concurring in part and dissenting in part:
I concur in part II of the majority opinion; for the reasons discussed therein I feel section 482 was properly invoked and plaintiffs motion to strike was properly denied.
I dissent, however, from the majority’s denial of defendant’s motion for summary judgment.
The opinion issued by the majority judicially amends section 482 to require a finding of a tainted transaction (i.e., motives of tax avoidance or evasion) when dealing with sections 311 and 301 (with the necessary implication that this is the result for all the nonrecognition provisions found in the Code).
Such a result is inconsistent with the plain language of section 482 which states in the disjunctive that an allocation may be ordered by the Commissioner if he determines it is necessary "in order to prevent evasion of taxes or clearly to reflect the income.” (Emphasis supplied.) The statute plainly provides alternative bases for applying section 482. Also, Treas. Reg. § 1.482-l(c) provides that the Commissioner’s authority to determine true taxable income extends to income distortion resulting from inadvertence. As it was stated in B. Bittker, J. Eustice, Federal Income *440Taxation of Corporations and Shareholders (4th ed.) (Bittker & Eustiee), p. 15-24: "it must be emphasized that tax-avoidance motives are not necessary for application of [section 482].”
An examination of the case law discloses that section 482 is a product of various themes: assignment of income principles, tax avoidance, general deduction theories, and clear reflection of income. While often these are applied in conjunction with one another, e.g., Basic Inc. v. United States, 212 Ct. Cl. 399, 549 F. 2d 740 (1977), nowhere other than the majority’s opinion is there any authority for their required conjunctive use.
Section 482 is a major instrument of the Code and the Commissioner to ensure fairness in transactions occurring between controlled entities. Treas. Reg. § 1.482-l(b)(l) defines the scope of section 482: "The purpose of section 482 is to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer, by determining, according to the standard of an uncontrolled taxpayer, the true taxable income from the property and business of a controlled taxpayer.” See Young & Rubicam, Inc. v. United States, 187 Ct. Cl. 635, 654, 410 F. 2d 1233, 1244 (1969); H. R. Rep. No. 2, 70th Cong., 1st Sess. 16, reprinted in 1939-1 C. B. (Vol. 18A) 384, 395; S. Rep. No. 960, 70th Cong., 1st Sess. 24, reprinted in J. Seidman, Seidman’s Legislative History of Federal Income Tax Laws 1938-1861, p. 522.
The majority opinion attempts to locate the justification for this new requirement in the tension existing between the policies of the nonrecognition provisions and the policies of section 482. Starting from the premise that the nonrecognition provisions contemplate and authorize distortion of income, it is held that where this "contemplated and authorized” distortion is present the only time section 482 may be used is when the transaction creating the distortion is tainted.
In applying their rule to the instant facts, the majority vacates the Commissioner’s allocation. They find the escape from reporting any income on the sale of the appreciated stock transferred by a dividend in kind (which escape was provided by RSD’s section 172 net operating loss (NOL)) was *441a distortion which was "contemplated and authorized by Congress.”
Two circuit courts have, however, directly faced the issue of a conflict between section 482 and a nonrecognition provision.1 Both circuits held that in such a conflict the specific results allowed from a strict adherence to the Code provision fall to the application of section 482, provided such allocation is not an abuse of discretion by the Commissioner.2 National Securities Corp. v. Commissioner, supra note 2; Rooney v. United States, 305 F. 2d 681, 686 (9th Cir. 1962). Thus, the majority’s analysis is not only in conflict with the statute and Regulations but also with two circuit court analyses.
The majority also errs in a more fundamental manner by its misapprehension of the distortion actually "contemplated and authorized by Congress.” The essence of a nonrecognition provision is the deferral of gain. "Nonrecognition is intended to be merely a postponement of the inclusion of the gain * * * until a disposition occurs which does not qualify for nonrecognition status. It is not intended to produce forgiveness of the tax.” (Emphasis supplied.) S. Surrey, W. Warren, P. McDaniel, H. Ault, Federal Income Taxation (1972 ed.) Vol. I, p. 870.
*442In the instant case we are specifically concerned with section 311(a)(2) (no gain to Ruddco on the distribution) and section 301(d)(2)(B) (carryover basis to RSD in the ACC stock). Thus, while section 311(a)(2) does indeed prevent, on its face, Ruddco from recognizing gain on our facts,3 section 301(d)(2)(B) concomitantly preserves that gain to be recognized at the first realizable event.4 This preservation of gain effectuated by section 301(d)(2)(B) is therefore consistent with the rule that in a nonrecognition transaction gain is only deferred. Hence, the distortion actually authorized by section 311(a)(2) and 301(d)(2)(B) is a deferral of recognition of gain and the allowance of the distributee (RSD) to report such gain. This distortion is to end with RSD. Under our facts, once another Code section impacts on the transaction then section 482 is applicable.
The majority finds that RSD’s escape from reporting any gain by virtue of the NOL was both contemplated and authorized by. Congress. No reason, however, is given for the majority’s disregard of the normal rules of nonrecognition transactions or, specifically, those relating to a dividend in kind.
