concurring: While I concur in the conclusion reached and the thoughts expressed in the majority opinion, the picture presented by the record in this case prompts me to express some additional views.
The petitioner is an engineer and since May 1927 has been vice president and general manager of the Georgia Power Co., with offices located in Atlanta, Georgia. He graduated in 1903 from the Massachusetts Institute of Technology, with a degree of Bachelor of Science in electrical engineering. After serving two years with the General Electric Co. in Schenectady, New York, he was employed for six years in Brazil, returning to the United States in 1911, at which time he procured a position as construction foreman with the General Electric Co. on the west coast. Early in 1912 he was employed by the Alabama Power Co. as electrical engineer in connection with the development of the first major hydroelectric project in that state. This project combined the development of navigation and water power. By 1919 or 1920 he had advanced to the position of vice president in charge of operations, which position was held by him, except for a brief interlude of a few months during which time he returned to Brazil, until he was appointed to his present position. By 1920 he was drawing a salary of approximately $18,000 a year and at or about that time he began the purchase of stock in the Alabama Traction Light & Power Co., which in turn held the stock of the Alabama Power Co. and a number of other subsidiaries. In or about 1924 the Alabama Traction Light & Power Co. became a subsidiary of the Southeastern Power & Light Co. and the petitioner continued the policy of making his principal investments in the stock of that company. He had in mind the building up of a substantial estate, principally for the purpose of providing adequate income for his wife and daughter in the event anything should happen to him. During the period from 1920 through 1931, and possibly some subse*452quent years, the petitioner carried out a program which included the purchase and sale of securities in substantial quantities. The bulk of these securities were the stock of public utilities, as previously indicated. Some of the shares sold were acquired not by purchase, but by way of stock dividends and split-ups. During the years 1925, 1926, 1928, 1929, and 1930 the petitioner made 89 different sales covering 38,750 shares of public utility stocks.
From his testimony, and to some extent the testimony of other witnesses, it would appear that the petitioner is the type of man who maintains and exercises meticulous regard for proper personal conduct in all of his activities, civic as well as business, and who has a high sense of responsibility to his family, to his community, and to his government. The distinct impression is made that he has consistently given particular care and attention to things done and to be done, and yet in the preparation and filing of his Federal income tax returns we find him completely out of character. Tear after year he filed erroneous returns, admittedly understating income in substantial amounts. For the year 1925 he failed to report a profit of $14,075.50 from two sales of public utility stocks, and for 1926 he failed to report a profit of $1,702.50 from the sale of certain option warrants. With respect to the sale of Southeastern and Commonwealth stocks, he understated his profit for the year 1926 in the amount of $70,182.53, for the year 1928 in the amount of $41,970.64, and for the year 1929 in the amount of $50,907.41, and for 1930 it is stipulated that the amount of the understatement was $209,040.34. It appears also that for the year 1929 his net income was further understated in the amount of $69,120 by reason of his claiming a deduction to which he was not entitled.
The understatement of the profit from the sale of Southeastern and Commonwealth shares for the years 1926, 1928, and 1929 resulted from petitioner’s failure to apply the so-called first in, first out rule in determining the basis of the shares sold. He used as his basis the highest price which had been paid for such stock, regardless of the fact that the certificates delivered upon the said sales did not evidence shares purchased at the highest price but evidenced shares purchased at prices not then determinable. The erroneous deduction of $69,120 claimed in 1929 resulted from the fact that petitioner ignored the so-called “wash sales” provision of the statute and claimed a deductible loss on the sale of 2,000 shares of Atlantic Ice & Coal Co. common stock sold on November 25, 1929, even though on December 12 of the same year he entered into an agreement with the purchaser to repurchase the said shares at the same price at which they had been sold. As to the failure to report the profit from the *453sales of the utilities stocks and option warrants in 1925 and 1926, the only explanation is that it must have been an oversight. The understatement of profit from sales of Southeastern and Commonwealth shares in 1930, like the understatement of profit on similar sales in 1926, 1928, and 1929, resulted from the use of an erroneous basis, but unlike the errors in those years the understatement of such profit for 1930 resulted from the use of an amount as basis which petitioner now admits he knew he had no right to use. His explanation is that he was negligent and careless, but that he had no intent to evade tax.
It is the claim of the petitioner that he never heard of the first in, first out rule until the investigation was made which resulted in the determination of the deficiencies and penalties herein. He claims that he was under the impression that he could use as the basis for determining the gain from the sale of any shares of stock the highest prices paid for such shares, regardless of the fact that the certificates used in making the transfer of the shares sold were not the certificates received at the time the highest-priced purchases were made. With respect to the loss deduction claimed in respect of the Atlantic Ice & Coal Co. stock, his explanation is that it was his belief that once he had sold the stock his right to deduct any loss sustained was established, regardless of the time of any repurchase agreement on his part.
