The majority opinion recognizes that on the facts there was a “technical” recapitalization and reorganization of J. Robert Bazley, Inc., in 1939, but holds that the reorganization lacked “a legitimate business purpose” and therefore must be denied recognition for tax purposes, under the doctrine of Gregory v. Helvering, 296 U. S. 465.
In the Gregory case the Court disregarded, as a mere sham, a corporate entity which was created for the sole purpose of effecting a tax-free transfer of corporate assets to stockholders and which was dissolved immediately after it had served its purpose in carrying out the artifice.
I do not think that the principle of the Gregory case is applicable here. It seems to me that the evidence shows a legitimate business reason, perhaps several legitimate business reasons, for the recapitalization. Some of those reasons are plainly set out in the findings of fact. The evidence discloses a further reason, which is not shown in the facts; namely, that under the recapitalization there was set up the basis for an annual deduction of $24,000- of interest on the debenture bonds which were issued in exchange for common stock. Petitioner J. Robert Bazley testified:
A. Furthermore, it seemed to us in conference with this management, that this plan of issuing common stock and debentures would also secure for the corporation certain benefits inasmuch as the fixed charges on the bonds would have the purpose of reducing Federal and State taxes, and it would also enlarge the percentage of dividends on the reduced value of the stock inasmuch as the value of the stock had been reduced.
It seems to me that this reason alone, that is, the reduction of taxable income, might be deemed sufficient to give substance to the recapitalization. The Court observed in the Gregory case that: “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, can not be doubted,” citing United States v. Isham, 17 Wall. 496; Superior Oil Co. v. Mississippi, 280 U. S. 390; Jones v. Helvering, 71 Fed. (2d) 214.
In Commissioner v. Capento Securities Corporation, 140 Fed. (2d) 382, the Circuit Court of Appeals for the First Circuit held, affirming 47 B. T. A. 691, that the issuance by a corporation of its preferred stock for its outstanding bonds constituted a recapitalization, and therefore a statutory reorganization. The purpose of the recapitalization there, which was held to be a legitimate une, was to facilitate the securing of loans from the banks. Distinguishing Gregory v. Helvering, supra, where “the purported ‘reorganization’ though following the literal language of the statutory definition, was an operation having no business of corporate purpose,” the Court observed that:
* * * There resulted a permanent revision of the capital structure of Raytheon Production Corporation pursuant to a plan of recapitalization — a normal business procedure, dictated by the necessity of raising new capital. In such circumstances it is the purpose of the nonrecognition provisions of the Act to save the taxpayer from an immediate recognition of a gain, where, in a popular and economic sense, there has been a mere change in the form of ownership and the taxpayer has not really “cashed in” pn the theoretical gain, though a gain may have accrued in a constitutional sense. * * *
See also Bass v. Commissioner (C. C. A., 1st Cir.), 129 Fed. (2d) 300.
I think that the finding of the Tax Court in this case that the reorganization of J. Robert Bazley, Inc., lacked a true business purpose is contrary to the evidence.
AruNdell and Van Fossan, JJ., agree with this dissent.