dissenting:
I respectfully dissent. It is fundamental that in determining liability for income taxes courts consider the economic reality, not the form, of financial transactions. In the words of Judge Learned Hand:
The Income Tax Act imposes liabilities upon taxpayers based upon their financial transactions, and it is of course true that the payment of the tax is itself a financial transaction. If, however, the taxpayer enters into a transaction that does not appreciably affect his beneficial interest except to reduce his tax, the law will disregard it; for we cannot suppose that it was part of the purpose of the act to provide an escape from the liabilities that it sought to impose.
Gilbert v. Commissioner, 248 F.2d 399, 411 (2d Cir.1957) (L. Hand, J., dissenting) (emphasis added). Since I find that the transaction here does not appreciably affect the beneficial interest of the taxpayer, except to reduce his tax, I cannot agree with the majority. Nor can I find either a business purpose in the transaction or a significant transfer of control over the property.
I. Business Purpose
Those courts that have permitted deduction of rental payments after a gift and leaseback have taken a “bifurcated” approach, viewing the gift and the leaseback as separate transactions, while those that have denied deductions have looked at the contemporaneous gift and leaseback as one transaction. See Perry v. United States, 520 F.2d 235, 238 (4th Cir.1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 782, 46 L.Ed.2d 641 (1976); Brooke v. United States, 468 F.2d 1155, 1160 (9th Cir.1972) (Ely, J., dissenting). The government argues that we should consider the contemporaneous gift and leaseback as a single transaction and apply the business purpose rule to the taxpayer’s claimed deduction for rental payments. The majority characterizes this argument as requiring a business purpose for the gift and a business purpose for the leaseback. It is illogical to require a business purpose for a gift, and this is not the government’s argument. The government argues that the contemporaneous gift and leaseback be viewed as one transaction and that the business purpose rule be applied to the taxpayer’s claimed deduction for the “business expense” of the resulting rental payments.
Both the facts of the instant case and the relevant legal standards compel the conclusion that the gift and leaseback must be viewed as a single transaction. The uncon-*1284troverted evidence is that Dr. Rosenfeld approached his lawyer and his accountant because he wanted to make lifetime gifts to his children. The trust, deed and lease were executed the same day, July 1, 1969, and the lease was coterminous with the trust. It also is undisputed that the terms of the trust and of the lease were fixed before that day.
The total payments made by Dr. Rosenfeld were far in, excess of the reasonable rental value, of the office. This court previously has recognized, in a gift-leaseback, the significance of the fact that the transaction is disadvantageous to the business. White v. Fitzpatrick, 193 F.2d 398, 400 (2d Cir.1951), cert. denied, 343 U.S. 928, 72 S.Ct. 762, 96 L.Ed. 1338 (1952). In the instant case, Dr. Rosenfeld initially paid $14,000 per year, which was the gross rental, as determined by an independent appraiser, necessary to carry the building’s fair market value. However, the appraiser determined that the highest and best use of the building was as a professional office, with the unfinished one-third of the building “finished and occupied.” But Dr. Rosenfeld paid the full appraised rent while using the one-third unfinished space not for an office but for storage. In addition, Dr. Rosenfeld remained liable on the mortgage and continued to make the monthly payments. The standard in this court for determining whether a business expense i$ “ordinary and necessary,” 26 U.S.C. § 162(a), and therefore deductible, is whether a hardheaded businessman, under the circumstances, would have incurred the expense. Cole v. Commissioner, 481 F.2d 872, 876 (2d Cir.1973). These terms, I submit, are not the terms on which a hard-headed businessman would sign a lease for an office he already owned and occupied. Dr. Rosenfeld remained liable on the mortgage so that the gift of the building to the trust would be of greater value to his daughters and, presumably, because the interest deductions were of more value to him than to the trust. He was willing to pay a high rent because the greater the rent, the greater the gift to his daughters and the lower the family’s taxes. As in Mathews v. Commissioner, 520 F.2d 323, 325 (5th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1463, 47 L.Ed.2d 734 (1976), “the fact rent negotiations produced ‘reasonable’ results is totally irrelevant. Any bargaining is simply not at arm’s length, because any rent exceeding expenses stays in the ... family.”
