dissenting: I am unable to bring myself to believe that section 718 (a) (1) of the Internal Revenue Code, requiring money to be previously paid in for stock in order that the amount may be included in equity invested capital, can properly be applied under the facts in this case. The majority opinion holds that the distribution made by the petitioner to its stockholders in 1918 was a cash dividend and that the stock simultaneously issued to them was sold for cash. The resolution of June 6,1918, never uses the word “dividend.” The sale of $16,400 in stock to E. P. Brinker and W. D. Beard was subject to “an agreement as may be provided by said board of directors,” as to which we know nothing further. W. D. Beard received $8,200 in stock, yet there is no evidence as to whether he ever paid in money or even a check. Brody did not have the money to pay for his stock and no showing is made as to whether the others had the necessary funds to cover their checks. The corporation’s check was not good. Such check kiting, in my opinion, does not represent money within the purview of the above statute. There is no evidence as to the amount of petitioner’s liquid assets during June 1918. The fact that there was an overdraft of $10,800 which was honored is by the majority taken to indicate a strong borrowing position. It does not indicate such position beyond $10,800, which seems of little importance, considering the $275,000 here involved, and such overdraft certainly indicates a weak financial position.
The majority opinion relies upon the Hunt, McKransky, and Paul cases. The Hunt case is based upon the fact of debt created by resolution. No such debt was here created. Moreover, in the Hunt case the agreement of the stockholders was before the declaration of the dividend and the corporation had an excess surplus greater than the dividend. The Humt case is distinguished in George I. Smith, 21 B. T. A. 782, because of the obligation created by the earlier declaration of dividend, while in the Smith case it was in the same resolution. Here, if there was any declaration of dividend it was in the same resolution with the stock offer. The Smith case also points out that the Hunt case involved an agreement to pay back the money by the execution of checks. The Paul case too depends upon the fact that a debt was created by the declaration of dividend prior to the resolution authorizing increase in stock. The McKransky case offers no authority for the conclusion here, for therein the dividend, which was held to be in cash, was declared upon preferred stock, the certificates for which prohibited a stock dividend. Moreover, checks were paid in by the holders of both preferred and common stock and one stockholder, an employee, received cash and had no option to take stock. As the majority opinion states, the Brading case also relied upon is based upon the Hunt case. In the Brading case there was a stock issue of $40,000, with a surplus of only $27,000, and an agreement that the remainder was to be taken care of by a real estate deal eighteen months later. Such circumstances obviously are no basis for the majority conclusion here. Believing that money was not paid in for the stock within section 718 (a) (1), I dissent.
Turnee, Van Fossan, Arnold, and Hill, JJ., agree with this dissent.