Malat

We have before us four separate petitions to review four separate decisions of the Tax Court of the United States. The four cases were consolidated for hearing and briefing before the Tax Court. The opinion of the Tax Court is reported at 34 T.C. 365 .

Since the questions of law presented for decision on the several petitions are common to the four cases, we will dispose of the four cases in a single opinion.

Three of the petitions involve income taxes and additions to tax for the calendar years 1950 and 1951. The other petition involves income taxes and additions to tax for the fiscal years ended November 30, 1950, and November 30, 1951.

In all four cases the respective taxpayers reported as long-term capital gains on their individual income tax returns for the two taxable years stated, net gains from the sales of certain real estate properties acquired by them from the following corporations of which they were shareholders: Pioneer Plaza, Inc., Pioneer Plaza No. 2, Inc., and Teri-Plaza, Inc. The Commissioner issued deficiency notices to petitioners on their *702 individual income taxes for those two years disallowing the treatment of this income as long-term capital…

(dissenting).

I am in agreement with the majority opinion insofar as it holds that the determinations made by the Commissioner are valid and that the petitions for redeterminations filed by petitioners properly invoked the jurisdictions of the Tax Court. However, I am unable to agree with the majority holding that the Tax Court was under no duty to make findings of fact but could rest its redeterminations upon the presumption of correctness of the Commissioner’s 'determinations.

I write at some length only because I feel that the decision in this case involves procedural matters which are important in the administration of the Revenue laws.

It is clear, as the majority opinion points out, that the “motions for judgments on the pleadings” were improper. The Tax Court characterized such motions as “meaningless.” Such motions, however, might reasonably have been construed as motions requiring the Commissioner to elect which of his conflicting determinations he wished to stand upon.

The Tax Court stated, “It is to be understood that such judgments will be based upon the presumption of correctness of respondent’s determinations and petitioners’ failure to sustain their burden of…