concurring: While the decision is, in my opinion, entirely unfair, I see no escape from it under the law which governs it. The spreading of gains from installment sales over the years of payment was a privilege granted to afford relief from the ordinary system of taxing the gain at the time of the transaction. Cf. B. B. Todd, Inc., 1 B. T. A. 762. Such relief ought in fairness to carry with it the obligation that by no device will the tax, which, but for the relief, would have been paid, be frustrated. The earlier statutes provided no such obligation and no considerations of general fairness empower the Board to impose it. According to a cardinal rule, taxes may not be imposed by implication, no matter how strong, and therefore the statute may not by construction be regarded either as permitting the disregard of the transfer by the donor or applying to the donees the basis which would have been applied to him, or as taxing him for the income which came to them, or as treating the disposition by gift as a realization of the gain. The intimations in Irvin v. Gavit, 268 U. S. 161, and Taft v. Bowers, 278 U. S. 470, that the tax is upon income, notwithstanding change of ownership of the corpus from which it is derived, are, in view of other cases like Poe v. Seaborn, 282 U. S. 101, and Hoeper v. Tax Commissioner of Wisconsin, 284 U. S. 206, not sufficient to give assurance that this theory is to be taken as a general principle of the income tax.
By the Revenue Act of 1928, section 44 (d), an attempt has been made to provide for such cases, but this was not made retroactive.