Dr. Rosenfeld’s scheme amounts in substance to an assignment of $14,000 of his yearly income to the trust. Such an assignment would not be recognized by the tax law. In White v. Fitzpatrick, supra, the taxpayer owned and operated a company which owned a certain patent essential to its business. The taxpayer transferred the patent to his wife for ten dollars, and the following day the wife licensed the exclusive manufacturing rights to the taxpayer for the term of the patent. This court described the transaction thus: “The sole practical effect of these transactions ... was to create a right to income in the wife, while leaving untouched in all practical reality the husband-donor’s effective dominion and control over the properties in question.” 193 F.2d at 400. The court denied the taxpayer a business deduction for the resulting royalties, stating that the taxpayer’s scheme “in effect ... is not different from claiming that the gift itself made the original income [his wife’s] in the first place.” Id. at 401. In the instant case, Dr. Rosenfeld in effect diverted $14,000 of his income to the trust by taking a business deduction for rent.1 The only conclusion that can be drawn from these facts is that the trust, deed and lease were conceived and executed at the same time and for the same purpose and that the purpose was to make gifts to Dr. Rosenfeld’s children.
It is beyond question that courts will look to the substance of transactions in determining their tax consequences. See Diedrich v. Commissioner, 457 U.S. 191, 194-96, 102 S.Ct. 2414, 2417-18, 72 L.Ed.2d 777 (1982); *1285Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960); Griffiths v. Commissioner, 308 U.S. 355, 357-58, 60 S.Ct. 277, 278, 84 L.Ed. 319 (1939). This court has repeatedly recognized this salutary principle. See Hoffman Motors Corp. v. United States, 473 F.2d 254, 257 (2d Cir. 1973) (“[C]ourts will look through the ‘form’ of a business transaction and rule on the basis of its ‘substance.’ ”); Philipp Bros. Chemicals, Inc. (N.Y.) v. Commissioner, 435 F.2d 53, 57 (2d Cir.1970) (“[I]t is economic reality, rather than legal formality, which determines who earns income.”); Lubin v. Commissioner, 335 F.2d 209, 213 (2d Cir. 1964) (“[0]ur taxing statutes are intended to take cognizance of realities and not mere appearances or facades.”).2 Furthermore, this court has answered the question of whether a deduction is permissible for rental payments arising from a gift-leaseback in White v. Fitzpatrick, supra. The court denied the deduction,3 stating:
Gift and retained control must be regarded as inseparable parts of a single transaction, especially since it was only in their sum total that they had any reality in regard to the conduct of [taxpayer’s] business. To isolate them ... is to hide business reality behind paper pretense.
White v. Fitzpatrick, supra, 193 F.2d at 400.4 White was cited in Perry v. United States, supra, in which the Fourth Circuit Court of Appeals denied a deduction for rental payments arising from a gift-leaseback. See 520 F.2d at 238 n. 3.
Nonetheless, the majority struggles to avoid application of the business purpose rule by arguing that, although it is proper to determine tax consequences by “examining all that occurred,” this “does not, of course, imply that we should blindly apply the business purpose standard ... without consideration of other factors which bear on the case.” Here, the majority points, “[t]o illustrate,” to the validity of the trust as one of these “other factors,” but the majority does not point to any other transaction for which a deduction under Section 162(a) is allowed without a business purpose. It is clear that, rather than using the trust as an “illustration,” the majority relies on the validity of the trust in allowing the deduction. The majority offers the validity of the trust as the sole “other factor” to be considered. In addition, the majority concludes that the test to be applied to the gift is whether the gift was a “sham.” In other words, if the gift is valid, the deduction is allowed; if the gift is a sham, the deduction is denied. The majority, and the other courts which have reached the same result,5 have been unfaithful to the cases cited above because they have been seduced by the Clifford trust. However, the majority’s reliance on the validity of the trust does not withstand analysis.
