Opinion

John H. Rickey and Lorraine C. Rickey v. Commissioner of Internal Revenue

  • 502 F.2d 748
  • 34 A.F.T.R.2d (RIA) 6359
  • 1974 U.S. App. LEXIS 7550
Court
Court of Appeals for the Ninth Circuit
Filed
Jul 19, 1974
Status
Published
Author
Hufstedler
On the bench
Hufstedler, Anderson, Koelsch
Cited by
12 cases
Authority
More cited than 25.0%

The opinion

HUFSTEDLER, Circuit Judge

(specially concurring):

I concur fully in my brother Koelsch’s rationale in disposing of the section 453 issue. I reach his result in deciding the section 1244 issue, but by a different path.

I would not adopt the reasoning of Judge Friendly in Godart v. Commissioner (2d Cir. 1970) 425 F.2d 633 and of the other cases of Judge Friendly’s persuasion- that Judge Koelsch has collected. The requirement that “there must be some substantially contemporary objective evidence that the plan was adopted with § 1244 in view” ( 425 F.2d at 638 ), when applied to disqualify a plan that follows all of the objective criteria of section 1244, attributes to *756 Congress an unreasonably mystical approach to business financing. 1

Rather, I think that the issue is controlled by Warner v. Commissioner (9th Cir. 1968) 401 F.2d 162 . Warner struck down an otherwise qualifying plan because the plan did not contain terms explicitly requiring that the stock be sold within the requisite two-year period. Warner could have applied section 1244 and 26 C.F.R. § 1.1244 (c)-l(c) less mechanically, but Warner is the law of this circuit, and it disqualifies Rickey’s plan.

. It is also curious that, although § 1244 was intended to encourage investors to commit their funds to small business corporations, Godart requires that the corporation have § 1244 in mind. It is not inconceivable that an investor would buy stock due to the § 1244 incentive even though the corporation in which he was investing did not have the section in mind. ■ Such an investor’s purchase of stock would serve the congressional purpose; the Godart requirement, however, would deny him the section’s benefits.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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