The opinion
MtjRdook,
dissenting: The agreement between the petitioner and Sunbeam gave to Sunbeam an option to purchase the patents for the sum of $135,000, and further provided that if Sunbeam exercised its option to purchase, all royalties therefore paid should be credited upon the purchase price. Those provisions gave to the payments a dual character. They might be royalty payments for the use of the patents or payments of the purchase price for the patents, depending upon whether or not Sunbeam exercised its option to purchase. It may have been necessary to treat them as royalties in prior years in order to permit the orderly collection of income taxes upon an annual basis. The petitioner did not know in those years whether or not the option would be exercised. But the inherent uncertainty of character which attached to the payments was removed in the taxable year when Sunbeam exercised its option to purchase the patents. Cf. Virginia Iron Coal & Coke Co., cited in the majority opinion. It then became clear for the first time that the payments were payments of purchase price. The character of the payments made in 1935 did not have to be determined for income tax purposes prior to the date the option was exercised, and there is no reason why all of the payments made during that year should not be recognized for income tax purposes as payments of the purchase price, which, in fact, they finally turned out to be. Thus, the petitioner is not subject to any tax or penalty as a holding company.
*1315 Although the Commissioner here refuses to recognize these payments as a part of the purchase price of the assets, he has insisted, in the case of Sunbeam,, that they were a part of the purchase price and not deductible by Sunbeam as royalties. He thus recognizes the dual character of the payments for his own double and inconsistent advantage.
I can not believe that Congress ever intended a personal holding company tax and penalty for failure to file a return to apply in a situation like that presented here and, therefore, the result reached by the majority seems particularly unfortunate.
Arundell, Van Fossan, Mellott, Kern, and Opper agree with this dissent.