(dissenting).
The substance of the transaction which gives rise to the tax question must be found in the contract between the taxpayer and Sunbeam. The substance of the option was the grant to Sunbeam of the privilege to purchase the patents at a price of $135,-000, reduced by the amount of royalty payments made by Sunbeam subsequently to January 1, 1933, and prior to the election by Sunbeam to purchase. Prior to the date of election the payments were in fact and in law royalty payments. By the terms of the option Sunbeam became in fact and in law the owner of the patents on June 13, 1935, when it elected to exercise its rights under the option. By force of the revenue laws the royalty payments received in 1935 prior to June 13 became a part of taxpayer’s gross income for *2471935. On June 13 taxpayer ceased to be the owner of the patents and was entitled to no more royalty payments; and Sunbeam became the owner with an obligation to pay as purchase price the $135,000 less all royalty payments made prior to June 13, 1935.
In my opinion all payments made prior to June 13, 1935, were royalty payments, and under the law constituted income.