dissenting: I expressed my views on the proper disposition of this case in the report promulgated at 33 B. T. A. 625, and I need not repeat what appears there. The prevailing opinion is *1157based upon the thought that the petitioner did not acquire the property by a “genuine sale” but, on the contrary, acquired it by a distribution under the will of his father. Yet there was no distribution of the shares and a sale actually took place and was recognized and approved by the court. The Commissioner determined that the stock was acquired by. purchase on December 20, 1919, and the petitioner in his brief agrees that he acquired the shares on that date. The sale may not be disregarded in order to grant the petitioner the use of a larger basis than the statute itself allows under the circumstances. Cf. Hugh M. Matheson, 31 B. T. A. 493. If he had paid the full fair market value for the stock, he would be entitled to use the purchase price as his basis for subsequent gain or loss upon the shares. Yet the reasoning of the prevailing opinion would apply just as appropriately to that situation and would require the use of the March 1, 1913, value.
The value of the shares on March 1, 1913, is immaterial to the determination of gain in this case under the statute. The petitioner on that date had but a contingent future undivided one-third interest in the 2,625 shares which would come into possession only upon the death of Oliver, then of unstated age. The value of the petitioner’s interest at that time was wholly speculative, has not been proven, and was certainly different from the value of one third of the shares on that date. Those shares were then in a trust. The petitioner does not contend that there was no trust. The trustees and the beneficiaries were not the same persons. The parties and the court regarded this particular trust as an existing trust. There seems to have been good reason for its continuance. Why then should the Board hold that there was no trust after the death of the mother ?
The petitioner was able to acquire these shares from the trustees at a cost of $100 each. The trustees were not in position to make and did not make any gift to the petitioner. Cf. Robinson v. Commissioner, 59 Fed. (2d) 1008. The petitioner had no right to use the shares prior to the purchase. Cf. Bradley W. Palmer, 32 B. T. A. 550. Therefore, unless this is such an extraordinary case as to warrant an exception to the use of the normal basis of cost and to justify the use of the greater value of the shares at the time of the purchase, my original opinion was correct. But in no event can I understand how the statute justifies the use, under the circumstances here present, of the value of the shares on March 1, 1913, as the petitioner’s basis for subsequent gain or loss upon the disposition of the shares.
SterNhagen, Smith, MoRRis, and Meluott agree with this dissent.