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.