dissenting.
I respectfully dissent from the majority opinion, for I would affirm the decision of the Tax Court. The opinions of the Fifth Circuit in Schleppy v. Commissioner, 601 F.2d 196 (5th Cir.1979), of the Second Circuit in Frantz v. Commissioner, 784 F.2d *434119 (2d Cir.1986), and of this court in Tilford v. Commissioner, 705 F.2d 828 (6th Cir.), cert. denied, 464 U.S. 992, 104 S.Ct. 485, 78 L.Ed.2d 681 (1983), support this conclusion.
As indicated by the majority, Schleppy characterized two majority shareholders’ non-pro rata surrender of slightly less than two percent of their stock to the issuing corporation as a non-deductible contribution to capital, rather than a deductible loss. The taxpayers’ basis in the surrendered shares was therefore added to their basis in the remaining shares. 601 F.2d at 199. The court noted that a voluntary payment of cash to the corporation to bolster its financial position is considered a contribution to capital. The court found it “difficult to perceive why any distinction should arise if, instead of paying cash to the corporation, the shareholder surrenders part of his shares to bolster the corporation’s financial health.” Id. at 197. The Fifth Circuit then held that, in any event, the taxpayers had not demonstrated that they had suffered a genuine loss because of the surrender. The court observed that the taxpayers retained over 68% of the outstanding shares, thereby retaining corporate control while surrendering only a very small part of their holdings to improve the corporation’s financial position. Id. at 198-99.
In its recent opinion in the Frantz case, the Second Circuit held that the taxpayer’s non-pro rata stock surrender to a closely-held corporation, made to enhance the value of the taxpayer’s continuing investment by improving the company’s financial condition, was a contribution to capital rather than an ordinary loss. The taxpayer had surrendered his nonvoting preferred stock, but retained control of the corporation by continuing to hold 65% of the voting common stock. In deciding that the taxpayer had made a capital contribution, the Second Circuit emphasized that the stock surrender had not substantially reduced the taxpayer’s net equity in the corporation. “Because the overall change in the taxpayer’s interest in ABL was miniscule compared with the taxpayer’s retained interest in the company, no justification exists for treating the change in value as a capital loss, much less as an ordinary one.” At 125.
As in the Schleppy and Frantz cases, the taxpayers here reduced their corporate ownership only slightly, in this case from 72% to 68%, and maintained their corporate control. Because the taxpayers’ stock surrender left them in substantially the same position that they previously held, they have not suffered any sort of meaningful loss.
In Tilford, this court held that a taxpayer who sold stock at a loss to corporation employees to induce them to accept or continue employment made a capital contribution to the corporation, rather than suffered a deductible loss. Tilford found that Congress, by enacting Internal Revenue Code section 83, indicated that it viewed the transaction in two parts: the taxpayer’s contribution of capital to the corporation, and the corporation’s subsequent transfer of the stock as compensation to the employees. The majority distinguishes Tilford from the present case, stating that it merely affirms the validity of Treas.Reg. § 1.83-6(d) as an interpretation of section 83. While Tilford relies on these provisions in reaching its conclusion, the opinion suggests that its holding should be accorded a broader meaning. It states that the reasoning of the Schleppy opinion “further explicate^]” its conclusion. 705 F.2d at 831. Tilford also finds its result consistent with early Supreme Court tax cases holding that a shareholder cannot deduct payments made for the benefit of his corporation. Id. at 830 (citing Deputy v. Du Pont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416 (1940) and Interstate Transit Lines v. Commissioner, 319 U.S. 590, 63 S.Ct. 1279, 87 L.Ed. 1607 (1943)).
The majority’s attempt to distinguish Til-ford from the present case presents a further difficulty. The majority’s approach accords different tax treatment to a shareholder’s transfer of stock to a third party for the benefit of the corporation, and a shareholder’s direct surrender of stock to *435the corporation for the same purpose. It makes little theoretical sense to distinguish between these two transactions. In both cases, the shareholder parts with stock to protect or enhance the value of his remaining investment. Both transactions are best viewed as a contribution to capital.
The majority relies heavily on its perceived need to apply the “fragmented view” of stock ownership to the present case. It views each share of stock as a separate investment. The majority holds that the taxpayers are entitled to recognize immediate gains or losses when surrendering shares to the issuing corporation, as the taxpayers have finally disposed of the particular shares surrendered. Whatever validity the “fragmented view” may have outside of the present context, it should not be applied here. Each share cannot validly be regarded as a separate investment that is separately terminated, when the taxpayers’ sole motivation in disposing of certain shares is to benefit the other shares they hold. The taxpayers surrendered their shares only because their action affected the value of other shares, making a continuing investment in the corporation feasible. Viewing the surrender of each share as the termination of an individual investment ignores the very reason for the surrender itself. Particularly in cases such as this, where the diminution in the shareholder’s corporate control and equity interest is so minute as to be illusory, the stock surrender should be regarded as a contribution to capital.
For the foregoing reasons, I would affirm the decision of the Tax Court.