dissenting: I do not agree with that part of the opinion of the majority of the Board relating to the time of acquisition of the stock involved herein and the length of time it was “held” by him, in contemplation of section 117 (a) and (b) of the Revenue Act of 1934. It is my opinion that no part of the stock in question was held for more than one year and that 100 per centum of the gain realized upon the sale of 1,000 shares of the stock is recognizable for tax purposes.
I think the petitioner had no right to demand stock to the extent of the earnings credited to the purchase price of 3,000 shares and at the same time exercise his right to complete the purchase of 3,000 shares in accordance with the terms of the accepted option. He had the right to elect either to demand so much stock at the option price as the earnings credits would pay for and thereby forfeit his right to purchase under the option the remainder of the 3,000 shares, or to have the earnings credits applied to the purchase price of the' full 3,000 shares — and not to a less number of shares. He could not do both. Petitioner elected the latter course and, having so elected, he must abide by the terms of the option for the purchase of the full 3,000 shares. Briefly stated, then, petitioner accepted an offer to purchase 3,000 shares of Kelvinator Corporation stock at $8 (originally $10) per share, or a total of $24,000, on condition that payment therefor was to be made as follows and not otherwise:
By crediting the proportionate annual earnings of such stock to the purchase price on the first day of December, 1931, 1932, 1933, and 1934, respectively, and the payment in cash on December 1, 1934, in the amount" of the difference between the total of such earnings credits and $24,000, the total purchase price.
The payment was so made. The stock was deliverable only upon the completion of such payment on, or as of, December 1, 1934, and *1417was accordingly delivered. I think, therefore, that petitioner acquired the stock in the full amount of 3,000 shares on December 1, 1934, and that he neither acquired nor held any part of it prior thereto.
For the reasons assigned I respectfully dissent.
Smith and Mellott agree with this dissent.