concurrence">Black,

concurring: I concur in the result reached in the ma jority opinion. I agree that the certificates in question were not “certificates or other evidences of indebtedness” within the meaning of section 117 (f), I. E. C., when issued by the Oliver Farm- Implement Co. The language in the certificates themselves which reads: “This certificate does not represent a debt of or claim against the company, unless and until it shall declare arid set aside a dividend upon its common stock” (italics supplied), prevents them from being classed as certificates of indebtedness at the time issued. However, when the corporation on November 28, 1940, passed a resolution to pay in full all of these outstanding “conditional rights certificates” on December 2, 1940, such certificates became to all intents and purposes certificates of indebtedness from that time on. But, as such, petitioners held them for only four days.

In order for the taxpayers to have their gains taxed as long term capital gains under the provisions of section 117, I. E. C., they must have held these “certificates of indebtedness” for a period of more than 18 months. It is true the petitioners had held the “conditional rights certificates” for a much longer period than 18 months but during all that period, up to November 28, 1940, they did not represent “certificates or other evidences of indebtedness issued by the corporation,” within the meaning of section 117 (f).

Therefore, I do not think that the period prior to .November 30, 1940, can be counted in the period of holding required by section 117 (a) (4). For this reason I do not think petitioners can avail themselves of the provisions of section 117 (f) which would otherwise have been available to them if their “conditional rights certificates” bad been certificates of indebtedness from the outset.

Leech, Disney, and Keen", JJ., agree with the above.

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