Although the Court of Claims has noted that no case has applied Corn Products to § 1231 assets, and although it "questions" its applicability, in each case presenting the question the Court has reserved the question, instead of holding that the sales involved were not "integral." See E.I. Du Pont De Nemours Co. v. United States, 1961, 288 F.2d 904, 153 Ct.Cl. 274; Philadelphia Quartz Co. v. United States, 1967, 374 F.2d 512, 179 Ct.Cl. 191; Grant Oil Tool Co. v. United States, 1967, 381 F.2d 389, 398, 180 Ct.Cl. 620. In Fishing Tools, Inc. v. Usry, E.D.La., 1964, 232 F. Supp. 400, the court rejected a contention that Corn Products applied evidently because there was no pattern of regularity as to the activities in question.
Without commenting on the merits of the Tax Court's approach to the facts before it, in the instant case Grant Oil's action — the levy of the lost-in-hole charge — is taken only when the economic nonexistence of the tool bodies is a certainty; there is no arbitrariness about the time of its action. Our decision in Philadelphia Quartz Co. v. United States, 374 F.2d 512, 179 Ct.Cl. ___, (1967), establishes that a conversion does not lose its involuntary character because the owner of the property in question yields possession of it to bailees who he knows will fail to return his property in some instances. There, as is true here, the owner retained title and assessed loss charges sufficient to deter any attempt to purchase the property de facto through the simple means of omitting the return of it.
As far as the lessor was concerned the property destroyed in the lessee's operations was irretrievably lost without opportunity of restoration or recovery. See also Philadelphia Quartz Co. v. United States, 179 Ct.Cl. 191, 374 F.2d 512 (1967). In contrast, not only did Sirbo have the power to fashion the lease agreement to prevent CBS from making the extensive alterations which were the subject of the payment, but it had the right to pursue the possible avenue of requiring CBS to restore the property to its former condition and voluntarily chose not to do so.
In Commissioner of Internal Revenue v. Gillette Motor Transportation, Inc., 364 U.S. 130, 80 S.Ct. 1497, 4 L.Ed.2d 1617 (1960), the Supreme Court, through Mr. Justice Harlan, stated: Despite peripheral allusions to the problem in several cases and articles, see e. g., E. I. du Pont de Nemours Co. v. United States, 288 F.2d 904, 909, 153 Ct.Cl. 274 (1961); Philadelphia Quartz Co. v. United States, 374 F.2d 512, 515 (Ct.Cl. 1967); Grant Oil Tool Co. v. United States, 381 F.2d 389, 398 (Ct.Cl. 1967); Wilson, Tax Dismay and the Disposal of Rental Personalty, 40 Taxes 805, 808, n. 21 (1962), and some apparently important language on the issue by the Supreme Court in Commissioner of Internal Revenue v. Gillette Motor Transportation, Inc., 364, U.S. 130, 80 S.Ct. 1497, 4 L.Ed.2d 1617 (1960), discussed infra, nowhere does there appear any definitive confrontation of the question. "Since the net effect of the [pertinent part of § 1231] is merely to remove one of the exclusions made to the definition of capital assets in § [1221], it seems evident that `property used in the trade or business,' to be eligible for capital-gains treatment, must satisfy the same general criteria as govern the definition of capital assets."