(dissenting in part and concurring in part):

I regret that I cannot agree in the conclusion reached by my colleagues in cause 21,834.

Considered together, the agreements of the parties with each other and with Mountain Tree provide that Weyerhaeuser and Scott are to be equal partners in harvesting the timber. Part of the advantage to be shared is the appreciation in the value of the timber. Indirectly, I conclude, this must include section 631(a) benefits.

The intended efficiency of the joint logging operation would be defeated if Mountain Tree was required to cut precisely half the timber from each party’s tract each year. That was the reason for the provision in the contract for equalization payments. I interpret the agreement to provide that Mountain Tree was not the agent of either party. Mountain Tree, obviously, could not claim 631(a) benefits since it did not have unlimited rights to dispose of the cut timber. Its function was to deliver, as nearly as possible, equal shares of the harvest to Scott and Weyerhaeuser. In this context, Mountain Tree must have been acting for both parties when it cut the trees, irrespective of which party “owned” the timber. Equalization of the harvest was determined after the logs were delivered and scaled.

Under these circumstances, I find both parties had a sufficient proprietary interest in the harvested timber to qualify under the “contract right to cut” test, as defined in the Treasury regulation and Revenue ruling. The cutting accomplished by Mountain Tree for both parties was to benefit each of them equally, and such benefits could only be determined after the trees were harvested. Section 631(a) benefits should apply to each party’s gains actually earned. A holding which concludes otherwise results in an inequitable paradox, i. e., Scott claims benefits on gains actually earned by Weyerhaeuser.

I would reverse the judgment of the District Court in cause 21,834.

As to cause 21,834-A, I concur in the opinion as written.