The opinion
Van Fossan,
dissenting: I am of the opinion that the sale of the life interests in the two trusts should be treated as a saJe of property and taxed as capital gain.
Under Blair v. Commissioner, 300 U. S. 5 , the life interest so created was “present property alienable as any other” and the assignment of such a beneficial interest is the assignment of the “right, title and estate in and to property.” There would- seem to be no ground to question that the sale for cash and its equivalent of the life interest was a sale of property. See also Commissioner v. Field, 42 Fed. (2d) 820.
The property was acquired by virtue of transfers in trust after December 31, 1920. Section 113 (a) (3) is, therefore, pertinent and petitioners5 bases are the same as those of the grantors of the trusts, adjusted as provided in section 113 (b). The parties stipulate that the adjusted bases of the grantors for the Thorncroft stock, as of the date of creating the trusts, are $461,327.96 as to Frederic S. Bell and $461,315.47 as to Frances L. Bell.
The life interests which were sold being property held by the taxpayers and their grantors under the trusts, for more than ten years (section 117 (c) (2)) and not falling in a category excluded from the capital gains provisions, it follows that the profit is to be treated as capital gain, taxable as such.
Hort v. Commissioner, 313 U. S. 28 , on which the author of the prevailing opinion relies, is not authority to the contrary. That case involved the relinquishment of a lease in consideration of receipt of $140,000. The payment was held to be income because the relinquishment of future rents was in return for present payment. No sale or disposition of property was involved. The lessor merely got rid of the lease and was free to lease again. The payment was clearly a substitute for the rentals reserved in the lease. In the instant case the property was sold. The statute provides the basis for determining gain. To deny the application of the statute and hold the entire proceeds ordinary gain brings about a result which is at once unjustified in law and arbitrary in fact.