dissenting:
In my opinion this case turns wholly on the factual issue of whether the parties to the 1958 agreements intended the 20-cent gallonage fee to be, on the one hand, payment for *383the Coca-Cola franchise or, on the other hand, an additional payment for the use of the tangible real and personal property. Unlike the court, I consider the parties’ intention in 1958 to be crucial because I think that they could legitimately decide (especially in view of the position, testified to by plaintiffs’ experts and accepted by the trial judge, that the franchise had no fixed or measurable value for plaintiff) to have the bottling partnerships shoulder all the cost of the franchise, whatever that may have been, without reimbursing plaintiff for it. That is precisely what happened in plaintiffs relationship with the partnerships in all the years between 1934 and October 1, 1958, when the 1958 agreement (involved in the present case) went into effect. Nothing in the personal holding company provisions demanded that plaintiff must necessarily receive royalty payments (assuming that the franchise had a substantial value) if it did not wish to receive them and the partnerships did not wish to pay them. Without transgressing those statutory provisions taxpayer could properly mold its arrangements so that it did not obtain any such royalty payments. The basic issue is whether it did so in fact. Of course, we are not bound by plaintiffs own statements of intention if the facts and circumstances of the arrangements show that those representations are inaccurate and cannot be accepted at face value. But the essential question still remains one of the parties’ own intention.1 The basic question is not whether, objectively, the franchise had value (and if so how much).
After holding a lengthy trial and hearing witnesses, Trial Judge Wood, the trier of fact, determined that "[t]he preponderance of the credible evidence in the record as a whole is that the 20 cents per gallon surcharge payment factor included in the term sub-bottler’s contracts in effect *384between plaintiff and the two partnerships throughout the tax years here involved, and incorporated by reference in the lease agreements in effect between plaintiff and the partnerships throughout that same period, was intended solely as a partial payment to plaintiff for the use of plaintiffs tangible assets by the respective partnerships, not as a payment to plaintiff for the use by the respective partnerships of plaintiffs franchise.” Trial Judge’s Opinion at 20. We are not bound by that finding if we are convinced or feel strongly that it is erroneous, but, again unlike the court, I am not so convinced nor do I feel strongly that it is wrong (though I do find the issue in close balance). Accordingly, I have to accept the trial judge’s determination. See Davis v. United States, 164 Ct. Cl. 612, 616-17 (1964).
The major factors which induced the trial judge to find as he did, and which lead me to consider his position reasonable and supportable, are these:
(a). Concededly, from 1934 to 1955 taxpayer received no payment from the partnerships to which it transferred both its franchise and the right to use tangible assets (owned by plaintiff) for the transfer of the franchise.
(b). Similarly, the 1956 contracts with the partnerships did not, either by their terms or under the testimony credited by the trial judge, call for any franchise, surcharge, or markup payment by the partnerships to plaintiff.
(c). As for the 1958 agreement, there was evidence, credited by the trial judge, that the parties to the arrangement reasonably believed that plaintiff needed more money for its tangible assets, that the aggregate of the amounts theretofore payable by the partnerships for the tangible assets was too low to compensate plaintiff for the use of those assets, and that the 20 cents per gallon payment factor was intended to supplement, and to take up the slack in, these otherwise inadequate rental payments.
(d). There was testimony, credited by the trial judge, that the 20 cent gallonage fee was incorporated into the 1958 contracts (not solely into the leases) only at the insistence of the Coca-Cola Company (not the plaintiff, but the principal over-all Coca Cola firm).
*385(e). The trial judge credited the testimony of plaintiffs three expert witnesses2 that the Coca-Cola franchise, in and of itself, was not an asset of any fixed or measurable value to plaintiff. In his opinion, the trial judge said:
Further, expert testimony at trial strongly suggests that plaintiffs franchise, in and of itself, was not an asset of any fixed or measurable value, and tends to validate plaintiffs historical treatment of that franchise. One credible and impressive expert, with wide experience in the evaluation of soft drink bottling enterprises for purposes of mergers and acquisitions, testified that the value of a franchise was entirely dependent upon the ability of the management of the entity utilizing the franchise in bottling operations; another expert highly qualified in the evaluation of Coca-Cola bottling companies was of the opinion that a Coca-Cola franchise, per se, had no value, absent other necessary elements such as management, goodwill, and going concern value; and the third, also highly qualified in the evaluation of Coca-Cola bottling companies, testified that, in evaluating plaintiff alone, he found no value whatever to the franchise. As this witness put it, during the tax years here relevant the franchise, "separate and apart”, was "valueless” to plaintiff.
