dissenting: I am unable to agree with the majority holding that the cancellation of petitioner’s indebtedness by Hudson did not result in an increase of petitioner’s equity invested capital.
The courts have consistently recognized the cancellation of in-debtednesses by stockholders as contributions to the debtors’ capital. Although Hudson was not directly a stockholder of petitioner, it owned 51 per cent of the stock of Middle Atlantic which in turn owned 77.3 per cent of petitioner’s stock. This indirect ownership by Hudson of a majority interest in petitioner is given no weight in the majority opinion.
The Supreme Court in Helvering v. American Dental Co., 318 U. S. 322 said:
* * * Where a stockholder gratuitously forgives the corporation’s debt to himself, the transaction has long been recognized by the Treasury as a contribution to the capital of the corporation. Regulations 45, Art. 51, through to Regulations 94, Art. 22 (a)-14. Commissioner v. Auto Strop Safety Razor Co., 74 F. 2d 226. [To the same effect is sec. 29.22 (a)-13 of Reg. 111.]
Judge Learned Hand, speaking for the Circuit Court of Appeals for the Second Circuit in United States v. Oregon-Washington R. & Nav. Co., 251 Fed. 211, said:
Now, it seems to us hardly arguable that the cancellation of the debt in question was not in the category of capital. The corporation had just commenced its business; the cancellation of the debt was a means of contribution to its capital account, quite as though the money had been contributed by the stockholder only to enhance the value of his stock. * * *
See also Commissioner v. Auto Strop Safety Razor Co., 74 Fed. (2d) 226, and Carroll-McCreary Co. v. Commissioner, 124 Fed. (2d) 303, in which the same court of appeals applied the above principles and regulations in recognizing additions to capital through the cancellation of indebtedness; Walsh Holyoke Steam Boiler Works, Inc. v. Commissioner, 160 Fed. (2d) 185, in which the Circuit Court of Appeals for the First Circuit noted at page 188 that:
* * * The Tax Court assumed, we think correctly, that a corporation’s obligations, when turned in for stock, may be regarded as “property” within the meaning of § 718 (a) (2). But in that view, this “property” is included in equity invested capital “in an amount equal to its basis (unadjusted) for determining loss upon sale or exchange.” Since the recapitalization would constitute a tax-free reorganization, the “property” would be carried into the corporation’s equity invested capital at the transferring-bondholders’ basis * * *
and George Hall Corporation v. Shaughnessy, 67 Fed. Supp. 748, in which the District Court of the United States for the Northern District of New York, relying upon the above cases, held that the forgiveness of indebtedness constituted a contribution to capital.
This Court has repeatedly recognized that there is an addition to equity invested capital where a corporation issues capital stock against its indebtedness and where the circumstances show a purpose on the part of the creditor to make an additional contribution to the debtor corporation’s capital and to increase his investment in the business. The Parisian, 2 B. T. A. 415; Charles F. L'Hommedieu & Sons Co., 6 B. T. A. 41; Cohn-Goodman Co., 7 B. T. A. 475; Harry Sherin, 13 T. C. 221. There is no question, on the evidence, but that Hudson intended to make a contribution to petitioner’s capital so that petitioner could continue in business.
The majority opinion seems to put considerable reliance upon Doylestown & Easton Motor Coach Co., 9 T. C. 846. In that case the debtor-creditor relationship grew out of the payment by one corporation of an affiliated group of the operating losses of another of the group. Since the operating losses had been fully deducted in consolidated returns filed by the group, we held that the indebtedness had no basis in the hands of either the creditor or, when forgiven, the debtor. We have no such situation here. The respondent does not contend that the indebtedness in question did not have a basis in the hands of the creditor, Hudson, equal to its full amount.
The situation here, as we see it, is the same as if Hudson had given petitioner $99,965.05 in cash to apply on its indebtedness to Foedisch, not as a loan but for the purpose of improving petitioner’s capital account. Unquestionably, the amount so contributed to petitioner would have gone into its invested capital as “a contribution to capital” under section 718 (a), Internal Revenue Code, and there would be no problem of a “basis” for the forgiven indebtedness.
Ajrundell and Johnson, //., agree with this dissent.