I dissent.
The • real issue here is the effect to be given by an appellate court to Rule 52(a), Federal Rules of Civil Procedure, 28 U.S. C.A., made applicable to the review of decisions of the Tax Court by Section 1141(a) of the Internal Revenue Code, 26 U.S.C.A. § 1141(a), and to the construction given Rule. 52(a) by the Supreme Court of the United States in United States v. United States Gypsum Co., 1948, 333 U.S. 364, 394-395, 68 S.Ct. 525, 92 L.Ed. 746. See also, United States v. Yellow Cab Co., 1949, 338 U.S. 338, 70 S.Ct. 177.
In Commissioner of Internal Revenue v. Penn Athletic Club Bldg., 3 Cir., 176 F.2d 939 we held, page 943, that under Rule 52(a) “It is our function merely to determine whether the Tax Court erred as a matter of law and whether its fact finding wag ‘clearly erroneous’.” (Emphasis supplied.)
In the instant cases the majority of the Tax Court, after consideration of the evidence, came to the factual conclusions that the “rents” and “royalties” paid by the taxpayers were in reality “gifts” of their partnership income and as such were not deductible as ordinary or necessary expenses of the taxpayers’ business; that the purposes of the trusts were “ * * * to provide financial security for the petitioners’ children and, at the same time, leave the partnership coal business and the properties used therein undisturbed under the continued management and control of the partnership consisting of petitioners (taxpayers) ”; and that the taxpayers “did not intend that any; benefit, advantage or consideration should result to or be received by the partnership in its business by the arrangement under scrutiny.”
In connection with the majority’s factual conclusions it may be pointed out that one of the taxpayers testified that the lease back from the trustee was made for a five year term because that “was a reasonable time to figure on exhausting” the coal in the leased tract and that the latter would not be worth “anything to amount to” thereafter.
The dissent in the Tax Court discloses the existence of an area of conflicting inferences with respect to the transaction involved. On that score it need only be said as we did in the Penn Athletic Club case, supra, 176 F.2d at page 944: “ * * * the finding of the Tax Court was supported by evidence which permitted at most conflicting inferences (as was evidenced by the contra fact finding of the minority of the Tax Court) and is therefore conclusive here.”
•For the reasons stated I would affirm the decision of the Tax Court.