(dissenting).
The opinion accepts two assumptions, both necessary to the result. The first is that definitions of gift under the gift and estate tax statutes are not useful, in fact are directly opposed to, definitions of gift under the capital-gains provision of the income tax statute. The second is that the circumstances here of a transfer of the stock some months before the marriage showed, contrary to the conclusions of the *816Tax Court, a purchase of dower rights, rather than a gift. The first I regard as doubtful; the second, as untenable.
It is true that Commissioner of Internal Revenue v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958, 156 A.L.R. 1022, and Merrill v. Falls, 324 U.S. 308, 65 S.Ct. 655, 89 L.Ed. 963, which would require the transactions here to 'be considered a gift, dealt with estate and gift taxes. But no strong reason has been advanced why what is a gift under certain sections of the Revenue Code should not be a gift under yet another section. As a matter of fact these two cases indicate that the donative intent of the common law is not an essential ingredient of a gift for tax purposes. Conversely love, affection, and the promise of future marriage will not be consideration adequate to avoid the gift tax. If that is so, it would seem that these should not be sufficient to furnish new and higher cost bases for computing capital gains on ultimate sale. The Congressional purpose would seem substantially identical — to prevent a gap in the law whereby .taxes on gifts or on capital gains could be avoided or reduced by judicious transfers within the family or intimate group.
But decision on that point might well be postponed, since, to my mind, the other point should be decisive. Kresge transferred the stock to' petitioner more than three months before their marriage. Part was given when Kresge was married to another woman. At these times petitioner had no dower or other rights in his property. If Kresge died before the wedding, she could never secure dower rights in his lands. Yet she would nevertheless keep the stock. Indeed the specifically stated purpose of the transfer was to protect her against his death prior to marriage. It is therefore difficult to perceive how her not yet acquired rights could be consideration for the stock. Apparently the parties themselves shared this difficulty, for in their subsequent instrument releasing dower rights they referred to the stock transfer as a gift and an antenuptial settlement.
If the transfer be thus considered a sale, as the majority hold, it would seem to follow necessarily that this valuable consideration (equivalent to one-third for life in land valued at ■ one hundred million dollars) should have yielded sizable taxable capital gains to Kresge, as well as a capital loss to petitioner when eventually she sold. I suggest these considerations as pointing to the unreality of holding as a sale what seems clearly only intended as a stimulating cause to eventual matrimony.
Since Judge Murdock in the Tax Court found this to be a gift, not a sale, and since this decision is based in part at least upon factual considerations, it would seem binding upon us. At any rate, it should be persuasive of the result we ought to reach.