(dissenting):
The majority’s opinion reveals a perceptive and plausible analysis of the transaction between Gray and Cameron.1 What is disturbing, however, is the cursory treatment of an issue of dominant interest to a Court of Appeals, namely, the standard of review. That standard is established by 26 U.S.C. § 7482(a):
“The United States Court of Appeals shall have exclusive jurisdiction to review the decisions of the Tax Court . in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury >>
And, Rule 52(a), Fed.R.Civ.P., provides in relevant part that “Findings of fact shall not be set aside unless clearly erroneous . .” As noted in Estate of Chism v. Commissioner, 322 F.2d 956, 960-61 (9th Cir. 1963):
“Tax Court determinations of fact, including factual inferences from undisputed basic facts, may be set aside on appeal only if they are clearly erroneous. Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218.”
Accord, Rockwell v. Commissioner, 512 F.2d 882, 884 (9th Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975).
I.
The economic reality of the taxable transaction we are concerned with may be stated quite simply. The taxpayers are a family group, headed by John D. Gray, who owned all the stock of Yarg Corp. After the transaction, the taxpayers had more than 95% of the corporate assets, and Cameron had the Yarg stock. The balance which remained in Yarg was to cover the fee for Cameron’s services as agent for the taxpayers (4V2% on the total assets plus less than $1,000 to cover the costs incident to the transaction).2
*761The Tax Court found - that “though in form there was a purchase and sale in substance the petitioners received the assets of Yarg in a distribution upon liquidation.” John D. Gray, 56 T.C. 1032, 1067 (1971). Without any reference to the painstaking findings of the Tax Court, nor the detailed recital of evidence to support those findings, the majority opinion takes a different view of the transaction. Despite the Tax Court’s determination that the purported “sale” had no economic reality, the majority states:
“We accept the sale format in which the taxpayers chose to cast their transaction.”
From that adopted premise the following-thesis is developed. Since the “sale” could not be completed before the Omark preferred was redeemed, the redemption was from Yarg, followed by a sale. Obviously, the taxpayers would rather have sold the stock in Yarg with the preferred as one of its assets than to have received the preferred in liquidation and have it redeemed from them. Although the preferred had a fair value of only $1,000,000, Gray caused Omark to redeem it at its par of $1,500,000. However, the Tax Court made the determination that “Cameron and Dabne purchased nothing; they rather performed services for a fee . . . ” id. at 1068, and that Cameron and Dabne “were merely agents of the petitioners for purposes of the liquidation of Yarg” and also redemption. Id. at 1070.
II.
It is often difficult to make a distinction between what is fact and what is law. See generally Paul, Dobson v. Commissioner: The Strange Ways of Law and Fact, 57 Harv.L.Rev. 753-851 (1944). However, that does not leave .us adrift in a wonderland, free to choose which of “at least five plausible characterizations” perceived by the majority we should apply to the transaction at issue. In this case signposts exist, for it has been authoritatively determined that both aspects of the Tax Court’s determination, that is, (1) that in economic reality there was no sale, and (2) that the assets of Yarg were received in liquidation, are determinations of fact.
As to the first, in Commissioner v. Pope, 239 F.2d 881, 883 (1st Cir. 1957), Circuit Judge Woodbury made the point that the Tax Court’s determination of whether or not a transaction is in substance a sale is one of fact and, accordingly, must be tested by a “clearly erroneous” standard of review.
“Whether any given transaction on its established facts constitutes in law a ‘sale,’ or, for instance a ‘lease’ or perhaps a ‘mortgage,’ is certainly a question of law. But whether a particular transaction concededly falling within the legal definition of a ‘sale’ is bogus, a fiction without economic reality, a sham, is with equal certainty a question of fact. Thus, under a principle too well established to require citation of authority, the Tax Court’s finding that the sale in question was a genuine transaction having economic reality must stand unless we can say on the record as a whole that the finding is ‘clearly erroneous.’ This we are not prepared to do.”
The Tax Court’s opinion supports in convincing detail its finding that the Gray-Cameron transaction was not in substance a sale. It found:
“In order to place any credence on the petitioners’ contentions that the form of the transactions at issue reflects reality one must be able to accept the premise that Cameron and Dabne were more than a strawman, a conduit, an agent of the petitioners. This we cannot do. Cameron and Dabne bought cash encased in a corporate shell. The net effect of their machinations was that they transferred $1,681,400 (Canadian dollars) in cash in exchange for $1,761,397 (Canadian dollars) in cash. Cameron and Dabne purchased nothing; they rather performed services for a fee of $79,997 ($1,761,397 less $1,681,400). Gray attempted to use these investment banking corporations as filters, to separate the elixir of capital gain from the dross of dividend.
“In support of this conclusion we note several salient facts.” *76256 T.C. at 1068 (footnotes omitted). These facts, which are fully set out in the Tax Court’s opinion and which need not be repeated here, leave no doubt that this finding cannot be viewed as “clearly erroneous.”
The Tax Court’s determination that the transaction was a liquidation is similarly one of fact which can be set aside only if clearly erroneous. See Spangler v. Commissioner, 323 F.2d 913, 916-17 & n.8 (9th Cir. 1963). In United States v. Cumberland Public Service Co., 338 U.S. 451, 454, 70 S.Ct. 280, 281, 94 L.Ed. 251 (1950), the Supreme Court, in commenting on its earlier decision in Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945), stated:
“The Circuit Court of Appeals took a different view of the evidence. In this Court the Government contended that whether a liquidation distribution was genuine or merely a sham was traditionally a question of fact. We agreed with this contention, and reinstated the Tax Court’s findings and judgment.”
