Stanton v. Commissioner

Opkgr, /., dissenting: While I agree with much that is said by my brothers Bruce and Pierce, it seems to me this case should be decided squarely on the authority of George G. Lynch, 31 T.C. 990 , and Leslie Julian, 31 T.C. 998 , both affirmed (C.A. 2) 273 F. 2d 867 , and Egbert J. Miles, 31 T.C. 1001 , and what we said there. Only by repudiating one of the two grounds on which those cases rested can the present result be reached. The attempt to distinguish these and other cases by applying to them such unmeaningful labels as “sham” and “collusive” avoids the true crux of the problem. The fact that there was a “real” bank, or that there was actual liability on the notes, which were not of the nonrecourse character, will not do as a distinction.

The present facts are, of course, not identical with those in all of the cases in this field. That there should be variations in detail from case to case is no more than can be expected. However, in W. Stuart Emmons, 31 T.C. 26 , and Carl E. Weller, 31 T.C. 33 , both affirmed (C.A. 3) 270 F. 2d 294 , the insurance company was a “real” insurance company, and in Broome v. United States, (Ct. Cl., 1959) 170 F. Supp. 613 , one of the notes had no “nonrecourse” provision. In Eli D. Goodstein, 30 T.C. 1178 , affd. (C.A. 1) 267 F. 2d 127 , and Danny Kaye, 33 T.C. 511 , there is no indication that the notes were not actual liability notes.

These transactions had no genuine business, borrowing, or investment purposes. They were, in my opinion, not of the kind to which Congress intended the respective statutory provisions to apply. And the fact that a man named Livingstone may not have been involved is certainly no basis for erecting a principle of law — although, the fact appears to be that, to some extent, his influence was also present here.

The various elements which we observe in the present transactions, and which in one form or another exist in the other cases referred to, are the symptoms rather than the disease. The disease is lack of reality; the symptoms, which one would not necessarily expect to find in such a case, are the various steps which are either omitted entirely or taken in so offhand 1 a way that they are obviously mere window-dressing to conceal the lack of reality behind. But if every “i” were correctly dotted and every “t” meticulously crossed, the result would not be different. The transaction would remain one which it is not the purpose of the tax law to recognize. Gregory v. Helvering, 293 U.S. 465 .

I respectfully dissent.

HaRRON, J., agrees with this dissent. Petitioner’s failure to take the trouble to reduce to writing his agreements with the banks, or even to inquire as to their practice, indicates to me a lack of interest inconsistent with an operation haying economic reality.