dissenting: Once again, I must disagree with the majority of this Court over its role in reviewing Treasury regulations. In holding invalid section 1.57 — 1(f)(3), Income Tax Regs., the Court has relied on a narrow and literal interpretation of the statute and has declined to consider the purpose of section 57(a)(6) and whether its interpretation will carry out that purpose.
What our role should be in reviewing regulations was described by the Supreme Court in United States v. Correll, 389 U.S. 299, 306-307 (1967), when it said:
we do not sit as a committee of revision to perfect the administration of the tax laws. Congress has delegated to the Commissioner, not to the courts, the task of prescribing "all needful rules and regulations for the enforcement” of the Internal Revenue Code. 26 U.S.C. §7805(a). In this area of limitless factual variations, "it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments.” Commissioner v. Stidger, 386 U.S. 287, 296. The role of the judiciary in cases of this sort begins and ends with assuring that the Commissioner’s regulations fall within his authority to implement the congressional mandate in some reasonable
See Bingler v. Johnson, 394 U.S. 741, 749-751 (1969).
The Supreme Court, in strong and unequivocal terms, has repeatedly declared that the Treasury regulations should not be struck down lightly (see, e.g., Bingler v. Johnson, supra at 749-750; Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501 (1948); Colgate v. United States, 320 U.S. 422, 426 (1943); Fawcus Machine Co. v. United States, 282 U.S. 375, 378 (1931); Brewster v. Gage, 280 U.S. 327, 336 (1930)), and—
it is fundamental, of course, that as "contemporaneous constructions by those charged with administration of’ the Code, the Regulations "must be sustained unless unreasonable and plainly inconsistent with the revenue statutes,” and "should not be overruled except for weighty reasons.” Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501. * * * [Bingler v. Johnson, 394 U.S. at 749-750.]
See Griswold, "A Summary of the Regulations Problem,” 54 Harv. L. Rev. 398, 404 (1941).
Both section 83 and the minimum tax were enacted as parts of the Tax Reform Act of 1969, Pub. L. 91-172, 83 Stat. 487. In section 83, Congress made clear that the regular income tax is to be imposed on a compensatory bargain sale of property, and it expressly provided that such objective could not be frustrated even though the property was sold subject to restrictions on its transferability. In enacting the minimum tax, Congress decided that a minimum tax should be imposed on certain items of tax preference, including the acquisition of stock pursuant to a qualified stock option under section 422, but in enacting that provision, it neglected to deal expressly with the effects of restrictions on the transferability of the stock. The Treasury regulations have adopted a position that to carry out the purpose of the minimum tax, the rules of section 83 should be applied in determining the fair market value of stock acquired pursuant to such an option. Our question, and our sole question, is whether there is a reasonable basis for adopting that position.
The tax treatment of compensatory bargain sales has long been a troublesome subject. In LoBue v. Commissioner, 22 T.C. 440 (1954), this Court held that when an employee was allowed to purchase the stock of his employer at a bargain, the arrangement was to encourage the employee to acquire a proprietary interest in the business and resulted in no compensation. Although our decision was affirmed by the Third Circuit (223 F.2d 367 (1955)), it was reversed by the Supreme Court (351 U.S. 243 (1956)). The Supreme Court held that when an employee was allowed to purchase stock at a bargain because of his employment, he received additional compensation. 351 U.S. at 247.
Despite that holding by the Supreme Court, two decisions by this Court made it possible, in many situations, to avoid a tax on a compensatory bargain sale. In Lehman v. Commissioner, 17 T.C. 652 (1951), we were faced with a situation in which a taxpayer had purchased at a bargain price stock subject to a restriction and reported no income at that time as a result of the restriction. When the restriction expired, the Commissioner sought to tax the bargain element as additional compensation, but we held that the expiration of the restriction was not a taxable event. 17 T.C. at 654. In Kuchman v. Commissioner, 18 T.C. 154 (1952), an employee was sold stock subject to the restriction that he could not sell it for a period of 1 year, and as a result of that restriction, this Court found that the stock had no ascertainable fair market value and that, therefore, the employee did not realize any additional compensation as a result of the bargain sale to him. 18 T.C. at 163. Thus, as a result of the Lehman and Kuchman decisions, an employee could be sold stock at a bargain, and if the stock was subject to a restriction, the employee was not taxable when he acquired the stock or when the restriction lapsed.
The Treasury refused to accept the consequences of the Lehman and Kuchman decisions and adopted regulations designed to tax compensatory bargain sales. Secs. 1.61-2 and 1.421-6, Income Tax Regs., as set forth in T.D. 6416, 1959-2 C.B. 126. Under such regulations, if a compensatory bargain sale of property was made to an employee subject to a restriction which significantly affected its value, the employee was considered to have received additional compensation when the restriction lapsed, and the amount of such compensation was the difference between the price paid for the property and the lesser of its fair market value when he acquired it or when the restriction lapsed. Yet, Congress considered that such rules provided unduly preferential tax treatment for compensatory bargain sales of restricted stock.
In explaining the reasons for enacting section 83, the Ways and Means Committee declared:
The present treatment of restricted stock plans is significantly more generous than the treatment specifically provided in the law for similar types of deferred compensation arrangements. Under present law an employee is taxed in full when his employer makes a contribution for his benefit to an employees’ pension or profit-sharing trust which does not meet the nondiscrimination and other requirements set forth in the tax law, if his interest in the contribution is nonforfeitable. (A similar rule applies where an employer purchases an annuity for an employee). If an employer transfers stock to such an employees’ trust for an employee and the trust provides that the employee will receive the stock at the end of 5 years if he is alive at that time, the employee would be treated as receiving, and would be taxed on, compensation in the amount of the value of the stock at the time of the transfer.