First, the legislative history plainly states that the Clifford trust sections are irrelevant in determining the deductibility of Dr. Rosenfeld’s rental payments. The Senate Finance Committee Report states:
*1286The effect of this provision is to insure that taxability of Clifford type trusts shall be governed solely by this subpart [rather than by 26 U.S.C. § 61]. However, this provision does not affect the principles governing the taxability of income to a grantor or assignor other than by reason of his dominion and control over the trust .... This subpart also has no application in determining the right of a grantor to deductions for payments to a trust under a transfer and leaseback arrangement.
S.Rep. No. 1622, 83d Cong., 2d Sess., reprinted in [1954] U.S.Code Cong. & Ad. News 4621, 5006 (emphasis added). See also Perry v. United States, supra, 520 F.2d at 237 n. 2. This language could hardly be clearer.
Second, the majority relies on the argument, advanced by the Eighth Circuit Court of Appeals in Quinlivan v. Commissioner, 599 F.2d 269 (8th Cir.), cert. denied, 444 U.S. 996, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979), that to deny a deduction here “would produce a benefit only in cases where investment property — not used in the grantor’s trade or business — is placed in trust. Persons whose assets consist largely of business property would be excluded from a tax benefit clearly provided by Congress.” Id. at 274. The infirmities of this argument are many. First, it is an argument about legislative intent, but is of course unaccompanied by citation to the legislative history. Second, it ignores the fact that this “benefit clearly provided” is not “provided” to the majority of taxpayers who do not have assets lying around that they can give away for ten years at a time. Third, there would be no such “unfairness” if the taxpayer had assets other than business property which could form the corpus of a Clifford trust. The record does not indicate, nor does the opinion in Quinlivan, whether the respective taxpayers had other assets substantial enough to form the corpus of a Clifford trust.
Most importantly, however, the Quinlivan argument ignores the fact that the “tax benefit” is not the deduction of rental payments but the diversion of income from the grantor to the trust. The argument is that it is somehow unfair, or contrary to Congress’ intent, that persons whose only asset substantial enough to form the corpus of a Clifford trust is business property are excluded from taking advantage of the Clifford trust provisions. The remedy, the argument runs, is for the courts to ignore the business purpose rule and the substance of the transaction and grant the taxpayer a business expense deduction. But owners of other types of assets which produce no income, such as commodities or residences, also are unable to take advantage of the Clifford trust provisions. If Dr. Rosenfeld placed his residence in a Clifford trust, no court would permit him to deduct the resulting rent in order to effectuate the Clifford trust provisions. In the instant case, Dr. Rosenfeld, instead of purchasing the land and building in question, could have purchased some other asset and placed that asset in a Clifford trust. But he did not because he wanted not only a tenant’s but also a landlord’s control over his office. See infra Part II.
The majority also argues, later in its opinion, that there is no difference “in real terms” between this case and the hypothetical case where Dr. Rosenfeld leases office space somewhere else and the trust property is leased to a third party. But there is a difference, as shown in Part II of this dissent. Dr. Rosenfeld exerted substantial control over the property by remaining in a building he previously owned and that he, and later his wife, would own in the future, and by dealing with trustee-lessors who were his personal advisors, and later his daughter. Although his legal interest in the property was a leasehold, he acted as both tenant and landlord and claimed the tax deductions available to both a tenant (rent) and an owner (interest on the mortgage). In short, Dr. Rosenfeld wants to have his cake, or more accurately the Treasury’s, and eat it too.
In sum, Dr. Rosenfeld began paying rent on July 1, 1969, not in order to have an office in which to practice medicine, be*1287cause he already had such an office. He began paying rent so that the trust would have income and his purpose of making a lifetime gift to his children would be fulfilled. There was simply no business purpose in this transaction. Moreover, the majority’s adoption of the Tax Court’s four-part test is unnecessary because the business purpose rule has no infirmity in this context. This exception to the business purpose rule increases the complexity of the law in an area where I had thought the complexity already sufficient. Adoption of the four-part test, involving a factual inquiry into the particular circumstances of the taxpayer’s scheme years after the scheme is implemented, will make it even more difficult for taxpayers to plan their affairs. A holding that rental payments arising from a gift-leaseback are not deductible simply would require taxpayers to find other, less hypocritical means of avoiding their taxes.
