c33:No. 11, Docket 25527

MOORE, Circuit Judge
(dissenting).
I find no reason upon the facts or the law for remand. The documents evidencing the transactions are before the court and are unambiguous. They may be easily construed as a matter of law. No issue of good will, in my opinion, exists in this case. The term has been artificially injected into it by the taxpayer and the Tax Court. Four gasoline stations were acquired by the taxpayer, two by purchase, two by lease. All four were then leased; none was sold. Whatever good will may have been attached to the properties, its value was included in the acquisition price. No sums were specified as good will. Since none of the properties was sold there could have been no sale of good will. If there were any good will value it could have been reflected only in the rental charged. The special payments received by the taxpayer although denominated “goodwill” were actually a part of the consideration for the leases and sub-leases — hence either prepaid rent or a bonus.
Section 29.22(a)-10 of Treasury Regulations promulgated under the Internal Revenue Code of 1939 provides that “Gain or loss from a sale of good will results only when the business, or a part of it, to which the good will attaches is sold, * * Because here no business was sold, the factual premise for the application of a gain or loss conclusion is wholly lacking. The elaborate hypothetical factual research — now after 11 years practically antiquarian — suggested by the majority, in my opinion, can only create confusion. To try to find a value (or better to speculate as to a value) for good will and then to write this value into the original acquisition contracts, is indeed to create business arrangements which the parties themselves never entered into at the time. Then to determine gain or loss a second contrary-to-fact hypothesis is required because the taxpayer did not convey or have the legal power to convey to its lessees. There may have been certain tax advantages which the taxpayer hoped to gain by accepting lump sum payments and attributing them to good will but to achieve such advantages the transactions must have had business and legal reality (see Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, and the many cases applying variations of its doctrine).
The taxpayer has also failed to sustain its burden of proof “to establish the cost or other basis of the good will sold” (Sec. 29.22(a)-10).
I would reverse the decision of the Tax Court and uphold the Commissioner’s determination.

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