(dissenting).
There seems to me to be no material dispute concerning the facts. Petitioner received in the usual course of its business approximately 327 new 1942 model Buick automobiles. Of that number it assigned 28 to uses which were essential to the conduct of its business and which were used in the business or held available for such use. It is not suggested or contended that 28 was an unreasonable number of cars to be assigned, in view of the magnitude and character of its business. All of the 28 cars were, in the usual practice of the business, to be ultimately sold. Petitioner claimed they were primarily held for use in the business. The Commissioner contended that since they were to be ultimately sold, they were held primarily for sale and ipso facto could not have been primarily held for use in the business. The Tax Court agreed with the Commissioner but based its acquiescence in the Commissioner’s position on the ground that as a matter of fact the evidence warranted the inference that the cars were held primarily for sale. I find no basis in the evidence for that inference. Hence, in my judgment the conclusion reached by the Tax Court can be sustained only on the theory that the Commissioner urged, i. e., that since the cars were acquired for the ultimate purpose of sale they must be said to have been acquired primarily for that purpose. If that be true, then no new car may be acquired, used by a dealer in its business and later sold, without being held to have been primarily acquired for sale. But this construction of the applicable sections of the Revenue Act quoted in the majority opinion was rejected in Albright v. United States, 8 Cir., 173 F.2d 339 and United States v. Bennett, 5 Cir., 186 F.2d 407, and I think rightly so.
I reach the conclusion that this case should be governed by the principles announced in the Albright and Bennett cases.