(dissenting).
With deference, I feel that I must express my disagreement with the opinion of the court. My reluctance to do so is heightened by the fact that the decision of our court coincides with somewhat similar decisions by Courts of Appeals of two other Circuits. See Chown v. Commissioner of Internal Revenue, 9 Cir., 1970, 428 F.2d 1395, and Old Kent Bank and Trust Co. v. United States, 6 Cir., 1970, 430 F.2d 392. Of course, in neither of these other cases was there the fact of cross ownership of life insurance on the life of the other spouse.
I do not base my dissent on the theory that the market value of the policies owned by Sidney and Ellen Wien increased from a figure representing the interpolated terminal reserve at the moment before they boarded the ill-fated airplane at Orly Field by thousands of dollars per second as it ran down the field to the face amount of the policies a few seconds after attempted take-off *42when it crashed and brought death to all on board except the two stewardesses.
I believe, rather, that here we have a problem of statutory construction which requires that the court find a construction that most clearly falls within the policy of estate taxation. That policy is, briefly stated, that unless life insurance on the life of a decedent belongs to someone else at the time of his death, the proceeds of the policy are a part of the gross taxable estate. If the insurance belongs to another person at time of death, then the proceeds go, tax-free to the decedent, to the named beneficiary. Then, of course, if such beneficiary, having become entitled to such proceeds, dies—no matter how soon or how late thereafter—such proceeds as remain are part of the taxable estate of the beneficiary of the policies.
Here, although the majority says the Tax Court’s “finding of simultaneous death is unsupported by the evidence,” which means, I suppose, that there are at least strong implications, which I fully share, that either Mr. or Mrs. Wien survived the other for a moment of time, the face amount of the policies here escape taxation in either and both of the estates.
The court looks to the Simultaneous Death Act as a basis for finding that as to the policies on Sidney’s life, Ellen died first, so that there is included in her estate, the interpolated terminal' reserve value for estate tax purposes. The court then looks to the same act and determines that, as to the policies on Ellen’s life, Sidney is assumed to have died first, and thus the interpolated terminal reserve value of the policies he owned was properly includable in his estate. The court thus taxes the values of the reserves belonging to each spouse as if they both died first.
While this conclusion by the court that in the same accident Ellen died first for one purpose, and Sidney died first for another is not basing estate taxation on “now you see it, now you don’t concepts,” it is basing estate taxation on a physical impossibility, known to everyone to be such.
Moreover, even if the court were required to apply the Simultaneous Death Act separately to each of two spouses entirely independently of its application to the other, I think it clear that the law does not purport to establish the fact that as to the policies on Sidney’s life, Ellen died first (a predicate on which the court values her interest in the policies she owned on her husband’s life). All this statute does is to acquit the insurance company from liability when the stated circumstances here exist. It does not even attempt to create a presumption that the insured survived the beneficiary of the policies. As plainly as words can state it, the Act says: The proceeds shall be distributed as if the insured * * * had survived the beneficiary. It then provides that payment so made shall discharge the insurer unless before payment is made, some other person makes a claim in writing to the proceeds of an interest in them.1
It is impossible for me to see how this statute creates any status as dead or alive as to the owner of the policies as owner at the time of the death of the insured. It does not purport to do so. It merely mandates payment as if the beneficiary died first. It does not purport to create any property rights in the successors of an owner of the policies, which is essential to the reasoning of the court which posits its theory of taxation of the reserve values to each spouse’s estate on the fact that the rights of ownership in such estate were “intact” upon his or her death. It happens here that the owner of each group of policies was also the beneficiary, but the statute merely provides that as beneficiary of Sidney’s *43policies, Ellen takes none of the proceeds, because payment will be made as if she died first. This does not touch on the question whether for all other purposes, including federal estate tax purposes, dealing with ownership of an interest in policies as property, Ellen died first. (And vice versa).
This discussion of what is or is not accomplished by the Georgia statute is relevant only, I think, because it forces us to one of two results. Either we accept the decision of the Tax Court that the parties died simultaneously, or we conclude that the Tax Court should explore the probability that they did not die simultaneously, in which event clearly the tax gatherer would be losing a substantial tax, under the decision of the majority. In such a situation, since the face amount of the policies on one of the couple would have passed to, and become a part of, the other’s estate upon his or her swiftly occurring death, the taxable estates of the couple would be enhanced by the face amount of one and the reserve values of the policies belonging to the other. Such a determination does no violence to the construction of the Simultaneous Death Act, for, as I think I have demonstrated, that Act does not purport to create property rights which affect federal taxes.
