dissenting: This was not “interest on indebtedness,”1 for two reasons. First, it was not interest and, second, there was no indebtedness.
Interest has been defined as payment for the use or forbearance of money.2 Nothing was contributed to this enterprise either in the first place nor at the time the securities in controversy were issued3 which can be construed as the contribution of money or even of money’s worth. 1432 Broadway Corporation, 4 T. C. 1158; affd. (C. C. A., 2d Cir.), 160 Fed. (2d) 885; Sw.oby Corporation, 9 T. C. 887; cf. New England Lime Co., 13 T. C. 799. Not even property committed to the venture as in those cases was involved here. There could hence be no payment for the use or forbearance of anything.
There was no indebtedness because the nature of the original participation, constituting an equity interest at the risk of the business, ■was never changed. Even after the so-called debentures were issued, there was no present indebtedness. Neither the interest payable only out of net “operating income,” and only then if “available,” nor the principal, was payable in any event; and during these years neither the interest nor the principal partook of the nature of a definitive promise to pay any sum at any time. The most that can be said is that the securities carried a due date some years in the future. Even if nonpayment at that time would create an indebtedness, a point-that is by no means clear, there was no real change whatever in the relationship of the parties before ahd after the “debentures” were issued; certainly not any during the tax years at bar. The securities came behind creditors and were senior only to the common stock, a position typically held by preferred shares. It is moreover, as Judge, now Mr. Justice Minton, said in Commissioner v. John Kelley Co. (C. C. A., 7th Cir.), 146 Fed. (2d) 466, 468, not “unusual today for preferred stock to have a maturity or retirement date.”
There is no more reason for holding these to be interest-bearing obligations on authority of the Kelley case than for holding the contrary on the authority of Talbot Mills.4 The Kelley and Talbot Mills cases-were straight Dobson5 decisions. The Dobson principle is no longer law. Sec. 36, P. L. 773, 80th Cong., 2d sess.; 26 U. S. C., sec. 1141 (a), amending section 1141 (a), I. R. C. If those cases still stand for anything, it is only the proposition that, as triers of the fact, we have an unavoidable primary obligation which I fear in this instance we are failing to discharge.
VaN FossaN, AeNold, Hill, Disney, and Harron, JJ., agree with this dissent.Internal Revenue Code, section 23 :
“In computing net income there shall be allowed as deductions : *******
“(b) Interest. — All interest paid or accrued within the taxable year on indebtedness * * *.”
Webster’s New International Dictionary (1924), p. 1125.
There is some suggestion that the resolution of petitioner’s directors, declaring the “dividend,” created an indebtedness, the liquidation of which was accomplished by issuance of the debentures. The form of the resolution, however, prevents us from accepting the contention. The distribution was not to be made in money but in debentures. The stockholders were given no option to have the obligation paid in cash. It seems evident that all they were ever entitled to were the debentures themselves. We can not say that any debt ever existed outside the four corners of whatever the debentures themselves provided, or that the corporation received anything of value by the cancellation of such an additional debt.
Even the Kelley case as viewed by the Supreme Court is not authority for the present result. A factor, relating not to the terms of the obligation, but to the surrounding circumstances, was evidently regarded as significant in the John Kelley Co. and Talbot Mills eases. It serves to indicate the nondeductibility of the present claim. That is the lack of any consideration received by petitioner for the issuance of its so-called obligations, with the consequence that the payments of “interest” can hence not be treated as expended for the use of money or property borrowed or acquired by petitioner by their issuance. Thus, in John Kelley Co., supra, the Supreme Court said (326 U. S. 521, 526) :
“* * * In the Kelley case there were sales of the debentures as well as exchanges of preferred stock for debentures * * * On the other hand, 'in the Talbot Mills case, the Tax Court found the factors there present of * * * the limitation of the issue of notes to stockholders in exchange only for stock, to be characteristics which distinguished the Talbot Mills notes from the Kelley Company debentures * *’ *.
“We think these conclusions should be accepted * *
Dobson v. Commissioner, 320 U. S. 489.