To say the least, it is difficult to understand how a man of the type portrayed by this record could or would have failed to make some serious effort to have informed himself, or at least have required the person to whom he delegated the task of preparing his income tax schedules to familiarize himself with the proper and established method of determining the basis and computing the gain or loss from the sales of securities, particularly where the purchases and sales in question and the gain realized therefrom were so substantial in amount both as to the number of transactions and the sums of money involved and occupied such an important place in petitioner’s personal and financial program. It is not so startling or surprising, however, that any person should have difficulty in understanding and applying the first in, first out rule. Considered in the most charitable light, it is arbitrary and artificial. It rests on the assumption that one share of stock in a particular corporation is identifiable or different from other shares of stock of the same class and ignores the fact that a share of stock is merely indicative of the undivided interest of the holder in the welfare of the corporation, and that the certificate is not a share in itself but merely evidences ownership of such undivided or pro rata interest, not in some particular asset or activity of the corporation, but in the corporation as a whole. The application of the *454rule has resulted in a mad scramble on the part of taxpayers to earmark particular stock certificates and in case of sale to use certificates received at the time the highest-priced shares were acquired so as to report the minimum amount of gain or to obtain the maximum deduction in the case of loss. The Government, on the other hand, if the early purchases were made at a lower figure, undertakes to show that the cei’tificates used with respect to a particular sale were certificates evidencing unidentifiable shares and that the first in, first out rule should apply. The natural consequence is that income is distorted year after year, in some instances at the expense of the Government and in other instances at the expense of the taxpayers, and the Bureau, the Board, and the courts are flooded with cases the majority of which would undoubtedly be eliminated to the eventual advantage of both the Government and the taxpayers if it were permissible to determine the basis of the shares sold by the apparent and logical method of averaging the unrecovered cost of all shares owned by the taxpayer immediately prior to a sale. The regulation establishing the first in, first out rule is a regulation of long standing, however, and, since its promulgation has been held to be reasonable under the statute, it has the force and effect of law and it is likely that action by Congress would be necessary to change it. Furthermore, it is our duty to undertake the application of the law as it exists and not as it might or in our opinion should be.
While the petitioner’s use of the highest-priced shares in his portfolio as the basis for computing gain is no more reasonable or logical than the application of the first in, first out rule, it is certainly no less so. It does not appear of record that the instructions accompanying the income tax forms contained any information concerning the said rule, and, in the face of petitioner’s insistence that he had no knowledge of it whatever, the record seems to fall short of a satisfactory showing of an intent to evade tax in reporting the gain on the transactions in question.
It is with greater difficulty that I am able to give full credence to the testimony with respect to the loss deduction claimed by reason of the sale of the Atlantic Ice & Coal Co. stock. The petitioner certainly was tax conscious, and the record clearly indicates that he would not have parted with the stock except for the purpose of procuring a deduction against income and then only on the belief that he could reacquire such stock at no advance in price. He had no intention or desire to finally and definitely part with his interest in the company. He proposed a sale to Courts & Co., but was able to close the transaction only upon the condition that he would save *455them from loss. This was followed some 17 days later by the admitted agreement to repurchase the shares at the selling price. These facts are strongly persuasive that the agreement to repurchase was existent from the beginning but was not expressed until December 12. The witnesses have testified, however, that the sale was an outright sale, and Courts & Co. apparently made some effort to resell the stock to outside interests between November 25 and December 12, and, as to the agreement to indemnify Courts & Co. against loss, there might have been some serious question as to its enforceability, the said agreement not being in writing. These factors, supplemented by the claim of lack of knowledge of the statutory prohibition against the deduction of such losses where a repurchase agreement has been entered into within 30 days after the sale, may be sufficient to justify the conclusion that the record does not sustain the charge of fraud, although it is very difficult to believe that the petitioner could or would have informed himself, as he obviously did, of that part of the statutory provision prohibiting the deduction of such losses if the property sold is actually repurchased within the period of 30 days after the sale and not have informed himself of the prohibition of the loss deduction where an agreement to repurchase is entered into within that period.
Petitioner’s failure to make any report of the gain from certain sales of securities in 1925 and 1926 is equally difficult to understand. He had no explanation except that it must have been an oversight, reiterating his claim that he had no intent to evade tax. Compared with other items involved in this proceeding, the amounts were comparatively small and it may be, as counsel suggests, that the omission of the larger amount in 1925 was due to a mistake as to basis and confusion as to sales and purchases made at or about the same time.
With respect to the understatement of income for 1930, however, I am fully convinced from the testimony of both petitioner and Nabors that petitioner’s conduct goes far beyond carelessness or negligence and indicates an intent to evade tax within the meaning of the statute. The amount of the understatement was substantially greater than the combined understatements for the preceding years. Both Nabors and petitioner admit they knew they had no right to use as the basis for determining gain on the 1930 sales the cost of stock which had already been exhausted in reporting gain on prior sales, and yet they did just that. I am unable to give credence to the claim or testimony that it resulted from an innocent mistake and agree fully with views expressed in the majority opinion.