dissenting: I differ with the majority on the first point in this case. I think that the reasoning of the Supreme Court in Helvering v. New York Trust Co. is authority for the respondent’s position here, which follows ruling I. T. 2832. In that case, as in this, there was a statutory provision for determining the basis, but none directly specifying the method of computing the period of holding. The Commissioner, in the Nero York Trust Co. case, went *901back to the acquisition by the donor to get the basis and then treated the periods of holding by the donor and donee as separate in ascertaining the rate. The Court disapproved, saying:
Sections 202(a) (2) [the basis provision] and 206(a) (6) [the capital assets provision] are included in the same Act and are applicable respectively to different elements of the same or like transactions and are not to be regarded as wholly unrelated. While undoubtedly legally possible and within the power of Congress, the methods adopted and results attained by the Commissioner are so lacking in harmony as to suggest that the continuity required to be used to get the base was also intended for use in finding the rate. No valid ground has been suggested for requiring tenures to be added for the one purpose and forbidding combination for the other.
It seems to me that there is even more reason here for requiring the use of the same period for both purposes, inasmuch as here we have at all times the same taxpayer, while in the New York Trust Co. case there was a different taxpayer in each period.
The only ruling directly dealing with this question prior to I. T. 2832, appears to be I. T. 2443. The New York Trust Co. opinion points out that rulings of the Income Tax Unit “have none of the force or effect of Treasury Decisions and do not commit the Department to any interpretation of the law.” Consequently, it cannot be said that I. T. 2443 had any binding effect requiring that it be followed in this case.
I do not construe paragraph (D) of section 101(c)(8) of the Revenue Act of 1932 as effecting a change in the law either prospectively or retroactively. There was no provision of the statutory law directly dealing with the question and there had been no authoritative ruling when the 1932 Act was passed. The decision in the New York Trust Co. case furnished the first authoritative guide to a solution. It was the first judicial interpretation, and it is interpretation by the judiciary that is definitive. The House Ways and Means Committee and the Senate Finance Committee apparently had different views as to the statutes prior to 1932 and as to the effect of paragraph (D). The House Committee thought that the prior law did not require tacking of the periods of holding, while the Senate Committee thought that paragraph (D), requiring tacking, was merely “declaratory of the existing law and is made in the interest of clarity only.” This conflict of views makes the reports of but little aid in determining the correct interpretation of the prior law. Moreover, legislative interpretation — if the Committee reports can be considered as such — while of weight in assisting a court when in doubt (United States v. Stafoff, 260 U. S. 417, 480), is “immaterial in that the courts alone may in the end declare what a statute means.” American Exchange Securities Corporation v. Helvering, 74 Fed. (2d) 213. It is my view that in the analogous *902situation in the New York Trust Co. case the Supreme Court gave a clear indication of what the statute means, to wit, that the periods of holding by the taxpayer should be added together in order to determine whether property is a capital asset. So viewed, the Commissioner should be affirmed on this point.
Muedock agrees with this dissent.