OPINION.
Murdock, Judge:A surtax on undistributed profits is imposed under section 14 of the Revenue Act of 1936. Certain credits are allowed, including one for dividends paid. See section 27. The latter section provides that the dividends paid credit in general shall be the amount of dividends paid during the taxable year. Subsection (d) is as follows:
(d) Dividends in Obligations of the Corporation. — If a dividend is paid in obligations of the corporation, the amount of the dividends paid credit with respect thereto shall be the face value of the obligations, or their fair market value at the time of the payment, whichever is the lower. If the fair market value is lower than the face value, then when the obligation is redeemed by the corporation, the excess of the amount for which redeemed over the fair market value at the time of the dividend payment (to the extent not allowable as a deduction in computing net income for any taxable year) shall be treated as a dividend paid in the taxable year in which the redemption occurs.
The Commissioner, in disallowing the credit, must have concluded that the notes had no fair market value, since that alone would explain his allowance of a credit to the extent of the small amount of cash paid. He did not suggest that the dividend was preferential. The determination of the Commissioner that the notes had no fair market value is presumed to be correct until proven otherwise. The first issue then is one of fact — what was the fair market value of the notes at the time they were distributed? We have concluded from all of the evidence that there is a clear preponderance in favor of the petitioner, and a finding has been made that the fair market value of the notes at the time they were distributed was equal to their full face value.
That finding completely disposes of the case, because the argument of counsel for the Commissioner that the dividend was preferential within the meaning of (g) is made only if we hold that the fair market value of the notes was less than their face value. Cf. I. T. 4514, C. B. XV-2, p. 90. His whole argument as made falls with the finding that the notes had a fair market value equal to their face value.
Reviewed by the Court.
Decision will be entered under Rule 50
Leech, Mellott, Tyson, Disney, and Kern, J. J., dissent.