(dissenting).
Believing that the decision of this court in Hays’ Estate v. Commissioner, 181 F.2d 169, is controlling here, and that it cannot be substantially distinguished, I dissent from the judgment of affirmance.
Since the decision of the court in this case seems to turn on likening it to the C. I. R. v. Holmes case from this court, 148 F.2d 740, and differentiating it from the Hays case, I desire to point out that while two of the judges, who sat in the Holmes case, sat also in the Hays case, one of those judges, Judge McCord, while dissenting in the Holmes case, concurred in the Hays case. I feel, therefore, that the Hays decision is not just another instance of a court convinced against its will being of the same opinion still, but that it is an instance of the careful differentiation of cases and that it results in the confinement of a principle within its proper bounds, instead of,, as seems to me to be the case with the majority opinion, enlarging it beyond due proportion.