dissenting in part: In its conclusion that to some extent a taxable stock dividend resulted from the combined distribution on class A and class B shares, the present opinion seems to me correct and not subject to serious question. From the holding that a taxable dividend was received by the stockholders who held disproportionally large amounts of class A stock (specifically Edwin L. Wiegand and Ernest N. Calhoun), I consequently do not dissent.
My first difficulty comes with respect to those shareholders (A. P. Wiegand, M. M. Greer, and Fred I. Tourtelot), who held class A and class B stock in the proportions of the total issue, so that both before and after the divi3p5d”iheir proportionaTlnterest in relation to the other stockholders and to the corporation was unchanged; it being apparently accepted by all parties and by this Court that the “proportional interest” test is the one to be applied. On this aspect of the controversy, the decisive issue appears to be whether the whole body of stockholders taken as a single class is to be considered, or whether the individual situation of each taxpayer is what governs.
But, while it would be idle to suggest that there is any controlling authority on this point to support either view, and while the question is involved and difficult, the practical necessities of levying a tax on an individual seem to me to require that his liability should be gauged not by that of the group to which he belongs, but by a consideration solely of his own situation. As long ago as United States v. Phellis, 257 U. S. 156 (1921), the Supreme Court expressed the view that (p. 174) :
* * * it would be erroneous, we think, to test the question whether an individual stockholder derived income in the true and substantial sense through receiving a part in the distribution of the new shares, by regarding alone the general effect of the reorganization upon the aggregate body of stockholders. The liability of a stockholder to pay an individual income tax must be tested by the effect of the transaction upon the individual. * * *
Since I believe that to be still the sound approach; since these two dividends were obviously a part of a single transaction, proposed at the same directors’ meeting, approved at the same stockholders’ meeting, declared in the same sentence of the same resolution, and paid on the same day, so that undoubtedly “the assent of the stockholders was based upon this as a part of the plan,” United States v..Phellis, supra; and since the consequence is that as to the individual stockholders specified the effect of this integrated operation was to leave their proportionate interests completely unaffected, I reluctantly disagree with the opinion in so far as it holds that any taxable dividend was received by them.
A different problem is presented by the situation of those stockholders who held only class B shares. Their proportionate interest was, it is true, affected conversely to the situation of the holders of class A stock. But a realistic appraisal of the facts seems to me to show that the benefit of the change in proportionate interests accruing to the class A stockholders was achieved at the expense of the holders of the other shares. Respondent in fact concedes that: “It is also true that the shift in proportionate interests is on the whole prospectively detrimental to B.” I would include such a finding in the statement of facts. If that were done, even on the theory on which the case is decided, the determination would be required that the holders of the class B shares, as a class, obtained no benefit from the distribution upon which they should be taxed.
For the reasons stated, I regretfully dissent from the conclusions reached as to all but the disproportionate holders of the class A shares.
Black and HaRRON, JJ., agree with this dissent.