do not decide these questions before they are properly presented.
The majority apparently does not entirely reject the use of family discord. However, it limits such use to cases in which the taxpayer’s actual and constructive ownership after the redemption is less than his actual and constructive ownership before the redemption, and only at that point is it used to determine whether such reduction was “meaningful.” Yet, if a taxpayer’s only ownership of stock after the redemption is purely constructive, and if the premise upon which that legal fiction was built is refuted by family discord, of what possible relevance can the amount of ownership fictionally attributed be? The Court today raises to the level of an essential prerequisite to rational factfinding a factor which, under the circumstances of this case, seems wholly irrelevant, and thereby paves a road for objectionably arbitrary results.
Suppose a father and son jointly own a corporation until they have a bitter dispute, at which time the son is completely redeemed. If, before the redemption, they owned in the aggregate 100 percent of the corporation’s outstanding stock, they each will be deemed to own 100 percent of the corporation after the redemption. Thus, the rule which the majority feels compelled to adopt would treat the redemption as essentially equivalent to a dividend under section 302(b)(1).6 However, if a third party (say, an employee) owned as little as 1 share, the redemption would reduce percentage-wise the son’s constructive ownership ever so slightly below that of his previous actual and constructive ownership, and thus he would now be free under the majority’s rule to argue that the attribution rules should be overlooked because of the family feud.7 Yet, it seems clear to me that whether or not a third party owns a minimal amount of stock has nothing whatsoever to do with the issue. How one should dovetail United States v. Davis, supra, with the views of the Court of Appeals in Robin Haft Trust v. Commissioner, supra, can be left for another day.8 I would refrain from doing more than deciding this case solely upon the basis that the family hostility in this case does not preclude the application of section 318.
Fay, Irwin, Sterrett, and Hall, JJ., agree with this concurring opinion.Sec. 1.302-2(b), Income Tax Regs.; Wright v. United States, 482 F.2d 600, 606 (8th Cir. 1973).
See Title Insurance & Trust Co. v. United States, 484 F.2d 462, 465 n. 4 (9th Cir. 1973).
Robin Haft Trust v. Commissioner, 61 T.C. 398 (1973), and 62 T.C. 146 (1974) (supplemental opinion), revd. and remanded 510 F.2d 43 (1st Cir. 1975). Cf. Niedermeyer v. Commissioner, 62 T.C. 280, 286 (1974), affd. per curiam 535 F.2d 500 (9th Cir. 1976).
Sec. 1.302-2(b), Income Tax Regs., states—
“The question of whether a distribution in redemption of the stock of a shareholder is not essentially equivalent to a dividend under section 302(bXl) depends upon the facts and circumstances of each case. One of the facts to be considered in making this determination is the constructive stock ownership of such shareholder under section 318(a). [Emphasis added.]” The Supreme Court in United States v. Davis, 397 U.S. 301 (1970), ignored this regulation except for a general reference to the regulation according with the view that section 318 “applies to all of section 302” — a reference which does not answer the question we have before us, namely, the extent to which it applies. See Comment, 55 B.U. L. Rev. 667, 674 (1975); Comment, 28 Maine L. Rev. 222, 237-239 (1976). In this connection, we note that, at one point in its opinion, the Supreme Court merely states that “Congress intended that they [the attribution rules] be taken into account wherever ownership of stock was relevant.” See 397 U.S. at 307; emphasis added.
Somewhat ironically, attribution between siblings is not even authorized by the statute. See sec. 318(a)(1) and (aX5XB). Compare secs. 267(c)(4), 544(aX2), and 554(aX2).
In order to keep the hypothetical simple, I have ignored the waiver provisions of sec. 302(c)(2) which might be available to the son as I have posed the case. However, by simply modifying the facts in Robin Haft Trust, one can create a perfectly valid if somewhat complex situation involving a trust which would be analogous to the situation presented above.
Cf. Parker v. Commissioner, T.C. Memo. 1961-176.
See, e.g., A. Cathcart, “Section 302 Redemptions: Family Fights and Attribution,” 61 A.B.A.J. 1272(1975).