(concurring) :
While I wholly approve the result reached by my brothers, the case seems much easier to me than it did to the Tax Court or does to them.
When these two companies sat down to negotiate the sale of the Seas Shipping fleet to Mooremac, it must have been obvious to them and their experienced counsel that the seller’s interest would be served by a lower and the purchaser’s by a higher valuation of the Mooremac stock —in the case of the latter not only to obtain a high tax basis but for purposes of its operating-differential subsidy, 46 U.S.C. ch. 27, subchapter VI, 46 C.F.R. Part 284. It should have been equally obvious that the Commissioner of Internal Revenue could not be expected to tolerate a state of affairs in which Seas had the benefit of a lower figure and Mooremac of a higher one. The Sales Agreement set values for ten vessels, in addition to the two that were to be paid for in cash, and provided that upon delivery of each, Mooremac stock should be issued to Seas “at the rate of one full share for each $30, or fraction thereof, of value of the Vessels * * with any balance payable in cash or serial notes at Mooremac’s option. The contract was subject to approval by the Federal Maritime Board and/or the Maritime Administration. The Board’s letter of approval endorsed the values the parties had assigned to the vessels and referred to the Mooremac stock as being taken “@ $30.00 per share”; the Board requested each company to signify its “unqualified acceptance.” When the parties joined in a telegram asking the Board to delete the figure for the stock and simply refer to the agreement, an official refused, telling Seas’ lawyer “that the proposal was unacceptable because of Federal Maritime Board requirements.” Seas and Moore-mac thereupon returned their acceptance, Seas contenting itself with a letter agreement with Mooremac which confirmed their understanding that the terms and conditions of the basic agreement remained unchanged.
To be sure, none of these arrangements would have precluded the Commissioner, who was not a party, from asserting that the Mooremac stock was not worth $30 per share if he had been so advised.1 But if he was satisfied to leave the parties in the bed they and the maritime regulatory agency had made, I fail to perceive any legitimate basis for one of them to complain. The situation is indeed somewhat reminiscent of the tax problems in allocating proceeds of a sale between assets or stock and a covenant not to compete, where, as Judge Waterman said in Ullman v. C. I. R., 264 F.2d 305, 308 (2 Cir. 1959), the tax desires “of the buyer and seller * * * are ordinarily antithetical, forcing them, in most cases, to agree upon a treatment which reflects the parties’ true intent with reference to the covenants, and the true value of them in money” so that “strong proof must be adduced * * * in order to overcome that declaration.” See, accord, Hamlin’s Trust v. C. I. R., 209 F.2d 761, 765 (10 Cir.1954); Montesi v. C. I. R., 340 F.2d 97, 100 (6 Cir. 1965). This is a fortiori true when the parties’ declaration has ■ been approved, indeed particularized and insisted upon, by an expert agency of government that has administered the payment of subsidies to both.
. The provision in 46 C.F.R.. § 284.2(b) (2), “No valuation by the Maritime Administration of a vessel acquired in whole or in part for securities shall be deemed to be a determination by the Maritime Administration of the value of such securities,” was doubtless intended to prevent argument on this score.