Waterman, Moore and Kaufman, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
Whatever else he has called, the Commissioner of Internal Revenue is rarely classified as a film critic. This does not mean that the Commissioner is without his opinions on matters cinematic. Take, for example, "A Streetcar Named Desire" (Streetcar), the film version of Tennessee Williams' play, which is the subject of the present appeal. When Streetcar was originally released it was widely hailed, with many terming the picture "a work of art." The Commissioner appears to prefer a slightly different phrase; he thinks Streetcar is a "depreciable asset."
Unlike most aesthetic judgments, the validity of the Commissioner's determination has immediate monetary significance, as it lies at the heart of this appeal from a Tax Court decision holding Twentieth Century-Fox Film Corporation (Fox) liable for a tax deficiency of $67,500 which was assessed against Charles K. Feldman Group Productions (Group). 45 T.C. 137 (1965). Fox is the transferee of Group's assets and concedes its own liability if Group is in fact liable for the deficiency. The sole issue presented for our determination is whether the gain realized by Group from the sale of all its rights in Streetcar to its controlling shareholder, Charles K. Feldman, was ordinary income or capital gain. And, the answer to the question depends on whether the film "in the hands of * * * [Feldman] * * * [was] property of a character which is subject to the allowance for depreciation provided in section 167." Internal Revenue Code of 1954 (Code) § 1239, 26 U.S.C. § 1239.
Group was a California corporation, organized in 1937. From its inception, Charles K. Feldman owned all of Group's outstanding preferred stock, and 96.25% of the outstanding common. The corporation engaged generally in the business of acquiring and preparing various literary properties (novels, plays, short stories, etc.) for use as motion pictures. Group derived its income from licensing others to use these properties, and from the rentals it received from motion pictures it produced.*fn1
In March 1955, Fox offered to purchase either the assets of Group or all of its outstanding stock for $1,650,000.*fn2 Feldman thereupon requested the Internal Revenue Service (Service) to rule on whether the proceeds he would receive from the sale of his Group stock could be treated as long-term capital gains. It soon became apparent that a favorable ruling might be jeopardized because of the likelihood that Group was a "collapsible corporation" -- in which case the gain Feldman would realize from the sale of his stock would be taxable as ordinary income. Code § 341(a), 26 U.S.C. § 341(a).
Eventually, however, the Service made it known that a ruling favorable to Feldman would be made upon the condition that prior to the sale of his stock, Group sold all the rights it held in the cinema classic Streetcar. In order to obtain this ruling, Feldman personally agreed to purchase the film from Group,*fn3 and on September 1, 1955 the sale took place.*fn4 A week later Fox bought all of Group's outstanding stock. On its federal income tax return for 1955, Group reported the $250,000 it received from Feldman for Streetcar as a long-term capital gain, and paid a tax of $62,500.*fn5
In order to determine whether this capital gains treatment was proper, we must explore briefly the history of Streetcar. The film was, of course, based on the play of the same name written by Tennessee Williams. In 1949, Mr. Williams granted Group the exclusive motion picture rights to his play.*fn6 Group proceeded to have four screen adaptations prepared, the last of which served as the basis for the film. The production was financed by Group and Warner Brothers, Inc. (Warner) pursuant to an agreement entered into in 1949. The contract provided that Group would own the motion picture, its copyright, and the actual films themselves, and would receive a share of the receipts that resulted from the motion picture's distribution. Warner, on the other hand, acquired the distribution rights.
Streetcar was released for general exhibition in 1951, and Group began receiving its share of the distribution receipts. In 1955, however, a dispute arose concerning Warner's accounting of the funds it received from the distribution of the motion picture. As a result, on March 8, 1955 the agreement between Warner and Group was modified to provide that through January 1, 1958 Warner would retain all proceeds arising from its distribution of Streetcar. On that date, Warner's rights in Streetcar and the income therefrom would terminate, and Group would have all rights in the film. When Feldman purchased Streetcar from Group in September 1955 he took it subject to this amended agreement. Feldman held the film until October 31, 1957, at which time he sold it to Fox.*fn7
It is the Commissioner's position that Group's gain from the sale of Streetcar to Feldman in 1955 was ordinary income. The Commissioner, as we have stated, relies on § 1239 of the 1954 Code which provides:
(a) Treatment of gain as ordinary income -- In the case of a sale or exchange, directly or indirectly, of property in subsection (b) --
(2) between an individual and a corporation more than 80 percent in value of the outstanding stock of which is owned by such individual * * **fn8
any gain recognized to the transferor from the sale or exchange of such property shall be considered as gain from the sale or exchange of property which is neither a capital asset nor property described in section 1231.
(b) Section applicable only to sales or exchanges of depreciable property. -- This section shall apply only in the case of a sale or exchange by a transferor of property which in the hands of the transferee is property of a character which is ...