dissenting:
My only point of dissent with the majority opinion is the application of the Corn Products1 doctrine to this case. The majority states, and I agree that:
The rule can be stated to be, and we believe is, that Corn Products will be applied in this court to purchases of company stock to obtain a source of supply only if there is no substantial investment intent.
The majority then looks at the intent involved in the decision to purchase through the cooperative system. However, the *699majority opinion does not look at the taxpayer’s intent but transfers the intent to Congress under Int. Rev. Code of 1954, § 521(b) (2) making it necessary for a cooperative to float its paper to its customers. The majority analyzes United States v. Mississippi Chemical Corp., 405 U.S. 298 (1972), and seems to conclude that since the Supreme Court examined the case based on Congressional intent in setting up the Banks for Cooperatives and since the Court did not apply Corn Products, it is not applicable in the present case, or perhaps in any case, where there is Congressional involvement.
However, Mississippi Ohemical is very much distinguished from Agway. The Banks for Cooperatives were established by the Farm Credit Act of 1933 as a financing vehicle for farmers with the long-term purpose that they would finance themselves. The intent of Congress was to stimulate a privately financed program, but temporary public financing was needed at the outset to get the system into successful operation. The Farm Credit Act of 1955 provided for three distinct classes of stock — A, B, and C. Class C stock was involved in that case and could be obtained under four circumstances:
(1) initial qualifying share
(2) quarterly stock purchases
(3) patronage refunds
(4) allocated surplus credit
The only circumstance involved there was number 2. The Court did not consider patronage refunds. In footnote 10, the Court referred to them as distributions of earnings eventually convertible to cash. In footnote 11, the Court indicated that it was not reviewing the contention that the patronage dividends should have been reported as income. This is very clear from the lower court’s opinion, reported at 431 F. 2d 1320 (5th Cir. 1970), wherein it is stated at page 1322:
* * * In the district court the government also contended that taxpayers should have reported the Class C stock received as patronage refunds as income. The court did not sustain this position and it has been abandoned by the government. As a result the present appeal is concerned solely with the tax treatment of the Class C stock purchased under the “interest override” requirements of 12 U.S.C. § 1134d(a) (3). [Footnotes omitted.]
*700The Court considered that there was virtually no market for the C shares but that the stock was intentionally given its characteristics by Congress with definite reason. Congress wanted the Banks to repay the capital extended by the Government and to retain private capital and this would not be facilitated if borrowers could redeem their stock for cash upon paying off their loans. The restrictions on the stock would provide a stable membership and permanent capital. The amount paid for C shares in quarterly purchases becomes part of the permanent capital structure of the Bank. The Court states at page 811: “The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity.”
Two points should be considered: (1) the Court never considered a capital versus non-capital argument and never even mentions Corn Products but only considered the deducted versus capitalized argument, and (2) the Court kept talking about long-term value, foundation, and stability. Since the Court did not consider the argument presented in Corn Products and since it does not even mention that case, it is unreasonable to say that the Court has overruled it or even that it refutes it. Secondly, the stock involved in Agway does not provide a foundation and stability for United. On the contrary, it is intended that the patronage dividend stock be redeemed when the capital is considered adequate. This is in the'by-laws.
Concerning Congressional intent, in Mississippi Chemical there was the intent of Congress to make the Banks for Cooperatives self-sustaining and to make the Class C stock part of the permanent capital structure. In order for a Bank to lend money, it had to have a continuing supply of capital. This was brought about by purchases of Class C stock. However, in Agway there is no similar Congressional intent. There is no Congressional involvement with United other than the establishment of tax-exempt status under § 521 of the Code. There is no need for the patronage dividends to be part of the permanent capital structure. In fact, according to Article 7, section 14, of United’s by-laws, capital advances would be retired when United’s capital was adequate in the judgment of the board of directors.
*701Therefore, it would seem that, rather than Mississippi Chemical, Corn Products and prior cases of this court applying the Corn Products doctrine, Waterman, Largen & Co. v. United States, 189 Ct. Cl. 364, 419 F. 2d 845 (1969), cert. denied, 400 U.S. 869 (1970); FS Services, Inc. v. United States, 188 Ct. Cl. 874, 413 F. 2d 548 (1969); Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886, 303 F. 2d 916 (1962), should apply to Agway.
If, as the majority states, by applying the Corn Products doctrine “we would be effectively holding that cooperatives and their patrons could not hold capital stock as a capital asset,” then so be it. If the type of stock is in nature a temporary capital advance, then, ipso facto, there is no investment intent in holding that stock since it is known and intended that it will be redeemed within a short period of time.
For the above reasons, I would allow defendant’s motion for summary judgment, deny plaintiff’s motion for summary judgment, and dismiss plaintiff’s petition.
Corn Products Refining Co. v. Comm’r, 350 U.S. 46 (1955).