(concurring):
I concur with the result reached by the majority, but do not agree with the reasoning and route followed in reaching it.
The majority has concluded that the gain to the taxpayer is ordinary gain resulting from income from the discharge of indebtedness for less than face value. I think that a more realistic approach and one that is more in keeping with the facts is to regard the gain as a short-term capital gain resulting from a transaction in foreign currency. The result taxwise will be the same to the taxpayer, but in my opinion, our decision would be on sounder ground and more in accord with the events which transpired in the case if we held that the taxpayer received a short-term capital gain which must be included in his ordinary income.
I find no support in the record for the several statements of the majority to the effect that the taxpayer designed and executed the entire transaction with the deliberate purpose and intent of acquiring Canadian dollars so he could convert them into United States dollars, and, in turn, reconvert these dollars into Canadian dollars and repay his debt with less American dollars than he had earlier obtained, thus realizing a profit for himself. This appears to be an unwarranted assumption or an inference from the facts by the majority, because the plaintiff never made such an admission and the government never at any stage of the proceeding advanced such a theory or contention. It is true the transaction did in fact result in such a profit for the plaintiff, but there is no evidence that he planned it that way. In fact, he could have sustained a loss if the value of the Canadian dollar had increased in comparison with the American dollar. .
There is even less support for the following statement in the majority opinion:
* * * in effect, the taxpayer borrowed United States funds, and the source of his gain was a decline in the value of the debt in terms of American dollars, enabling him to retire it for less United States currency than he received in incurring it. * *
This statement assumes events “in effect” which did not occur and ignores those which did take place. The taxpayer did not borrow United States funds either actually or “in effect.” He borrowed Canadian dollars five different times over a three year period and each time gave his note for their repayment. The funds of the United States were not involved in any way at the times he borrowed the Canadian money. The fact that the taxpayer sold the Canadian dollars for United States funds after the borrowings had been made did not in any way result in a borrowing of United States funds. The conversions were separate transactions and had nothing to do with the creation of the debts.
I cannot agree with the majority that “[Tjhere was an assumption and repayment of a debt for less than face value, resulting in ordinary gain * * The taxpayer borrowed a fixed amount of Canadian dollars and gave his notes for the same amount of the same money and finally repaid the notes with the exact specified amount of Canadian dollars. *315The notes were never discounted nor reduced in any way. They were not paid with an amount less than their face value, but the identical amount of the debt was paid. I do not think we are justified in holding otherwise. In fact, the main thrust of the taxpayer’s argument that he did not owe any tax at all was the fact that he repaid the exact amount of the debt in kind as required by the notes.
On first impression, it appeared that the taxpayer was entitled to treat his profit as long-term capital gain. But, on closer examination, the facts revealed that the transaction could not meet the required tests for such tax treatment. This court said in KVP Sutherland Paper Co. v. United States, 344 F.2d 377, 170 Ct.Cl. 215 (1965), that the three tests for determining whether gain of a taxpayer can be classified as long-term capital gain are: (1) The gain must be realized from a sale or exchange of property (this requirement was met by the conversion of Canadian money into American funds); (2) The property sold or exchanged must be a “capital asset” in the hands of the seller (this requirement was complied with, as the Canadian money was a capital asset); and (3) The property sold or exchanged must have been held for more than six months prior to the transfer (this test has not been met). It could be argued that to meet the third test the taxpayer held the “equivalent value” of the Canadian dollars for longer than six months prior to the reconversion, but this leads to difficulties. If it was held in United States dollars, they cannot be considered as capital assets. If it was held in personal investments, which the facts indicate was the case here, we are not informed as to the nature of the investments. It could be that he invested in other property on which he made a long-term capital gain, and, if that were true, to allow him long-term capital gain in the case before us would result in allowing him a double long-term capital gain on the same “equivalent value” of Canadian dollars. However, eliminating the hypothetical and confining ourselves to the facts before us, which we must do, it appears that the taxpayer has failed to meet the third test by showing that he held a capital asset for more than six months prior to the transfer (reconversion).
This brings us to the crux of the problem. It is admitted that when the taxpayer reconverted United States dollars for Canadian dollars in 1961, he was able to obtain the same number of Canadian dollars that were originally converted with fewer United States dollars than were acquired at the time of the original conversion. At that point he had made a gain or profit. This is true regardless of the payment of the Canadian debt. The parties are in agreement that the payment of the debt did not create the income. The plaintiff says in this regard:
* * * [T]he economic gain is from the conversion of currencies and not from the extinguishing of the debt. [Brief of plaintiff at 14.]
The defendant says:
* * * [T]he Government submits that the proper treatment is to characterize Mr. Gillin’s economic gain as short-term capital gain since it was not the payment of the debt that gave rise to the income but, rather, the purchase of the foreign currency at more favorable exchange rates than those existing at the time the debt was created. [Defendant’s main brief at 13-14.]
Since it is clear that the taxpayer made a profit or gain on the reconversion in 1961, the inquiry must be, did he use a capital asset which he had held for six months or longer in making the reconversion? The answer must be in the negative. He used American dollars. There is no proof he had held these dollars for six months or more, and, even if this were true, it would not help the plaintiff, because currency of the United States is not a capital asset, as pointed out by the majority opinion. From all of these facts, I reach the in*316escapable conclusion that the taxpayer’s gain was a short-term capital gain on which he must pay income taxes.
From the standpoint of fairness, it would seem that the taxpayer would be entitled to treat his profit as long-term capital gain, since the entire transaction extended over a period of more than three years. Nevertheless, every avenue of approach to the problem leads inescapably to the conclusion that under the statutes and authorities there is no way to hold that the gain is long-term capital gain. This may seem unjust and inequitable, but there is no way to avoid it. Tax laws are enacted to produce revenue, and their application in many instances may result in unjust and inequitable situations.
I would hold that the taxpayer’s gain was a short-term capital gain and includable in his gross income for 1961.