II. Retention of Control
The government argues that, even if the bifurcated approach to the gift and leaseback is adopted, Dr. Rosenfeld should not be granted a deduction for his rental payments. The government bases this argument on the principles that transactions lacking in economic substance cannot form the basis for tax deductions, see Knetsch v. United States, supra, 364 U.S. at 366, 81 S.Ct. at 135; Goldstein v. Commissioner, 364 F.2d 734, 741 (2d Cir.1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 708, 17 L.Ed.2d 543 (1967); Gilbert v. Commissioner, supra, 248 F.2d at 411 (L. Hand, dissenting), and that transactions entered into among family members for the purpose of splitting income must be examined with strict scrutiny, see Commissioner v. Tower, 327 U.S. 280, 291, 66 S.Ct. 532, 537, 90 L.Ed. 670 (1946); Helvering v. Clifford, 309 U.S. 331, 335, 60 S.Ct. 554, 556, 84 L.Ed. 788 (1940); White v. Fitzpatrick, supra, 193 F.2d at 402. The majority ignores these principles, applying instead the first prong of the Tax Court’s special four-part test. This prong requires that the grantor, in order to receive a deduction, must not retain “substantially the same control over the property that he had before he made the gift.” Because I believe that even this requirement has not been met, I must dissent on this ground also.
The original trustees, Mr. Powsner and Mr. Goldman, were Dr. Rosenfeld’s advisors. They were the individuals who concocted the gift-leaseback scheme, and it is to be expected that they would want Dr. Rosenfeld to be satisfied with the arrangement. Nor surprisingly, the trustees never spoke with another potential tenani in 1969, and there is no evidence that they did so in 1975 when the new lease was signed. The trustees’ purpose obviously was to satisfy both their fiduciary duties and Dr. Rosenfeld, and, indeed, Mr. Goldman testified that he saw no reason for contacting other potential tenants and “disturbing the doctor’s practice.” Moreover, it is fair to say that the original trustees, if not bosom buddies, certainly were located less than an arm’s length from Dr. Rosenfeld. The trustees, for example, never attemp ed to improve or lease the unfinished one-third of the building because, in Mr. Goldman’s words on redirect examination, “I was informed by Dr. Rosenfeld, who inquired about it on our behalf, that the cost of making it into finished office space was very prohibitive, and would not be worth the rent that would be collectible, and this would be an enormous cost to the — -to the parties involved” (emphasis added). The fact that “the tenant” is able to instruct “the landlord” whether to improve the building surely amounts at least to “ ‘passive acquiescence to the will of the donor.’ ” White v. Fitzpatrick, supra, 193 F.2d at 402 (quoting Commissioner v. Culbertson, 337 U.S. 733, 747, 69 S.Ct. 1210, 1216, 93 L.Ed. 1659 (1949).
The lease also granted Dr. Rosenfeld the right to build onto the building, an indicia of ownership one would not expect to find in a tenant’s hands. Moreover, as explained in Part I, supra, the total payments made *1288by Dr. Rosenfeld were excessive. Dr. Ro-senfeld was willing to pay a premium because he was more than a tenant.
In 1973 Dr. Rosenfeld deeded his reversion in the trust corpus to his wife. The possibility, urged by Dr. Rosenfeld’s counsel, that the Rosenfelds might obtain a divorce in the future is mere speculation, while the question before us is one of fact. The reversion in Dr. Rosenfeld’s wife is of little relevance because the question is one of control, not one of equity. Moreover, once the property is in the hands of his wife, pursuant to his gift, deductions for his rental payments will not be allowed. White v. Fitzpatrick, supra. In short, that Dr. Rosenfeld became wise enough in 1973 to deed the reversion to his wife does nothing to weaken the substantial control he retained.