I feel it is improper to hold that the intervention of the NOL was contemplated and authorized by Congress. To do so totally ignores the general and well-respected policing function given to section 482 by Congress. To be sure, Congress was aware that subsequent events could potentially cause a total escape from all tax after a nonrecognition transaction. This awareness, however, was precisely the reason for the enactment of section 482: Congress intended section 482 to prevent income distortion resulting from a strict application of specific Code provisions by controlled entities. See note 2, supra. Thus, the majority’s analysis resting on a selected portion of the general concept of nonrecognition provisions is disingenuous.
Under section 482 the Commissioner is to evaluate the income picture as if the entities were uncontrolled and determine their true taxable income.5 Treas. Reg. § 1.482-*4431(b). True taxable income is to be determined by the taxable income which would have resulted if the controlled taxpayer had dealt with the other controlled entity at arm’s length. Treas. Reg. § 1.482-l(a)(6). The Commissioner is not limited to "fraudulent, colorable, or sham transaction[s].” Treas. Reg. § 1.482-l(c). Finally, in contrast to the consolidated return provisions, each entity is to be treated as a distinct and separate unit. See Bittker & Eustice at p. 15-23.
Therefore, under the standard of review this court and others have established, see note 5, supra, the proper test for determining whether the instant transaction clearly reflected the income of Ruddco is the following: Was it arbitrary for the Commissioner to determine that if Ruddco was not controlled by RSD, it would not have made the dividend of substantially appreciated stock? That is, is it arbitrary to find Ruddco would have demanded compensation before it relinquished a gain of $1,155,567?
I find no arbitrariness in such a determination. It is reasonable to assume Ruddco would have demanded compensation before divesting itself of the appreciated stock and thus Ruddco would have recognized the approximate $1,155,567 in taxable gain.6 The total escape of this tax by any of the controlled entities is a material distortion of income and here, taint aside, the Commissioner can allocate the gain to Ruddco.
Additionally, I do not find it axiomatic, as does the majority, that if a distributee holds onto the stock for several years there can be no allocation under section 482. It is impossible to posit such an axiom because an allocation under section 482 depends upon the facts and circumstances of each transaction. Certainly the longer a stock is held the more arbitrary an allocation back to the distrib*444uting corporation appears. But, again, we must inquire: Is the allocation arbitrary?
The majority’s analysis of the instant case should be through the structure established by the statute as written and the Regulations and under the review procedure this court has followed in the past. We should not preempt the function of Congress and amend the statute because of problems perceived and voiced by the Bar but unremedied by Congress.
So have the Regulations. Treas. Reg. § 1.482 — 1(d)(5) provides:
Section 482 may, when necessary to prevent the avoidance of taxes or to clearly reflect income, be applied in circumstances described in sections of the Code (such as section 351) providing for nonrecognition of gain or loss. See, for example, National Securities Corporation v. Commissioner of Internal Revenue, 137 F. 2d 600 (3d Cir. 1943), cert. denied, 320 U. S. 794 (1943). [Emphasis supplied.]
National Securities Corp. v. Commissioner, 137 F. 2d 600, 602 (3d Cir.), cert. denied, 320 U. S. 794 (1943), provides:
* ’ ’ Section 45 [now section 482] is directed to the correction of particular situations in which the strict application of the other provisions of the' act will result in a distortion of the income of affiliated organizations. In every case in which the section is applied its application will necessarily result in an apparent conflict with the literal requirements of some other provision of the act. If this were not so Section 45 would be wholly superfluous. We accordingly conclude that the application of Section 45 may not be denied because it appears to run afoul of the literal provisions of Sections 112(b)(5) and 113(a)(8) [now sections 351 and 362] if the Commissioner’s action in allocating under the provisions of Section 45 the loss involved in this case was a proper exercise of the discretion conferred upon him by the section.
By Section 45 Congress has conferred authority upon the Commissioner to allocate deductions "if he determines” that such allocation "is necessary”. This is a broad discretion, limited only in that the necessity must arise "in order to prevent evasion of taxes or clearly to reflect the income.” G. U. R. Co. v. Commissioner, 7 Cir., 1941,117 F. 2d 187.
It should also be stressed that this analysis was specifically approved by Treas. Reg. § 1.482 — 1(d)(5). See note 1, supra.
But compare Treas. Reg. § 1.311 — 1(e)(1); S. Rep. No. 1622, 83d Cong., 2d Sess. 231 (attribution of income in situations similar to Commissioner v. First State Bank of Stratford, 168 F. 2d 1004 (5th Cir.), cert. denied. 335 U. S. 867 (1948)).
An example illustrating this principle is found in Bittker & Eustice at p. 7-64.
This court and others have long held the Commissioner to have "broad discretion *443in reallocating income.” E. I. du Pont de Nemours & Co. v. United States, 221 Ct. Cl. 333, 351, 608 F. 2d 445, 455 (1979), cert. denied, 445 U. S. 962 (1980). See, e.g., Eli Lilly & Co. v. United States, 178 Ct. Cl. 666, 676-677, 372 F. 2d 990, 997 (1967); National Securities Corp. v. Commissioner, supra note 2; Edwards v. Commissioner, 67 T. C. 224, 230 (1976).
The issue of whether section 482 may properly test a dividend situation involving a wholly owned subsidiary has already been (properly) answered in the affirmative. Northwestern National Bank of Minneapolis v. United States, 556 F. 2d 889, 891-892 (8th Cir. 1977).