Dissenting:
Is there something that a taxpayer, who has borrowed hundreds of thousands of dollars more than his basis in his property, can do to avoid taxation when he transfers the property? Yes, says Peracchi, because by using a very clever argument he can avoid the strictures of 26 U.S.C. § 357(c). He need only make a promise to pay by giving a “good,” though unsecured, promissory note to his corporation when he transfers the property to it. That is true even though the property remains subject to the encumbrances. How can that be? Well, by preparing a promissory note the taxpayer simply creates basis without cost to himself. But see 26 U.S.C. § 1012; Rev. Rul. 68-629, 1968-2 C.B. 154; Alderman v. Commissioner, 55 T.C. 662, 665, 1971 WL 2488 (1971). Thus he can extract a large part of the value of the property, pocket the funds, use them, divest himself of the property, and pay the tax another day, if ever at all.
But as with all magical solutions, the taxpayer must know the proper incantations and make the correct movements. He cannot just transfer the property to the corporation and promise, or be obligated, to pay off the encumbrances. That would not change the fact that the property was still subject to *497those encumbrances. According to Peracchi, the thaumaturgy that will save him from taxes proceeds in two. simple steps. He must first prepare a ritualistic writing — an unsecured promissory note in an. amount equal to or more than the excess of the encumbrances over the basis. He must then give that writing to his corporation. That is all.1 But is not that just a “promise to pay,” which “does not represent the paying out or reduction of assets?” Don E. Williams Co. v. Commissioner, 429 U.S. 569, 583, 97 S.Ct. 850, 858, 51 L.Ed.2d 48 (1977). Never mind, he says. He has nonetheless increased the total basis of the property transferred and avoided the tax. I understand the temptation to embrace that argument, but I see no real support for it in the law.
Peracchi says a lot about-economic realities. I see nothing real about that maneuver. I see, rather, a bit of sortilege that would have made Merlin envious. The taxpayer has created something — basis—out of nothing.
Thus, I respectfully dissent.
. What is even hetter, he need not even make payments on the note until after the IRS catches up with him. I, by the way, am dubious about the proposition that the Tax Court clearly erred wheri it held that the note was not even a genuine indebtedness.