The opinion
Tannenwald, J., concurring:
Even prior to the enactment of section 334(b)(2), there was a question whether that doctrine applied in cases involving corporations under common control, although there is some indication that the rationale of these cases is rooted in the presence or absence of a subjective intent to acquire assets. See Frederick Steel Co. v. Commissioner, 42 T.C. 13, 23-24 (1964), revd. on another issue 375 F.2d 351 (6th Cir. 1967), and cases discussed thereat. See also Casco Products Corp. v. Commissioner, 49 T.C. 32, 36-37 (1967). Common control is present herein and thus it may well be that this case is not the proper vehicle for resolving the preemptive character of section 334(b)(2). However, I think it clear that, at least to the extent that the Kimbell-Diamond doctrine rests upon a foundation of subjective intent, it has been sapped of its vitality by that section of the Code. Nevertheless, I am not convinced that the doctrine should be considered as having totally lost its vitality in all situations. Where extraneous events beyond the control of the acquiring corporation preclude a finding of literal compliance with the provisions of section 334(b)(2) and a felicitous reading of that section to cover such situations is not possible, we should not be prevented from utilizing the flexibility which the Kimbell-Diamond doctrine affords.
Simpson and Sterrett, JJ., agree with this concurring opinion.