- 37 -
1964); Moore v. Commissioner, 17 T.C. 1030 (1951), affd. 202 F.2d
45 (5th Cir. 1953); W. A. Drake, Inc. v. Commissioner, 3 T.C. 33
(1944), affd. 145 F.2d 365 (10th Cir. 1944). These cases are
cited for the proposition that the proper time to test for
control is when there is a binding commitment to sell. However,
these cases do not deal with section 267(f) and the
aforementioned regulations. Additionally, the treatment afforded
a loss from a transaction between members of a controlled group
is not the same as the treatment afforded to a loss between
parties otherwise specified in section 267(b). We do not think
it likely that Congress would specify a different treatment if
there were no relevant distinction to be drawn.31 We must be
cautious in applying judicial glosses developed by the courts to
prevent technical avoidance of the purpose of a statute (loss
disallowance on intrafamily transactions) to a new situation (the
controlled group provisions). This caution is intensified when
to do so would conflict with our reading of the regulations.
31The controlled group provisions of sec. 267(f) do not
share a common ancestry with the other relationships dealt with
in sec. 267. The current subsecs. (b)(3) and (f) of sec. 267
were first inserted into the Code in 1984 by the Deficit
Reduction Act of 1984, Pub. L. 98-369, sec. 174(b)(2) to (3), 98
Stat. 705. They had no counterpart in the 1939 or the 1954
Codes. In contrast, the provisions now embodied in sec.
267(b)(1) and (2) can be traced back to sec. 24(b)(1)(A) and (B)
of the 1939 Code. Federal Cement Tile Co. v. Commissioner, 40
T.C. 1028 (1963), affd. 338 F.2d 691 (7th Cir. 1964); Moore v.
Commissioner, 17 T.C. 1030 (1951), affd. 202 F.2d 45 (5th Cir.
1953); W. A. Drake, Inc. v. Commissioner, 3 T.C. 33 (1944), affd.
145 F.2d 365 (10th Cir. 1944) (all interpret sec. 24(b)(1)(B) of
the 1939 Code).
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