Since the appellants challenge the assumption of simultaneous deaths, and since (as the majority opinion points out) “th[e] finding of simultaneous death is unsupported by the evidence, and does not follow from the mere application of the Simultaneous Death Act,” I would think the appropriate method of disposing of the case would be to permit the Tax Court to take such testimony as is available (opinion evidence of experts or computers or both) as to the likelihood of actual simultaneous deaths of two persons under such circumstances as here obtained. If such likelihood was established to be so remote as to warrant a finding that the deaths were not simultaneous, then the Tax Court would be required to determine the effects of such finding.
The alternative to this method of disposing of the case is to proceed on the assumption that the deaths were, for tax as well as payment-of-proceeds purposes, simultaneous. That would bring us squarely face to face with the question as to the value of the ownership of a policy by A which he owns on the life of B when the occurrence causing this value to be taxed is also the occurrence which terminates it. In order for this interest to be taxed in the manner adopted by the Tax Court, by the majority here, and by the Chown and Old Kent cases all must assume that what one, at the same instant, owns and loses he has rather than has not at that instant.’2
It seems to me that we must face up squarely to the problem of valuing an interest that is destroyed by the same act which creates the incidence of its taxation.
My solution, assuming simultaneous deaths, would be to adopt substance over form, and tax each estate with the face value of the insurance on the life of the decedent. The deaths of the two insureds simultaneously (as now assumed) accomplished the payment of the face amount of all policies to persons who owned no interest in the policies, since neither Mrs. Wien nor her husband was able to transmit his interest in his spouse’s policies because the spouse’s simultaneous death extinguished the interest of the owner.
At the moment of death all incidents of ownership merged into the obligation of the companies to pay the face amount of the policies to contingent beneficiaries. Put another way, if any interests in policies on the life of the other *44passed from either spouse by his or her death, if passed by will at the instant of death to the other spouse, thus merging all interests in each insured. Under such theory, of course, face amounts of the policies would be taxable to the estate of each insured spouse.
I think the likelihood of absolute simultaneous death is so remote that I think both taxpayer and the Commissioner are entitled to have that fact determined so that the tax events flowing therefrom can properly be assessed. This would not remotely affect the benefits sought and achieved by the Uniform Simultaneous Death Act. On the other hand, such an Act, providing for a prompt and safe rule for payment, as between those representing the insured and those representing the beneficiary, should not be construed to affect the tax-ability of property if, in fact, evidence is adduced which would convince the Tax Court that the parties died “otherwise than simultaneously” although no party could decide which died first.
The disposition made by the majority, although inconsistent with what I have expressed here, is, of course, much more nearly in line with what I believe to be the intent of Congress than any construction that would find both proceeds and interests of owners of the policies free of estate taxes.
This, as is said in the majority opinion, is a case which presents questions the answer to which are not without doubt. However, I think there can be no doubt about the proposition that, for purposes of includability of any property in either estate for estate tax purposes, the Georgia Simultaneous Death statute does not create or keep intact any ownership rights in either spouse in the life insurance on the other spouse’s life. This being the major premise on which all else hinges in the majority opinion, I think that, if these policies or ownership in them are to be taxable for estate tax purposes at all, it must be on some different theory.
In sum, I think the true facts should be established—that is, that one of the couple died first (even momentarily) if that be the fact. Alternatively, I think that if all ownership rights were extinguished at simultaneous death, if that should be the finding, then all rights merged into the insureds at the moment of their death and all was part of the taxable estate.
. It is interesting to speculate what the court would say here if, immediately upon learning of the death, the United States government had filed a claim to an “interest” in the funds. Then, under the literal words of the statute not even an “as if” payment would be warranted,
. This is a paraphrase from language in Chown by the Ninth Circuit which criticized the government’s contention that the true value of the interest owned by the spouse of the decedent equalled the face amount of the policies. That court said that contention “rests on an assertion that what one at the same instant ‘acquiries’ and ‘loses’ one has rather than has not at that instant.” 428 F.2d 1398.