dissenting:
I respectfully dissent. I would affirm on the reasoning of the Tax Court, see Kings-towne L.P. v. Commissioner, 68 T.C.M. (CCH) 1497, 1994 WL 709347 (1994) (T.C. Memo.1994-630), and I will explain briefly why I believe the Tax Court was exactly right in disallowing the claimed interest deduction.
Kingstowne’s goal, if it could buy Green-dale’s stock, was to turn 1,100 acres owned by Greendale into a residential real estate development. Kingstowne needed, and received, the option to back out of its agreement to buy Greendale’s stock. At the time the Stock Purchase Agreement was signed, Greendale had an application pending to rezone the land to allow higher density residential development. Kingstowne did not obtain a financing commitment for the purchase until after the original settlement date had passed. That financing commitment from the Riggs National Bank was contingent upon the approval of Greendale’s rezoning application. The Stock Purchase Agreement’s liquidated damages provision allowed Kingstowne to default by forfeiting the down payment and the monthly payments to extend the settlement date. It is obvious why Kingstowne wanted the liquidated damages clause: if rezoning did not occur, if it could not obtain financing, or if it got cold feet for any reason, it wanted (and had) the opportunity to back out with limited exposure. Thus, as the Tax Court held:
Prior to the settlement, the partnership [Kingstowne] was free to decide not to settle for any reason or for no reason at all, albeit forfeiting its downpayment and all monthly payments that it had made to the sellers to extend settlement. We recognize that the partnership would have paid a substantial price for abandoning the project. This price, however, does not convert the partnership’s obligation to the sellers into an indebtedness within the meaning of section 163.
68 T.C.M. (CCH) at 1502 (T.C. Memo. 1994-630, at 16).*
*660Moreover, the parties did not intend the settlement extension payments to constitute interest. The Stock Purchase Agreement, which is the only document discussing the settlement extension payments, does not mention interest anywhere. The Greendale owners, upon receiving the monthly extension payments, reported them as additional sales proceeds paid for their stock, evidencing their belief that the payments were not interest. And, Kingstowne itself initially treated the payments as miscellaneous income to the sellers, as demonstrated by its issuance of Forms 1099-MISC (miscellaneous income) to the sellers, rather than Forms 1099-INT.
Finally, on the record before us, I do not believe that the benefits and burdens of ownership passed to Kingstowne prior to the settlement date. As the Tax Court said:
The sellers’ retention [until settlement] of primary liability for rezoning costs and mortgage debt is a significant burden of ownership. Although the partnership [Kingstowne] was responsible for reimbursing the sellers at settlement for any rezoning costs incurred after March 1985, and the partnership even paid some of these directly prior to settlement, the sellers remained primarily liable for any obligations associated with the property, including mortgage payments....
Prior to settlement, the partnership initiated negotiations with various developers with respect to the property, but, until it obtained the sellers’ stock and liquidated the company, the partnership could not have finalized any of these development proposals. The partnership ultimately benefited from the approval of the sellers’ rezoning application by Fairfax County, but only because the partnership proceeded to settlement. Although the partnership assumed the burdens of funding the rezoning process, if it had not settled, the sellers had no legal right to force the partnership to bear these costs.
68 T.C.M. (CCH) at 1503 (T.C. Memo. 1994-630, at 20-21).
In sum, the payments to extend the settlement date were simply not deductible as interest.
The down payment of $3 million ($2 million in cash and a $1 million non-interest bearing note) and the extension payments of $900,000 equalled about 13 percent of the purchase price of $29 million. The amount that could have been forfeited is thus within the reasonable limits for an option. See Williams v. Commissioner, 1 F.3d 502, 507 (7th Cir.1993).
In an evident attempt to distinguish Williams, the majority argues, without citation to the record, that the liquidated damages approximated the amount of actual damages Kingstowne would pay if it defaulted. This "fact,” according to the majority, makes the $3 million indebtedness. Ante at 655-56. The majority, however, ignores the purpose of an option. When a buyer purchases an option, he places on the seller the risk that the price of the stock (or the land) will rise or fall. If, during the period between the purchase of an option and the date the option expires, the fair market value of the stock (or the land) significantly drops, then the buyer will choose not to exercise the option knowing that all he will lose is the price paid for the option. If, however, the fair market value of the stock (or the land) increases or stays within an amount that the buyer is willing to pay, then the buyer will exercise the option. Thus, in this case, Kingstowne was buying the right to purchase the land for $29 million, and it was willing to pay $3 million up front, plus $225,000 per month, to retain that right prior to the settlement date. If the fair market value of the land fell by a significant amount (or if Kingstowne could not pay the balance of the purchase price), then Kingstowne could walk away from the deal knowing the full amount of its exposure. The error, therefore, that the majority makes is to assume that Kings-towne — at the time it entered into the Stock *660Purchase Agreement — knew that actual damages (which could not be known until any default occurred) would approximate the liquidated damages, i.e., the option price. Perhaps Kings-towne could reasonably speculate about what actual damages would be, but Kingstowne did not want to speculate. Rather, it wanted the right to buy the land without the risk that the value would significantly fall, and it wanted to be able to walk away from the deal if it could not obtain zoning approval and financing. And the price for placing the risk on the Greendale owners was 13 percent of the purchase price, a reasonable amount to pay for an option.