¶1dissenting: I dissent from the majority opinion herein for the reason that it confuses the option to buy stock with the stock itself. I agree that the so-called trust agreement conveyed nothing to the so-called beneficiaries except an option to purchase stock, but we are not concerned here with the holding period of the option," we are concerned only with the holding period of the stock in the hands of the “beneficiaries” prior to its sale by them. Crane, Jr., cannot be said to have held only a reversionary interest in the stock but must be held to have retained the beneficial ownership of the stock itself inasmuch as the operation of the agreement did not effectuate a transfer to the so-called beneficiaries of any interest in the stock itself. I agree that Crane, Jr., is taxable upon the dividend income from the stock prior to its purchase by the “beneficiaries” but only upon the ground that he owned all the beneficial interest in the stock until such time as the option was exercised and therefore under Lucas v. Earl, 281 U.S. 111 (1930), he is chargeable with the income therefrom.
¶2The majority opinion holds that because there was a valid trust under State law, section 1223 (2) of the 1954 Code has no application. I would agree that this would be true had it been the operation of the trust instrument which transferred the stock, as distinguished from the option, to the “beneficiaries,” but even the majority must agree that this is not true. The transfer of the stock to the “beneficiaries” was effectuated only and solely by their purchase of it. For that reason, it seems to me that the plain wording of the above section requires its application to the holding period of that stock. It makes no difference whether the stock was acquired from Crane, Jr., directly, from him indirectly through the trust, or directly from the trust because the wording of the statute relates to property “however acquired.” (Emphasis added). The plain wording provides that there shall be included in the “beneficiary’s” holding period “the period for which such property was held by any other person.” The only qualification contained in the section is that under the chapter containing the section such property must have “for the purpose of determining gain or loss from a sale or exchange, the same basis in whole or in part in his [the “beneficiary’s”] hands as it would have in the hands of such other person.” Further, the respondent’s regulations would appear to permit the “tacking” of holding periods in the situation where property is transferred partially by way of gift and partially as a sale. Sec. 1.1015-4(b), Income Tax Eegs. The “beneficiaries” having individually paid for- the stock in issue exactly the amount which it cost the seller (whoever the seller may be), it must be said that the “beneficiaries’ ” basis was the same as the seller’s. There was no gift of the stock which would bring section 1015 (a) and (d) into effect; there was only a gift of an option even under the theory of the majority opinion. I would hold that the holding periods of the purchasers and seller of the stock must be tacked together under this section.