(dissenting) :
I respectfully dissent.
This case shows that what is euphemistically called a “presumption” becomes an absolute to sustain the Commissioner’s implied finding in the deficiency determination. In practical effect it puts the imprimatur of law on the unassailable character of a figure plucked out of the air by the Commissioner. I do not think that the presumption is intended to infuse that infallibility into the undisclosed7 conclusions of this ephemeral agent.
The Taxpayer loses because he did not prove how much was attributable to the covenant not to compete. How could he when the parties did not? I assume it had some value. I would think it proper to find out what a fair value would be. Hence, my dissent is not an either or situation of total victory for Government or Taxpayer. There is still a place for a determination of that value. And the omnipresent, brooding presumption does not supply a substitute. Nor can it be sugar coated by the references to the equitable nature of a tax refund suit. Here in the name of equity the law puts its blessing on a fiat.
The Commissioner supposedly did two things. First, he concluded that because there was a difference between the sales price for the shares owned by Milwhite and those owned by David, the difference was attributable to the unique provisions of the David agreement. Second, based on the first, he concluded that all of this difference was attributable to the covenant not to compete. I grant that this was certainly permissible as an administrative matter, and it put the burden on the Taxpayer to challenge it.
But the uncontradicted facts of this record are revealing. The cash price was different. But so, too, was the other consideration. Thus, while Milwhite was willing to take f333,000 per 1,000 shares, it would do so only if the buyer would pay off the promissory notes for half a million dollars owed by Mud and which Milwhite had subordinated to a three-fourths of a million dollar debt owed by Mud to a Houston Bank. It is easy for this Court to say that Mud was “amply solvent.” But solvency was not the concern of the parties. It could be solvent so far as the law’s sterile test of paying off creditors if it liquidated. But that is not what bothered these businessmen. The company was woefully undercapital-ized. It was hurting for working capital. As the Court points out, delay in payment of accounts receivable jeopardized its ability to continue in business. It was treading a narrow path with its banks. It was the considered judgment *378of these successful businessmen that more capital was needed. The way out was to sell all ownership stock to an outsider. Once that was to be done, Mil-white was unwilling to depend on the ability of the successor management to (a) pay off the bank debt first and then (b) pay off the notes owed by Mud to it.
The solution was to require the purchaser to pay off Mud’s notes. Consequently, unlike the supposed determination of the Commissioner that Milwhite got $333,000 per 1,000 shares compared with David’s $500,000, Milwhite got $333,000 plus. Surely, we cannot conclude that the agreement by Mississippi Fuel to pay this half million to Milwhite was worthless.
But this is not all. Taking the difference the Commissioner attributes it all8 to the covenant.9 On what basis is this done ? How two sellers, each with ■different interests to serve, arrive at a price is a precarious basis for determining intrinsic attribution. Maybe one just wants more money. Maybe one thinks that the buyer will pay more. Maybe, as was true here, one (Milwhite) was bound under an option, the other (David) was a “free” agent vis-a-vis the new prospect. But how does the willingness to submit to a demand for more by one enable the Commissioner to say that all of the difference is due to the presence of these two peculiar provisions of the David contract while ignoring the substantial unique provisions of the Mil-white contract?
I do not think the presumption can slide over all of these difficult economic and legal questions.10 And with the facts all in, no factual basis is revealed to sustain the allocation for this amount. When that occurs, we have long held that the presumption no longer carries the day. Phillips’ Estate v. Commissioner, 5 Cir., 1957, 246 F.2d 209.
ON PETITION FOR REHEARING
PER CURIAM.The petition for rehearing filed by the appellants in this cause is hereby denied.
JOHN R. BROWN, Circuit Judge, dissents.
. Actually, the Government changed its tune in the trial Court. Up to that time the Commissioner’s presumptively correct conclusion was that the difference in sales price was attributable to a short term capital gain from David’s sale of his option from Milwhite. Presumably when it got to the Department of Justice, that office thought that there was a better reason which the Commissioner must have unconsciously had in mind all the while.
. An adjustment was made from 186,000 down to $125,000, but this was from averaging the sales price of Milwhite and David sales. The difference of some 41,-000 was not attributed to any feature of the David contract.
. Or perhaps in part the short term gain.
. See Mertens, § 50.64-65.