dissenting.
I disagree that notes issued by state or local public housing agencies are exempt from federal éstate taxation by virtue of section 5(e) of the Housing Act of 1937.
The statutory language may seem emphatic and unqualified: the notes and income thereon “shall be exempt from all taxation now or hereafter imposed by the United States.” But as has been held many times, both before and since 1937, such language does not create an exemption from estate taxation. See, e.g., United States Trust Co. v. Helvering, 307 U.S. 57, 60, 59 S.Ct. 692, 693, 83 L.Ed. 1104 (1939); Murdock v. Ward, 178 U.S. 139, 147-48, 20 S.Ct. 775, 778-79, 44 L.Ed. 1009 (1900); Lowndes, Kramer & McCord, Federal Estate and Gift Taxes § 1.1, at p. 2 (3d ed. 1974). An estate tax is a tax on a transfer of property, not a tax on the property itself or the income from it. This may seem an awfully refined distinction, but no one connected with this case has questioned that if section 5(e) stood alone, the taxpayer would lose.
Three points have carried the day for the taxpayer:
1. An alternative bill to the one that was enacted had, in its version of section 5(e), an express exclusion of estate, gift, and inheritance taxes from the tax exemption conferred by the section; section 5(e) as enacted does not.
2. Senator Walsh, a sponsor of the Housing Act, said on the floor of the Senate that “the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income tax, surtax, estate, gift, and inheritance taxes.” 81 Cong.Rec. 8085 (1937) (emphasis added).
3. Another section of the Act, section 20(b), provides that the obligations of the Federal Housing Authority itself (which the Act created) “shall be exempt, both as *922to principal and interest, from all taxation {except surtaxes, estate, inheritance, and gift taxes) now or hereafter imposed by the United States or by any State, county, municipality, or local taxing authority” (emphasis added); the parenthetical is missing from section 5(e).
None of these ambiguous tidbits, nor all three together, persuade me that Congress meant to grant extraordinary tax favors to the holders of notes of public housing agencies.
The alternative bill differed from the one enacted in other respects besides estate taxation, and I can find no discussion of that difference. Also, the bill was rejected in committee, hence didn’t reach the floor of the Congress and no doubt was unknown to most members of Congress. There is no evidence that the alternative bill was rejected because it failed to exempt obligations of public housing agencies from estate taxes.
The phrasing of Senator Walsh’s statement (“which means”) suggests that he misunderstood the well-settled meaning of “tax-exempt-bonds.” Of course if this misunderstanding was enacted by Congress, that is the end of the case. But it would be unrealistic to think it was. The statement occurred in the course of a long speech by Senator Walsh explaining the provisions of the Act. The fact that no one jumped up and said, “Senator, I think you have misstated the effect of the tax-exemption language in section 5(e),” provides but weak evidence that the Senate (and House, whose concurrence was, of course, necessary for the enactment of the bill) intended to adopt a novel form of tax exemption. It is true that Senator Wagner, the author of the bill, was present and corrected Senator Walsh on some other matters; but since Homer nods, maybe Senator Wagner did too, on this occasion. In Jandorf's Estate v. Commissioner of Internal Revenue, 171 F.2d 464 (2d Cir.1948), as in this case, one section of the statute excepted estate taxes from the exemption granted by the statute and another did not, but the legislative history makes crystal clear that the difference was deliberate. See id. at 466 and n. 1. Furthermore, for 20 years the Treasury had construed the section to grant an exemption from estate taxes. See id. at 467.
Nor can any significance be attached to the express exemption from estate tax in section 20(b), once the historical context of this provision is understood. In 1937 the federal income tax consisted of a modest normal tax (4 percent) and a graduated surtax to make the income tax progressive. The Revenue Act of 1936 had made the tax treatment of obligations of federal agencies depend on the intent of the statute under which the obligations were issued, see section 22(b)(4), 49 Stat. 1658; so if the framers of the Housing Act of 1937 wanted to make the income on obligation^ of the Federal Housing Authority exempt from normal tax but not surtax they had to say so, and they did, in section 20(b). Having decided not to exempt such income from surtax they added — so far as appears out of an abundance of caution rather than to supply clues to interpreting section 5(e)— that such income would not be exempt from estate, inheritance, or gift taxes, either. With regard to the obligations not of the Housing Authority itself but of state and local public housing agencies, the framers didn’t want to distinguish normal tax from surtax but to exempt the income on such obligations from all federal income taxation; so they didn’t plug in the parenthetical phrase from section 20(b).
Although section 22(b)(4)(A) of the Revenue Act of 1936, 49 Stat. 1657-58, had exempted from the federal income tax income from obligations of states and their “political subdivision[s],” there was controversy over whether state and local public housing agencies were “political subdivisions” for federal tax purposes, see Tretter, Public Housing Finance, 54 Harv.L. Rev. 1325,1326 n. 4 (1941) — hence the need for an express exemption in section 5(e). If Congress had wanted to take the extraordinary step of exempting such income from estate as well as income taxation— and to exempt the principal as well— there would in all likelihood have been some discussion of the matter, as there *923was in the legislative history of the statute construed in Jandorfs Estate; Senator Walsh’s statement would not have been passed over in silence.
By what I respectfully suggest is an unrealistic analysis of the legislative process, the district court created an exemption that so far as I can see was no part of Congress’s intent when it passed the Housing Act. I would reverse.