The opinion
HARRIS, District Judge,
dissenting:
I respectfully dissent from the decision and opinion of the Court in this matter. In my view it is particularly important in matters of taxation that established precedent be followed, unless the Congress acts to change the rule as established or the rule be without substantial rational justification or foundation.
Were this a case of first impression I might well join with the majority. However, Keinath v. C. I. R., 480 F.2d 57 (8th Cir. 1973), followed by the Eighth Circuit en bane in Cottrell v. Commissioner, 628 F.2d 1127 (1980), has been the only precedent from a Court of Appeals since its decision in 1973. Numerous tax practitioners have undoubtedly relied on this opinion in advising as to the tax consequences of such acts as are involved in the instant case, and justifiably so.
The Congress, in the Tax Reform Act of 1976, acted to override the Keinath rule, but only prospectively. The effect of the decision of the majority is to give to the 1976 Amendments the retrospective effect which the Congress expressly rejected. An unnecessary split between holdings of the Circuit Courts of Appeal is thus established. I would follow the rule of Keinath and reverse.