(dissenting):
Judge Friendly and I agree that under section 675(3), the taxpayer is to be treated as the “owner” of the trust assets because of the “dominion and control” he exercised in borrowing from a trustee who is related and subservient. His opinion also takes the position, with which I am in complete accord, that the trust’s carryover basis in the stock was $30,000, i.e., the grantor’s basis under section 1015(a) (see parenthetical in opinion at 13; see also n. 2). Thereafter, however, we differ. In particular, we do not agree that after application of section 675(3) the grantor’s basis in the IDI shares which he had transferred to the trust and “bought” back from it was $320,-000, the trust’s “selling price” to him. True, Judge Friendly’s approach does avoid the potential danger that nobody would be taxed on the difference between the grant- or’s original basis of $30,000 (which became the trust’s basis) and the sum of $320,000; it does so by providing that the grantor pay tax on that gain as if he — like the trust— had elected installment treatment under § 453. But the problem with this approach is that it simply does not treat the grant- or/ taxpayer as if he were the “owner,” which is what the statute requires. The difference is, of course, substantial. Were the taxpayer in this case, for example, truly treated as the owner of the stock, his basis would be that of the trust, i.e., the “old” owner, or $30,000.
I would accordingly frame the ultimate question as follows: whether the grantor of a Clifford trust who is deemed the owner of the trust assets by virtue of section 675(3), who sells those assets in the taxable year and realizes the proceeds of such sale (directly or indirectly), can take advantage of the trust’s prior election to receive a portion of its proceeds from the taxpayer/grantor on an installment basis, or whether the taxpayer must report the entire gain in the year he in fact realizes it. Thus stated, the question seems to me to answer itself. A taxpayer must report a gain when he realizes it. The taxpayer did not realize his gain on an installment basis and is therefore disentitled to benefit from an installment election on the part of the trust.
*713In stating the question, I use the word “portion” advisedly. Suppose that the amount the taxpayer received on liquidation (attributable to the trust’s shares) was in excess of $320,000. Even under Judge Friendly’s proposed result, which would permit the grantor to treat the difference between the $320,000 received and the $30,-000 basis as an installment sale, the amount over and above $320,000 would surely be taxable to him as immediate, short-term capital gain.
But of course the gain on the difference between $30,000 and $320,000 is identical in kind to the gain between $320,000. and the amount ultimately received, once the benefits of the Clifford trust have been denied the taxpayer. After all, had the taxpayer never established a trust, he would have been required to report the entire difference as capital gain. He could not have elected to treat the sale on an installment basis for the simple reason that he did not receive the proceeds on an installment basis. Does it make any difference, then, that he did establish a trust which did not comply with the Clifford trust regulations, non-compliance with which triggered the statutory requirement that he be treated as the “owner” of the assets? In my view the answer has to be in the negative irrespective of the language in section 671 relied on by Judge Friendly as the sole basis for his conclusion.
I submit that the language of section 671, insofar as it includes in the grantor’s taxable income “those items of income ... which are attributable to that portion of the trust,” simply does not bear on, indeed it has nothing whatsoever to do with, the trust’s election to treat gains on an installment basis. The “item of income” attributable to the grantor under section 671 is the difference between $30,000 and $320,000. How it is to be treated on his tax return is dependent on whether he realized it in the taxable year or deferred it by realizing it on an installment basis and taking the installment election. The fact that the taxpayer did not realize that gain in its entirety (as turned out to be the case) simply means that he only has to report it to the extent that he did in fact realize it, not that he is entitled, as Judge Friendly’s opinion would inconsistently hold, to treat the entire amount on an installment basis and to deduct the unrealizable portion in the year of his sale.
The grantor, Rothstein, was not himself an installment seller; nor is he to be deemed such by virtue of section 671. Yet under Judge Friendly’s analysis, following a transaction after which Rothstein is to be treated as the owner of the assets in question, he is nevertheless allowed to take advantage of the trust’s now meaningless election. Nothing in the statute, legislative history, regulations, or cases supports this anomolous result. In fact, the parties themselves did not even propose this result, which helps explain why nobody knew (or cared) on argument how the trust treated the transaction. From the trust’s point of view and against any conceivable suggestion of “double taxation,” I would simply point out that once the grantor is treated as the owner and the income or gain thus made attributable to him, there are no tax consequences to the trust, and any election it has made is purely moot. Judge Friendly’s opinion does not, as I read it, suggest otherwise.
There is no problem with the grantor’s payment of interest to the trust. Whether that payment is treated as a wash, as the Commissioner probably treated it, or whether the trust is perceived as receiving income, which is then functionally offset by allowing the grantor a deduction for interest paid to the trust, as Judge Friendly would have it, there are no tax consequences to either trust or grantor, which is as, it should be, when, by virtue of the grantor’s failure to comply with the Clifford trust regulations, he is treated as the owner of the assets involved.
While to affirm I would have to address the second or jury issue in this case, for a lone dissenter' to address that question seems to me an academic exercise the usefulness of which cannot be great. To my mind, in any event, appellant’s counsel ac*714quiesced in the trial court’s treatment of the jury as an advisory one only.