dissenting: I must dissent from the conclusion of the majority. In my opinion, this holding unnecessarily distorts income of the transferred business. I would avoid such consequences 'by holding that the bad debt reserve of the proprietorship is “carried over” to the corporation.
The majority concludes that since the individual taxpayer had no further need for the bad debt reserve, he must return to income the amount of the reserve previously deducted by him but not used. However, the business will continue, and the corporate transferee will be entitled to elect to establish its own bad debt reserve and deduct the additions to it. Thus, because of the transfer of the business to the corporation, the individual taxpayer is taxed on the unused reserve, but the corporate transferee will be allowed to establish and deduct its reserve. Such consequences distort the income of the business.
The holding of the majority is inconsistent with the purpose of section 351 which is to allow the incorporation of unincorporated businesses without tax consequences. In the case of a transfer of property to a corporation solely for stock or securities, gain is not taxed, and the basis of the property is carried over to the transferee corporation. Secs. 351 and 362. A transfer under section 351 does not trigger the recapture provisions relating to the investment credit, nor the recapture provisions relating to excess depreciation. Secs. 47(b), 1245(b) (3), and 1250(d) (3).
The maj ority considers that the lack of a specific statutory authorization precludes us from allowing a carryover of the bad debt reserve in a section 351 transfer. However, without specific statutory authority, the carryover of tax attributes from one legal person to another in some cases was allowed prior to the enactment of section 381. Helvering v. Metro. Edison Co., 306 U.S. 522 (1939); Commissioner v. Sansome, 60 F. 2d 931 (C.A. 2, 1932). 1 Moreover, although section 381 contains extensive rules regarding carryovers in some transactions, Congress made clear that section 381 was not to be exclusive. S. Rept. No. 1622, 83d Cong., 2d Sess., pp. 216-277 (1954), and H. Rept. No. 1337, 83d Cong., 2d Sess., p. A135 (1954), to accompany H.R. 8300 (Pub. L. 591). See also sec. 1.381 (a)-1(b) (3), Income Tax Regs. In addition, without specific statutory authorization, the regulations provide that the transfer of an installment obligation in a transaction under section 351 is not a disposition of the obligation for purposes of section 453 (d). Sec. 1.453-9 (c) (2), Income Tax Regs.
To avoid distorting the income of the business and to carry out the purpose of section 351,1 would hold that the transferor’s unused bad debt reserve is carried over to the transferee corporation. As a result, the transferor would not be taxed on the unused reserve, and the transferee would not be allowed a deduction for building up a reserve. The transferee would stand in the shoes of the transferor so that the corporation would be required to continue to use the reserve method for treating bad debts, unless it secured the approval of the Commissioner to change such method.
Of course, I am also aware that the courts have denied a carryover in other cases, e.g., Libson Shops, Inc. v. Koehler, 353 U.S. 382 (1957); New Colonial Co. v. Helvering, 292 U.S. 435 (1934). However, the point is that courts have allowed carryovers in some situations.