I am unable to say that the trial judge could not or should not view this testimony as reasonable, or that although it was reasonable he could not or should not take it into account in appraising the intention of the parties to the 1958 agreements — the basic issue in the case.
(f). The trial judge accepted as credible the testimony of Mr. Simmons (which the court here rejects) explaining the footnotes in the Ernst & Ernst reports which the court quotes in its footnote 16, and also giving the intent underlying the 1956 and 1958 arrangements.3
(g). As for the statements which the court’s opinion refers to and quotes in its footnote 15, the trial judge thought these statements to be vague and ambiguous labels or descriptions which, when viewed in context and in light *386of the whole record (including Mr. Simmons’ testimony), fail to rebut the clear and convincing proof of a quite different substantive transaction.
There are, of course, contrary aspects of the case which the court marshals in support of its position, but for me, as a reviewing judge, these other elements do not sufficiently swing the balance against the trial judge’s determination. For one thing the court much overstresses its view of the objective value of the franchise and seems to assume throughout its opinion that, because in its view the franchise had substantial value, the 1958 agreements necessarily had to provide for royalty payments. As I have emphasized, that seems to me to misstate and avoid the essential issue in the case — the intent of the parties (see text and note 1, supra).4 Moreover, I cannot accept the court’s discrediting of plaintiffs witnesses whom the trial judge expressly accepted, and the court’s acceptance of the testimony of defendant’s witnesses the trial judge refused to credit. Under our Rules and consistent practice, this careful trial judge’s conclusions as to credibility deserve very great weight.
Finally, I note that, even if the trial judge’s determination is rejected, there is no finding that the presumed royalty payments exceeded the "break even” point necessary to make plaintiff a personal holding company, and it cannot be said, without considerable further delving into the record and the facts, that on that point defendant’s expert should be accepted without question.5 Even if the trial judge is wrong, the case should be remanded for the further determination he found it unnecessary and burdensome to make. The court’s short-form discussion of the point is not an adequate substitute for the painstaking *387analysis which should be made by the trial judge who heard the witnesses.
This is the basis on which the case was tried. The trial judge’s opinion states (pp. 24-25):
"Defendant does not contend that plaintiff and the two partnerships could not validly agree to a 20 cents per gallon surcharge payment factor as a partial payment for the use of tangible assets, rather than as a payment (in whole or in part) for the right to use plaintiffs franchise. Nor does defendant contend that, if the parties actually did reach such an agreement, tax consequences adverse to plaintiff would follow. Defendant’s position is, rather, that the entire 20 cents per gallon surcharge payment factor was in fact intended to be, and was, a royalty (or rental) payment for the use of plaintiffs franchise.”
The trial judge expressly found that each of these witnesses was a qualified, experienced expert, and was "credible” and "impressive.”
The trial judge said of Mr. Simmons: He "was candid, knowledgeable, and articulate, and his demeanor while testifying was most impressive. He was, in short, a highly persuasive and credible witness.” The trial judge explicitly rejected defendant’s charge that Mr. Simmons was very much concerned that the taxpayer prevail in this case (a charge which the court seems to accept today).
I do not read the court’s order in 206 Ct. Cl. 864, 866 (1975), as necessarily imposing a floor of 5 cents per gallon as the royalty for the franchise or as preventing the trial judge from finding, after trial, that in fact no royalty at all was paid. I understand the court’s orders to leave the entire question of what, if any, part of the 20¢ gallonage fee was a royalty to the trial judge. The reference to "five cents per gallon or twenty cents per gallon” seems to me merely illustrative of the issue to be decided as the court saw it on the basis of the parties’ then presentation.
The trial judge found in his finding 37(d) that "none of the evaluation witnesses for either side was wholly free from error, of greater or lesser degrees of seriousness, in his opinions, calculations, and testimony, and that not all of such witnesses were equally credible, impressive, and persuasive.”