The opinion
EDWARDS, Circuit Judge
(concurring).
I concur in Judge McCree’s result and (with one exception) with his opinion also.
As the author of this Court’s opinion in Berthold v. Commissioner of Internal Revenue, 404 F.2d 119 (6th Cir. 1968), however, I think it appropriate to add a few words on the standard of review issue which is- common to both cases. In Berthold , the Commissioner argued that the standard of review was the “clearly erroneous” standard which in that case favored the government’s collection of the tax. Here the decision below is adverse to the government and we are invited to hold that we review the fact finder’s conclusion (that the transactions were “loans”) as erroneous as a matter of law.
Whatever might be our thoughts if we wrote on a fresh slate, I felt in Bert-hold and continue to feel here that Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278 , 80 S.Ct. 1190 , 4 L.Ed.2d 1218 (1960), settles this issue for us in favor of the “clearly erroneous” standard of review. While I recognize that Duberstein dealt with tax concepts of “gift” versus “compensation” and that in Berthold and this case we deal with tax concepts of “loans” versus “dividends” or “equity,” it seems to me that the reasoning of the majority of the Court in Duberstein affords us no meaningful distinction on factual grounds as far as standard of review is concerned.
Of course, we cannot (and the government should not) blow hot or cold, depending on which standard would require payment of the tax. It seems to me that the only logical step for the Commissioner (if he is now convinced that a fact finder’s conclusion that a transaction is a “loan” should be reviewed as a matter of law) is to seek reversal of Duberstein . Obviously, this is not within this Court’s power.