Here too, the sharp insight which permeates the Tax Court’s opinion points out that in preparation for the transaction all of the assets of Yarg, except the preferred stock, were disposed of to Gray for cash at book value. Yarg had no outstanding liabilities. Furthermore, the so-called “purchasers” of the Yarg shares had assured the Grays that Yarg would earn no profits until after June 30, 1963. Thus, when the Yarg books and records, together with the Yarg stock, properly endorsed, were delivered and placed in escrow, Yarg was already out of business. Its investment activities had come to an end; it had no employees, it had nothing but cash and the 15,000 shares of Omark preferred. This was on September 21, 1962.
The Tax Court expressly found:
“As of September 21, 1962, the distribution in liquidation was complete. Through his agents, including Cameron and Dabne, Gray obtained complete dominion and control of all the assets of Yarg; at this time composed of cash and the Omark 1960 preferred stock.”
56 T.C. at 1070.
In arriving at its finding that the transaction was a liquidation and not a sale in this case, the Tax Court considered evidence bearing upon several different steps in the transaction. It was appropriate for the Tax Court to determine what the inter sese relationship was among these steps.
“Whether an apparently integrated transaction shall be broken up into several separate steps [as the majority was done] and whether what apparently are several steps shall be synthesized into one whole transaction is frequently a necessary determination in deciding tax consequences. Where no statute or regulation controls, the Tax Court’s selection of the course to follow is no more reviewable than any other question of fact.”
Dobson v. Commissioner, 320 U.S. 489, 502, 64 S.Ct. 239, 247, 88 L.Ed. 248 (1943) (footnote omitted).
The finding of the Tax Court that the redemption of the Omark preferred was from the petitioners following the liquidation was not clearly erroneous.3 There is *763ample support for the Tax Court’s finding that at all times “. . . Gray was firmly in control of virtually all events.” 56 T.C. at 1073. The Tax Court was not hoodwinked by the attempt to disguise this liquidation as a sale. Can anyone doubt that the preferred (worth only $1,000,000) would never have been redeemed for $1,500,000 if it was not certain that Gray was going to get the money.
III.
It is well established legal doctrine that questions of fact are the private domain of the Tax Court. Our only function “is to decide . . . whether there was substantial evidence before the Board [Tax Court] to support the findings made.” Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 736, 79 L.Ed. 1343 (1935). The Tax Court’s determination that the $1,500,000 was paid after the corporation was in liquidation, and that Cameron was acting merely as agent to return the preferred to Omark and pay over the money to Gray, cannot be moved from the realm of fact to the realm of law.
It is not enough to assert by way of an ex cathedra statement that:
“It matters not whether the Tax Court’s conclusion that the taxpayers received the redemption be regarded as a mistake of law or an erroneous finding of fact. If it is the former, which we believe it to be, it is our duty to correct it; if it is the latter, we hold it not only erroneous but clearly so.”
This legerdemainic departure from the facts found by the Tax Court appears to involve a policy of pure pragmatism, an abandonment of all attempt to abide by the legislatively mandated standard of review. The opinion moves far beyond traditional principles to treat as law what should be regarded as fact. However, when measured by the proper standard of review, it is amply clear that there was substantial evidence before the Tax Court to support the findings made, which are therefore not “clearly erroneous.”
I would affirm the judgment of the Tax Court on Judge Sterrett’s opinion, 56 T.C. 1032 (1971). Accordingly, I dissent.
. Dabne was Cameron’s partner in this transaction. The majority opinion refers to Gray and Cameron as the participants, and so shall I.
. The 4'/2% fee was not simply calculated from the financial result of the transaction. The majority opinion quotes in part from Cameron’s proposal drafted in the office of Gray’s lawyer. Enlarging that quote makes this point very clear:
“This letter will be our undertaking that we will ... purchase all of the issued shares of a company known as Yarg Ltd. for cash in an amount equal to the net book value less 4V2 percent of undistributed income. .
“Under the terms of an escrow agreement to be drawn, it is understood that we will not be bound to complete the purchase until the Company’s assets are shown to be cash and that its only liabilities will be capital and surplus. . . .”
John D. Gray, 56 T.C. 1032, 1051-52 (1971) (footnote omitted).
. “As further support for our finding of the subservient nature of Cameron’s and Dabne’s role we note that the letter requesting redemption by Omark I960 was drafted by Gray’s agent. When one purports to sell cash in corporate solution the burden is surely particularly severe on the seller to show that the only purpose served is not tax avoidance.
“Once the fog of Cameron and Dabne is blown away by the fresh air of economic reality the substance of the transactions is clearly visible. On September 26, 1962, the petitioners, collectively, had $1,681,400 (Canadian dollars) in cash .... The question now to be answered is how did this cash and these assets come to rest with petitioners.
“In view of Gray's intent to terminate the petitioners’ interest in Yarg the only plausible explanation is that Yarg was liquidated. The petitioners received its assets, and then Omark 1960 redeemed its preferred stock from the petitioners. The term ‘liquidation’ is not defined by either the Code or the regulations. The question of whether a liquidation has occurred is one of fact.
Our conclusion that what purported to be a *763sale was in fact a liquidation finds considerable support from the fact that, at the conclusion of the various transactions the petitioners had in hand the precise assets formerly held by Yarg although the Omark 1960 preferred stock was to be redeemed for cash, hardly an undesirable exchange. . . .
As of September 21, 1962, the distribution in liquidation was complete. Through his agents, including Cameron and Dabne, Gray obtained complete dominion and control of all the assets of Yarg; at this time composed of cash and the Omark 1960 preferred stock.”
56 T.C. at 1069-70.