dissenting: Every indicium of a “dividend,” in the tax sense of that word, was present herein. That Capital Southwest undertook an obligation to reimburse Capital Wire for the latter’s share of a liability that might later be found to exist would not, in the usual situation, justify an-ex post iacto offset to the amount of the distribution which should properly be treated as a dividend. See United States v. Lesoine, 203 F.2d 123 (9th Cir. 1953); Estate of Lloyd E. Crellin, 17 T.C. 781 (1951), affd. 203 F.2d 812 (9th Cir. 1953). Compare Likins-Foster Honolulu Corp. v. Commissioner, 417 F.2d 285, 290-291 (10th Cir. 1969), affg. on this issue T.C. Memo. 1967-207 and T.C. Memo. 1966-273. Compare also sec. 1.301-1(g), Income Tax Regs., with sec. 1.461-1(a)(2), Income Tax Regs., and F. & D. Rentals, Inc. v. Commissioner, 365 F.2d 34, 41 (7th Cir. 1966), affg. 44 T.C. 335 (1965); Columbus & Greenville Railway Co., 42 T.C. 834 (1964), affd. per curiam 358 F. 2d 294 (5th Cir. 1966).
But, it is not enough to determine that the distribution from Capital Wire to Capital Southwest was a dividend. The ultimate issue herein is the amount of Capital Southwest’s earnings and profits. The resolution of this issue requires us to decide whether the promise of reimbursement by Capital Southwest should be equated with an assumption of direct liability for Capital Wire’s share of the tax as finally determined against the consolidated group and, if so, whether the obligation should be considered a tax liability of Capital Southwest so as to fall within the ambit of the cases holding that contested tax liabilities are attributed in the case of an accrual basis taxpayer to the taxable year to which they relate for the purpose of computing earnings and profits. See Estate of Esther M. Stein, 25 T.C. 940, 965-966 (1956), affd. per curiam 250 F.2d 798 (2d Cir. 1958); Stern Bros. & Co., 16 T.C. 295 (1951). In such event, there would be a corresponding reduction in earnings and profits having the effect of offsetting the dividend.
For my own part, I would stop short of holding that there was an assumption of liability herein. The letter agreement between Capital Wire and Capital Southwest constituted at most a promise by the latter to reimburse the former for an amount equal to Capital Wire’s share of the consolidated tax liability as finally determined. Such a promise does not, in my opinion, constitute an assumption of liability sufficient to support a direct liability by Capital Southwest for the portion of the consolidated tax allocable to Capital Wire, separate and apart from the amount allocated to Capital Southwest by the provisions of the statute and the regulations. Sec. 1552; sec. 1.1552-1(b)(2), Income Tax Regs.
Thus, I would hold that Capital Southwest’s obligation to Capital Wire was no different from any other business liability and, since its amount was not determinable in the taxable year involved, it was not accruable in that year. To make a retroactive adjustment to earnings on the basis of the agreement between Capital Southwest and Capital Wire would be to confuse an obligation which is contingent on a tax liability with one which is a contingent tax liability and greatly extend the principle of Stein and Stern Bros.1
Dawson and Irwin, JJ., agree with this dissent.That principle has been said to “add to the complexity of this [earnings and profits] area, without making any offsetting contribution to rationality.” Bittker & Eustice, Federal Income Taxation of Corporations and Shareholders 7-21 to 7-22 (3d ed. 1971).