However, if the employer, instead of contributing the stock to the trust, gives the stock directly to the employee subject to the restriction that it cannot be sold for 5 years, then the employee’s tax is deferred until the end of the 5-year period. The disparity of treatment between the two situations becomes even more apparent when it is considered that in the situation where the employee has substantially less than full control of the stock (the nonexempt trust situation) he is taxed currently on the full value of the stock, while in the case where the employee actually possesses the stock, can vote the stock, and receives the dividends on the stock (the restricted stock plan), his tax is deferred. [H. Rept. 91-413 (Part 1) (1969), 1969-3 C.B. 200, 254.]
See also S. Rept. 91-552 (1969), 1969-3 C.B. 423, 500.
To prevent the preferential treatment of compensatory sales of restricted stock, section 83 provides that whenever an employee acquires a transferable or vested interest in such stock, he is taxable on the bargain sale at such time, and the bargain is to be measured by the difference between the fair market value of the stock at such time and the price paid for it. For such purposes, section 83 expressly provides that in determining the fair market value, restrictions that will lapse are to be disregarded. H. Rept. 91-413 (Part 1), supra, 1969-3 C.B. at 254; S. Rept. 91-552, supra, 1969-3 C.B. at 501. However, such rules are not to apply to transfers of stock pursuant to the exercise of a qualified stock option. Sec. 83(e); H. Rept. 91-413 (Part 1), supra, 1969-3 C.B. at 255; S. Rept. 91-552, supra, 1969-3 C.B. at 501.
Section 83 was included in the Tax Reform Act of 1969 as passed by the House of Representatives, and when the bill was before the Senate Finance Committee, Assistant Secretary of the Treasury for Tax Policy Edwin S. Cohen was asked about the effect of restrictions on the sale of stock to employees and responded:
Restrictions which lapse at some future time serve no essential business purpose but are used principally to affect the tax consequences. They may properly be disregarded for income tax purposes under these conditions. * * * [Hearings before the Senate Comm, on Finance (Part 1), 91st Cong., 1st Sess. 652 (1969).]
The concept of a minimum tax was first proposed by the Senate Finance Committee. In setting forth the reasons for such tax, the committee observed:
Under present law, many individuals and corporations do not pay tax on a substantial part of their economic income as a result of the receipt of various kinds of tax-exempt income or special deductions. * * *
* * * Sis * * *
The present treatment * * * results in an unfair distribution of the tax burden. * * *
^ ♦ s}c >}:
The committee has adopted many provisions that are specifically designed to reduce the scope of existing tax preferences. However, the committee believes that an overall minimum tax on tax preferences is also needed to reduce the advantages derived from these preferences and to make sure that those receiving such preferences also pay a share of the tax burden. * * * [S. Rept. 91-552, supra, 1969-3 C.B. at 495.]
It was also the Senate that first proposed that the economic income received by the exercise of a qualified stock option should be treated as an item of tax preference subject to the minimum tax. S. Rept. 91-552, supra, 1969-3 C.B. at 497.
A review of this legislative history shows that section 83 was enacted in the light of the problems that had arisen in the tax treatment of compensatory bargain sales; it assures that when a compensatory bargain sale of restricted stock is taxable, the tax is to be imposed at the time of the sale, and restrictions that lapse are to be disregarded in measuring the bargain. Although the acquisition of stock pursuant to a qualified stock option is not subject to the regular income tax, the bargain element is considered an item of tax preference and is subjected to the minimum tax. The Treasury regulations take the position that for purposes of imposing the minimum tax, the rules of section 83 are to be applied in determining the amount of the bargain element subject to such tax. In my judgment, it is clear that such rule is necessary to carry out the manifest objective of the legislation.
An employee who acquires stock under a qualified stock option may wholly avoid the minimum tax if the rules of section 83 are not applied to measure the bargain received by him. For example, if he acquires stock having a fair market value of $30,000 for a price of $20,000, and if the stock is subject to a restriction on transferability which he claims reduces its value to $20,000, there is a potential dispute in every case over the effect of the restriction on fair market value — how much is the fair market value reduced by the restriction? If it is ultimately determined that the restriction does reduce the fair market value by $10,000, then the transfer is not subject to the minimum tax, even though the employee has received economic income: after the expiration of the restriction, he owns stock worth considerably more than he paid for it. Moreover, the restriction may have little effect in economic reality since section 422 requires him to hold the stock for a 3-year period in order to secure the exemption from the regular income tax. Thus, a restriction, such as we have in this case, will expire by the time the employee satisfies the requirement of section 422. After the expiration of the 3-year holding period required by section 422, he owns stock worth considerably more than he paid for it, and then he is free to transfer it.
It has been suggested that sections 83(e) and 422 reflect a legislative policy to treat more favorably acquisitions of stock under a qualified stock option. Kolom v. Commissioner, 454 U.S. 1011 (1981) (Powell, J., dissenting from denial of certior-ari). It is true that such acquisitions are treated favorably— they are not subjected to the regular income tax, but it does not follow from such provisions that such acquisitions are to be exempt from the minimum tax. On the contrary, section 57(a)(6) makes clear that Congress intended for acquisitions of stock under a qualified stock option to be subjected to such tax. The holding of the majority provides an obvious means for taxpayers to subvert that objective, and such possibility demonstrates that to carry out the objective of imposing the minimum tax on stock acquired by the exercise of a qualified stock option, the rules of section 83 must be applied for such purpose. If the regulations are not sustained, Congress will be required to amend section 57(a)(6) to assure that its objective is carried out.
Dawson, Wilbur, and Chabot, JJ, agree with this dissent.