dissenting: In the case before us each of the owners of a class or “series” of stock has the same right as that of every other owner of that stock to surrender his shares and to obtain a distribution of accumulated earnings to the date of redemption. This right existed from the time of the issuance of the stock. It could not be availed of by any shareholder, even with the connivance of the corporation, to obtain preferential treatment over some other shareholder, on the one hand, or to escape his proportionate tax liability on the other. While a stockholder remains such his dividend rights and tax liabilities are fixed and equal to those of all other shareholders. When he decides to withdraw from the corporation, his dividend rights and tax liabilities are likewise fixed and equal. There was, hence, no possibility of overreaching, on the one hand, or tax avoidance on the other.
The authorities relied upon in the majority opinion do not compel the conclusion it reaches. In May Hosiery Mills, Inc., 42 B. T. A. 646, while the corporation was obligated to redeem some preference stock out of earnings, there was no stipulation as to the proportion applicable to the individual stockholders, and none had a right to the redemption of his stock or any part of it. Forstner Chain Corporation, 45 B. T. A. 19, involved a specific arrangement between the corporation and a single stockholder long after the stock was issued, and not called for by its terms.’ Although the formal corporate resolution purported to confer similar rights on the other shareholders, it was transparently clear that all intended a distribution which was preferential to the single shareholder involved “as compared with other shares of the same class.”
In United Artists Theatre Circuit, Inc., 1 T. C. 424. 430, after quoting a statement by the Ways and Means Committee, H. R. 1860, 75th Cong., 3d sess., this Court said:
These observations * * * lend support to our conclusion that where a distribution is made available in conformity with the rights of each stockholder, where no act of injustice to any stockholder is contemplated or perpetrated, where there is no suggestion of a tax avoidance scheme, and where each stockholder is treated with absolute impartiality, the distribution is not preferential within the meaning of the statute.
Because we believe that to be a correct statement of the principle involved here, and that its application would lead to an allowance of the dividends paid credit to such mutual investment companies as petitioner, we respectfully dissent.
Harlan, J., agrees with this dissent.