(concurring specially).
I concur but not without some misgivings. I would emphasize that we are not here dealing with the status of proceeds received upon an ordinary commercial market sale of such bonds subsequent to the time of original issuance. From the interplay of economic laws which may even defy judge-made laws, the price will fluctuate, up and down, above or below the nominal par (face) value depending on the supply of money, the demand for it, and other economic factors. See The Hanover Bank, Executor v. Commissioner, 1962, 82 S.Ct. 1080.
This pinpoints the difficulty with any broad statements such as the Court makes about a “well established and soundly reasoned rule that when property is sold any portion of the proceeds that represents a right to receive ordinary income is taxed as such, even though the principal asset transferred is a capital asset. Commissioner v. Phillips, 4 Cir., 1960, 275 F.2d 33; Tunnell v. United States, 3 Cir., 1958, 259 F.2d 916.” Conceptually at least this is another one at odds with our consistent statement recently reiterated in Sherlock v. Commissioner, 5 Cir., 1961, 294 F.2d 863, that this Court, in contrast to some others, *839follows the aggregate, not the entity, theory so that taxability is not to depend on chopping up into little bits something which is whole and sold (or exchanged) as a whole.
At what stage does the original-issue-discount cease to have the operative effect of additional interest for the use of money? Does a portion of it, somehow like some marine life incrust itself permanently as a barnacle on the bond? When the original-issue-holder No. 1 sells, he sells all. As betweeen him and his vendee (Holder No. 2), would it not (except for current accrued interest) all be capital gains just as would be the sale of an ordinary promissory note? Certainly as to the next transaction—the sale between Holder No. 2 and Holder No. 3—all Holder No. 2 can ever hope to get is the face of the bond (and interest accruing during his ownership). If Holder No. 2 can treat it as a capital gain on a sale to Holder No. 3, why is it so implausible (as the Court says) that Congress could have intended that Holder No. 1 may treat it the same way on the redemption as he would have on a sale to No. 2 at which time he gets the same, no more, no less. The effort to look at the “real” or “original” nature of the gain, i. e., the difference, leads to metaphysical dialectic when one considers successive transactions in which, say between the time Holder No. 4 acquires it and Holder No. 7 sells it (at par), the market price at which No. 6 bought it was at the level of the face value less original issue discount. What changes the character of the very same number of dollars arising out of the very same contract? Indeed, as I read it, the Court in effect says the answer should be the same. “The structure of the provision as it stands indicates a purpose to liken a bond retirement to a sale or exchange and subject it to the same tax treatment that a sale or exchange would entail.”
These seemingly internal contradictions and the problems I have just barely sketched cause me to have these considerable misgivings whether our effort to make sense really makes much.