dissenting:
The statute has the clarity and cleanliness of a theorem of Euclid. It becomes obtuse and muddy only when it is subjected to the stroking of the Commissioner and the tax court in their novel, unprecedented application of it to Pope & Talbot. In terms of the statute three questions must be answered in this case. What is “the property” to which the statute applies? How is “fair market value” to be determined? What is the force of the hypothetical “as if the property distributed had been sold”? The property to which the statute refers is the property distributed to each stockholder. The fair market value is to be determined here, as generally under the Internal Revenue Code, by the relevant market. The hypothetical authorized by the statute is a hypothetical sale, not a hypothetical market and not a hypothetical value.
Although the statute in some form has been on the books for nearly 30 years the Commissioner, no doubt confident of its clarity, has promulgated no regulation elucidating the statutory text. The Commissioner did issue a ruling stating that the statute “does not hypothesize a sale to an unrelated party.” Revenue Ruling 75-514, 1975-2 C.B. The statute, in other words, hypothesizes a sale to a shareholder or shareholders of the corporation. The statute has been amended since 1975 in ways that do not detract from the force of this focus on the hypothetical sale as one made to the owners of the corporation. The Revenue Ruling gives a clue as to how the statute should be understood here. For purposes of the statute, “the property dis*1243tributed” to the owners and the property hypothetically sold to the owners are the same. The property is what each owner receives. The Commissioner and the tax court add two words to the statute when they maintain that it is “the entire property” that should be valued as if the entire property was sold to each owner. Rather, it is whatever property that is distributed to each stockholder which is to be valued as if sold by the company at the time of distribution.
How is the fair market value of this property to be determined? No specific regulation answers the question, but the Commissioner has provided an answer that is universally valid unless there is good specific reason for rejecting it: “As a generalization, the prices of stocks which are traded in volume in a free and active market by informed persons best reflect the consensus of the investing public as to what the future holds for the corporations and industries represented.” Revenue Ruling 59-60, 59-1 C.B. 737. The tax court has followed this sage conclusion by refusing to let the Commissioner tax an estate on an appraiser’s high valuation of the assets of Pope & Talbot itself, holding rather that the proper valuation is that put on the company stock by the stock market. Estate of Brownell v. Commissioner, 44 T.C.M. 1550 (1982). The same principle was applied by the tax court in Philip Morris v. Commissioner, 96 T.C. 606, 1991 WL 51559 (1991).
The fair market value in this case, as in Brownell, was established by the market in the partnership units traded on the Pacific Stock Exchange. That value was confirmed by the market’s valuation of the stock of Pope & Talbot following the distribution, reflecting that in no way the market regarded the distribution as a distribution of over $55 million of the assets of Pope & Talbot.
Against these judgments of the market made at the time of distribution the Commissioner and the tax court have opposed-the estimates of experts made a decade after the event. The statute authorizes the Commissioner to use a hypothetical sale. The statute does not authorize the Commissioner to substitute a hypothetical value for a value readily ascertainable from actual trading in a free and informed market. The position of the Commission and the tax court rests on an equivocation, viz. that appreciation had occurred at the time of distribution. But no appreciation was recognized by the only relevant market before or after distribution. The Commissioner seeks to tax a purely hypothetical appreciation; he is not entitled to do so. If the market later does recognize appreciation because of the underlying value of the assets, that appreciation does not escape tax; it will be taxed to each partner as the partner sells a share. The partner will not have a stepped-up basis. All the appreciation that is market-recognized will be captured by the Commission.
The fallback position of the tax court is that the legislative history of the statute shows a congressional intent to subject the corporation to tax on any appreciation of any assets it distributes. But the rationale of the report relied upon by the tax court stresses that the distributees in the situation envisaged by the statute will have a stepped-up basis on the property received. Staff of Joint Comm, on Taxation. General Explanation of the Revenue Provisions of the' Debt Reduction Act of 1984, at 149-150 (J. Comm. Print 1985). Here the distributees are con-cededly taxed on the basis of property valued at $11.40 per unit; there has been no stepped-up basis reflecting appreciation in assets from Pope & Talbot.
The Commissioner and the tax court’s decision leads to the anomaly that the fair market value of the property distributed is one thing when received by the shareholders, another thing when distributed by the corporation. No good reason is given why the statute should tax the same property at the same time at two different values.
It is suggested that timberland undivided in the hands of Pope & Talbot is worth a lot more than a sliver of the property held as a limited partnership unit. The answer is deficient in several ways. The answer begs the question as to what the property distributed is under the statute. The answer ignores the market’s evaluation of Pope & Talbot stock before and after the distribution. The answer counter-factually assumes that Pope & Talbot did their shareholders a substantial *1244disservice by reducing the value of assets to which the shareholders were entitled. The answer exaggerates the difference between a Pope & Talbot shareholder, pre-distribution, and a limited partner, post-distribution. In fact, in neither case could a minority shareholder or a limited partner control the assets of the company or realize the value of the timber; in both cases a slow cash flow could be expected to be their lot.
The great difficulty with the Commissioner and tax court’s position, which carries the implications of this case far beyond the immediate facts, are two teachings: (1) that the valuation of publicly traded property in a free and open market is not as good as the hypothesis of an expert ten years after the fact; and (2) that fair market value is not to be determined in the same way under Sections 301-11 of the Code and not to be determined in the same way for the same property at the same time but to be determined ad hoc to achieve the tax the Commissioner contends Congress must have had in mind.