(concurring) :
I concur in Judge Oakes’ thorough and carefully considered opinion. However, I wish to disassociate myself from the statement in Judge Timbers’ separate concurrence to the effect that if Judge Levet’s findings and conclusions are as correct as he believes them to be, there is ample scope on remand to reach the same result.
There were no findings of fact by the district court with respect to the matter which we, upon appeal, have introduced as a key issue governing Part I, i. e., whether the ' taxpayer may have been motivated by a desire to lessen income taxes. What evidence there is in the record indicates rather convincingly that the taxpayer’s sole motive was satisfaction of a requirement of the New York State Motor Vehicle Department to the effect that only one retail automobile dealer could be licensed to operate out of a single showroom.1 Other than to indi*261cate that the taxpayer was not using intercorporate sales for the purpose of avoiding income taxes, its method of meeting the Motor Vehicle’s requirement has no relevancy to the question of what price is to be used for imposition of federal excise taxes. Nor does it indicate any “unclean hands” on the taxpayer’s part. The existence of the separate companies and the conduct of business out of a single showroom licensed to the parent was open and obvious to all, including the Motor Vehicle Department. The procedure was followed “with the knowledge and sanction of the Motor Vehicle Bureau of New York,” and there was nothing improper about such a method of doing business. The parent was licensed to operate the single showroom and apparently the sole reason for the formation of a separate subsidiary bearing the name of Hoffman-Porsche was to satisfy the foreign manufacturer’s requirement that the name “Porsche” be used in the corporate name of the importer.2
Thus, upon the present record, a finding that the taxpayer had satisfied its burden of proving the absence of a tax avoidance motive would be justified, if not compelled. However, I have concurred in the remand so that the learned district judge may now consider that issue in the light of the present record and such additional evidence as the parties may wish to offer.
. The taxpayer’s Pre-Trial Memorandum (at 2) which was incorporated by reference in the district court’s Pre-Trial Order dated July 31, 1969 (at 2) stated:
“The parent company (plaintiff) was used merely as a conduit, since and because the plaintiff was the tenant in the retail outlet, and the Motor Vehicle Regulations of New York prohibited more than one tenant to be in a retail outlet. This procedure was done and made with the knowledge and sanction of the Motor Vehicle Bureau of New York, which Department shall be subpoenaed; in addition to plaintiff’s secretary, Mr. Thomas J. Kelly, and its certified public accountant, Philip Miller, as witnesses, to testify as to the adoption of the above procedure.”
At trial Thomas J. Kelly, the taxpayer’s secretary testified:
“Q. Could you explain why Hoffman-Porsche Car Corporation and Hoffman Motors Eastern Division in selling at retail sold through Hoffman Motor Car Company, Inc.?
“A. Yes, because we had our initial license with the New York State Motor Vehicle Department in the name of Hoffman Car Corporation and when we applied for a second license I was informed by a gentleman now deceased, Mr. Gray of the motor vehicle department, that it was not possible, contrary to the regulations and policies of the motor vehicle department, to issue two retail licenses for a different manufactured product in the same premises. You only could have one license for one premises.
* * * * *
*261“Mr. Mann: Your Honor, we are not using that statement to prove the existence or nonexistence of the policy of the State of New York. We are using that merely to show that the state of mind and as part of the res gestae of Hoffman Motors’ decision to conduct a business in a given manner, where in fact it was or was not the policy of the state is not truly the relevant issue here.
“The Court: Why do you go into it, then?
“Mr. Mann: It is important for the purpose of this case to establish why Hoffman Motor decided to use a transaction which in form the government has said caused a taxable event which we claim didn’t exist. And I think it is quite important to demonstrate why the company decided to operate in this manner and that they did have in their own minds a bona fide reason for setting up this type of transaction.” (App. at 51-52)
The taxpayer submitted Proposed Findings of Fact and Conclusions of Law, dated April 18, 1972, conforming to the foregoing uncontroverted evidence. (See Proposed Findings 9-12)
. Eastern’s existence as a separate subsidiary arose from the fact that it succeeded to another Hoffman subsidiary, Mercedes-Benz Distributors, Inc., which from 1958 to May 1957 had directly handled retail sales through its own showroom. In 1957 its separate New York State Retailer’s License was surrendered and Eastern imported and marketed Mercedes-Benz cars through the Hoffman Motors showroom. At all times Hoffman Motors acted merely as a conduit.