In 1975 Dr. Rosenfeld amended the trust, extending its term five and one-half years. He was able to extend the trust even though, having already deeded his reversion to his wife, he had no beneficial interest in the corpus. By extending the trust, Dr. Rosenfeld shifted from his wife to his daughters the income of the property for the period covered by the extension. And there is little chance that Dr. Rosenfeld would be opposed in another attempt to extend the trust: his daughters would not object, and his wife is not likely to object because her income from the property would be taxed to him. White v. Fitzpatrick, supra. Dr. Rosenfeld, for all practical purposes, has the power to determine who receives the income from the property.
Moreover, when Dr. Rosenfeld amended the trust, he appointed his daughter Barbara and Robert Swados, an attorney, as trustees.6 The amendment provided that the trustees could act by majority vote, but only if Barbara Rosenfeld was among the majority. In other words, the trustees could take no action opposed by Barbara Rosenfeld, who was, of course, the grantor’s daughter, a beneficiary of the trust and a recipient of her father’s largesse.
In sum, the question before us is not what amount of control Dr. Rosenfeld gave to the trustees, but whether the control he retained was “substantially the same [as] he had before he made the gift.” Dr. Rosenfeld determined whether to improve the unfinished space in the building, and he had the right to build onto the building. He paid all expenses of the land and building except real estate taxes and structural repairs, the deduction which he shifted to his family. He faced no competitors either time he signed a lease with the trustees. The trustees were his advisors and, later, his daughter Barbara, one of the recipients of his largesse. Dr. Rosenfeld extended the trust once, installing his daughter as a trustee with an essential vote, and might do so again. This, I think, is enough control over the building to be “substantially the same . .. [as] he had before he made the gift,” and to make Dr. Rosenfeld, like the taxpayer in White v. Fitzpatrick, supra, the “actual enjoyer and owner of the property.” 193 F.2d at 402. As this court recently stated, “ ‘for tax purposes, there was not a sufficient severance of the [taxpayer’s] ownership over the assets for the transaction to create the tax consequence’ intended for her.” Blake v. Commissioner, 697 F.2d 473, 480 (2d Cir.1982) (quoting United States v. General Geophysical Co., 296 F.2d 86, 90 (5th Cir.1961), cert. denied, 369 U.S. 849, 82 S.Ct. 932, 8 L.Ed.2d 8 (1962) (on petition for rehearing)).
. See S.Rep. No. 1622, 83d Cong., 2d Sess., reprinted in [1954] U.S.Code Cong. & Ad.News 4621, 5006 (validity of Clifford trust not applicable in situations of assignment of income); 26 C.F.R. § 1.671 — 1 (c) (1982) (same).
. See Mathews v. Comm’r, 520 F.2d 323, 325 (5th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1463, 47 L.Ed.2d 734 (1976):
In deciding the federal questions of income tax law, we must examine transactions with substance rather than form in mind. If we stood at the top of the world and looked down on this transaction — ignoring the flyspeck of legal title under state law — we would see the same state of affairs the day after the trust was created that we saw the day before.
. See also Hall v. United States, 208 F.Supp. 584 (N.D.N.Y.1962) (denying deduction for rental payments made by grantor-doctor after gift-leaseback of medical office property).
. Cf. Blake v. Comm’r, 697 F.2d 473, 480-81 (2d Cir. 1982) (“Where there is, as here, an expectation on the part of the donor that is reasonable, with an advance understanding that the donee charity will purchase the asset with the proceeds of the donated stock, the transaction will be looked at as a unitary one.”).
. Brown v. Comm’r, 180 F.2d 926 (3d Cir.), cert. denied, 340 U.S. 814, 71 S.Ct. 42, 95 L.Ed. 598 (1950) (2-1 decision) (trust of up to 21 years duration); Skemp v. Comm’r, 168 F.2d 598 (7th Cir. 1948) (trust to terminate after 20 years or upon deaths of grantor and wife, whichever first occurs); Quinlivan v. Comm’r, 599 F.2d 269 (8th Cir.), cert. denied, 444 U.S. 996, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979) (Clifford trust); Brooke v. United States, 468 F.2d 1155 (9th Cir.1972) (2-1 decision) (guardianship which constituted a Clifford trust).
. Mr. Powsner had died before this.