(concurring) .
I concur in affirmance of the Tax Court’s decision.
However, I believe that my brothers have misapprehended the basis upon which the Tax Court rested its decision. The majority states that it would regard as erroneous the view that Mrs. Weddle bore the burden of proving that her primary motivation was to protect her trade or business as a corporate employee rather than to protect her substantial investment in Terris Brothers, Inc. I do not agree. Moreover, I believe that the Tax Court properly applied this standard in sustaining the Commissioner’s deficiency assessment.
Where a corporate employee and stockholder makes loans to the corporation two fundamental motivations will inevitably be involved, that of protecting the taxpayer’s investment in the corporation and that of protecting his salary interest. Unless the salary interest is so small as to be of negligible value its preservation will surely weigh in the mind of the taxpayer in advancing monies to the corporation. Consequently, to measure the proximateness of the relationship between the loan and the taxpayer’s status as a corporate employee by asking whether the latter provides a “significant” — although not the dominant — motivation is to pose a question which invariably will be answered in the affirmative. To import notions of proximate causation distilled from the great body of tort law into consideration of § 166 is of little value, because factors such as time, space, and foreseeability, and the very basic notion of causation in fact which underlies the law of proximate causation are by their nature incapable of application to a problem which requires dissection of different motivations toward a similar objective. Were I disposed to accept as proper the standard proffered by my brethren, I should feel constrained to support reversal of the Tax Court’s determination, inasmuch as I cannot see how one could deny that Mrs. Weddle was “significantly” motivated by a desire to preserve her salary.
But such an expansive definition— which would bring within the ambit of § 166 any loan which is “significantly” motivated by a desire to preserve the taxpayer’s salary interest — is manifestly inconsistent with the long course of decisions in which that section and its predecessors have been considered. These decisions have taught that the courts must take great care to “distinguish bad debts losses arising from [the taxpayer’s] own business and those actually arising from activities peculiar to an investor concerned with, and participating in, the conduct of the corporate business.” Whipple v. Commissioner, 373 U.S. 193, 202, 83 S.Ct. 1168, 1174, 10 L.Ed.2d 288 (1963). In attempting to draw this distinction, as the Tax Court wisely noted in considering Mrs. Weddle’s claim, we have no “scales sufficiently sensitive to be able to ascertain the exact percentage of motivations which impelled [her actions],” and therefore “we look to the main and dominant reason for [her actions].”
Computed by reference to the purchase price of the stock which the corporation bought from one of the daughters, Mrs. *853Weddle’s stock was worth approximately $195,000 in March 1951, when she first endorsed the corporation’s notes upon the demand of the bank. During this year her salary was $18,500. The substantial disparity between the value of her total investment in the company and the value of her salary might alone be sufficient to support the Tax Court’s finding of fact that her endorsements were motivated primarily by a desire to protect her investment rather than her salary. But additional factors add weight to that determination. As the owner of the controlling interest in the corporation, Mrs. Weddle exercised the right to hire corporate employees and set their salaries. Although Mrs. Weddle’s salary did decrease as the financial condition of the corporation gradually deteriorated, Mrs. Weddle herself determined the level of her salary. A variety of reasons, including possible tax consequences, may motivate a controlling shareholder in Mrs. Weddle’s position either to take or forgo salary. The relationship between the value of such a shareholder’s salary and the value of the total investment seems to me to be of negligible importance. To attach significance to such a unilateral determination of salary would be to invite evasion of the tax laws. Moreover, Mrs. Weddle herself testified at one point that the reason the bank required her endorsement was that since she was “owner ■of the business, practically owner of the business, it was up to me to guarantee the security of their loan.”
For these reasons I believe the Tax Court applied the proper criteria and was fully justified in concluding that Mrs. Weddle’s primary and dominant motivation for endorsing the corporation’s notes was to protect her substantial investment in the business. My objections to the majority view are, in sum, threefold. First, if logically applied to any fact situation of which one might conceive, the majority’s standard would result invariably in a judgment for the taxpayer. Secondly, the majority has refused to follow the logic of its own standard as applied to the facts of this case. Finally, I can see no sense in this court’s rejecting the Tax Court’s easily understood and more easily applied standard and choosing in its place as vague and ambivalent a notion as “significant motivation.”