The opinion
Keen, </., dissenting: In this case we are not concerned with the effect of the contributions here involved on petitioner’s basis for depreciation with regard to the property purchased with those contributions, but with the question of whether these contributions constitute income taxable to petitioner. In my opinion, they were contributions of capital made by the contributors in order to furnish the funds necessary for the construction of a television signal transmission system by a corporation just starting out in business and having itself insufficient capital with which to construct such a system. It is obvious that without these contributions, which furnished 87 per cent of the funds spent for the construction of the necessary facilities by petitioner during the period February 20, 1951, to January 31,1953, petitioner could not and would not have begun business. I am unable to see why these contributions, which in my opinion were contributions to petitioner’s capital, must be taxed as income to petitioner merely because the ultimate motive of the contributors was their interest in obtaining services which could not have been available to them unless and until they had furnished by this means the capital which petitioner required in order to erect the facilities necessary for the furnishing of such services.
In my judgment, the situation presented by the instant case is distinguishable from that referred to by the dictum in the Detroit Edison case quoted in the majority Opinion — a dictum appearing in an opinion which considered the question of basis for depreciation rather than the question of whether the contributions constituted income. In any event, it would seem to me to be better judicial technique for this Court to follow the clearly applicable and heretofore unreversed precedents furnished us by Edwards v. Cuba Railroad, 268 U. S. 628 ; Great Northern Railway Co., 8 B. T. A. 225, affd. 40 F. 2d 572 , certiorari denied 282 U. S. 855 , and the other cases noted in the majority Opinion, rather than to assume from “a gradually but persistently broadening concept of taxable income * * * exemplified by the Glenshaw Glass Co. and Gen. Investors Co. cases” that the Supreme Court, by its dictum in the Detroit Edison case, intended to overrule the long line of cases starting with Edwards v. Cuba Railroad, supra.
Upon the facts of the instant case, and applying the law as it is revealed to us by existing precedents, it is my judgment that the issue before us should be decided in favor of the petitioner, and I, therefore, note my dissent.