The opinion
Opper, J., dissenting: For present purposes, I assume that the Commissioner’s regulation is a permissible interpretation of the statute. This deficiency must then have included an implicit determination by respondent that the requisite “view” existed prior to the completion of construction. The burden of proving the contrary rests upon petitioner. Rose Sidney, 30 T.C. 1155 (1958), aff'd. 273 F. 2d 928 (C.A. 2, 1960). This view need not be the “principal” one. Max Mintz, 32 T.C. 723 (1959), aff'd. 284 F. 2d 554 (C.A. 2, 1960). I find nothing in the record, including the Court’s Findings of Fact, which even remotely sustains the burden of proving that there was no such view, either “unconditionally” or at least “conditionally, or as a recognized possibility.” Sec. 29.117-11(5), Regs. 111, 1953- 1 C.B. 187, 190 . Certainly, the concededly unreliable testimony of petitioner, with no impartial evidence to support it, cannot justify the ultimate finding, which is really a legal conclusion, that the corporation was not “availed of” with a “view to * * * [the realization of gain through a] sale or * * * distribution * * * prior to the realization * * * of a substantial part of the net income to be derived from such property.” This is the only test which the statute invokes. I, accordingly, respectfully dissent.
Tietjens, Raum, PieRce, and Mulroney, JJ., agree with this dissent.