(concurring in result).
It is my belief that the majority’s opinion is based on a too broad interpretation of what an “inconsistent position” is. Under its holding, all alternative arguments urged by taxpayers which are adopted by the court making the determination, will always be regarded as an “inconsistent position” within the meaning of section 1311(b) (1). The narrow issue with which we are confronted is whether taxpayers, by making an alternative argument, took an inconsistent position or were they merely successfully pointing out an inconsistency in the Government’s main position. In my view, the answer to that question depends on whether or not the court, in adopting the alternative argument in its determination, is required to make an independent determination as to the merits of the alternative argument urged. If the Commissioner’s position on the main question is logically consistent with a decision either way on the question raised by the alternative argument, then the taxpayers have maintained an inconsistent position.1 E. g., Cory v. Commissioner, 29 T.C. 903 (1958). However, if taxpayers in making an alternative argument merely point out to the court that if it adopts the position on the main issue urged by the Commissioner, a consistent application of that position requires the adoption by the court of the taxpayers’ alternative argument, then taxpayers have not maintained an inconsistent position but have merely pointed out an inconsistency in the Government’s position. E. g., Heer-Andres Investment Co. v. Commissioner, 22 T.C. 385 (1954); Estate of Abraham Goldstein v. Commissioner, T.C.Memo 1963-258, P-H,T.C. Memo, par. 63,258 (1963).2 In the latter *651situation the position taken by the Commissioner absolutely requires a decision for the taxpayers on their alternative argument, while in the former, the court can adopt or reject taxpayers’ alternative argument without affecting its decision on the main issue.
With regard to the instant taxpayers, it did not follow of necessity from the Commissioner’s dividend treatment of the amounts received, that the money received in 1949 would be reportable only in 1949. The Commissioner in the Tax Court urged that all the amounts which were paid should be taxable in 1948 although the final installment was not paid until 1949. He argued that the transaction was not, in fact, an installment sale since United in 1948 had obligated itself to pay the entire sum and the modifying agreement extending the privilege of deferring some of the payments was purely incidental. Faced with this question, the Tax Court had to make an independent determination as to whether, among other things, the note of the obligor or the obligor’s promise to pay had any value in 1948. The court found that:
“ * * * Upon this record it appears that the note was given to evidence indebtedness of $350,000, not in payment thereof. Throughout this transaction the promoting parties were interested in cash payment by United, not in its promise to pay. The original agreement of January 24, 1948, provided that United should deposit $150,000 per tanker as each tanker was delivered in order to secure its performance should it choose to exercise the option. Apparently this deposit was never made. Respondent does not contest the fact that United was in tenuous financial condition at all relevant times so as to render questionable the value of any promise it might give. Although its note was secured, we do not know the value of the security; certainly the National stock was of little value in view of National’s heavy indebtedness and the virtually nonexistent charter market for the tankers. Finally, the escrow arrangement itself, whereby the note was in terms payable to the escrow agents who retained possession of the note and received all payments thereon, indicates that the note was not available to the petitioners as an equivalent of cash in any practical or commercial sense, nor was it intended to be. It follows that the fair market value of the note, if any, was not includible in income but that payments on the note should have been reported as received.” [32 T.C. 564, 590.]
Thus it is clear that the position taken by the Commissioner did not absolutely require a decision for the taxpayers on the alternative issue, for had the Tax Court found that the United’s promise to pay had value in 1948, the amounts paid in 1949 would have been taxable in 1948. It follows under the test postulated above, that taxpayers maintained an “inconsistent position” within the meaning of section 1311(b) (1). Since it is agreed by both sides that the other requirements have been met, the mitigation statutes relieve the defendant of the bar of the statute of limitations.
For the reasons stated above, I concur in the result reached by the majority’s opinion.
WHITAKER, Judge, concurs in the concurring opinion.
*652JONES, Chief Judge, and DAVIS, Judge, believing that the court’s opinion is not as broad as has been suggested, concur in both the court’s opinion and in the body of Judge LARAMORE’S concurring opinion'
. In Heer-Andres, consistent application of the Commissioner’s position with respect to the proper accrual accounting treatment to be accorded to rental income would require the court to exclude from income certain rental receipts for 1945 which had been improperly reported in 1946. The Tax Court held that since it had agreed with the Commissioner's position as to the accrual accounting question, the Commissioner logically had to concede that the accrued rental receipts for 1945 were not income in 1946. The Commissioner’s contention in the earlier ease that the 1945 income should be taxed in 1946 was, therefore, the Commissioner’s ■inconsistency and not that of the taxpayer, and his effort in the latter case to attribute the income to 1945 could not be said to arise from taxpayer’s inconsistency.
The position advanced by the Commissioner in Goldstein in giving ordinary income treatment to amounts received on renewal commissions, required that the renewal rights received by the taxpayer in a corporate dissolution be valued in the year received, since the Commission view*651ed the receipt of the rights as a closed transaction. This was pointed out by taxpayers and they further contended that before ordinary income treatment be given to the amounts received as renewal commissions, they were entitled to recover their basis first. Thus the taxpayers in Goldstein, in making their alternative argument, were merely pointing out to
tbe court that if it adopts the Commissioner’s position in giving ordinary income treatment to the amounts received, it logically follows that a valuation had to be made and that they were entitled to recover their basis first. The Tax Court could not have adopted the Commissioner’s position without adopting taxpayers’ alternative argument.