dissenting: I am unable to agree with the decision reached by a majority of the Court in respect of the second issue. The penalizing rate of tax imposed by section 500 on the undistributed income of a personal holding company was obviously intended to force such a corporation to distribute its profits so that they would be subject to tax as income of the shareholders. General Securities Co. v. Commissioner, 123 Fed. (2d) 192; Pembroke Realty & Securities Corporation v. Commissioner, 122 Fed. (2d) 252. It is to me inconceivable that Congress intended the imposition of such a tax upon income which a corporation had a legal justification and a moral duty to retain. In the prevailing opinion stress is placed on the absence of a specific court order restraining petitioner in the Use of its funds and on the literal wording of section 504, defining undistributed subchapter A net income. The rationale adopted may well be applicable to the ordinary income tax, which was the subject of consideration in North American Oil Consolidated v. Burnet, 286 U. S. 417, but in the construction of a statute imposing a penalizing surtax, the same inflexibility is not demanded, and in Knight Newspapers, Inc. v. Commissioner, 143 Fed. (2d) 1007, the Circuit Court of Appeals for the Sixth Circuit, in a well considered opinion, refused to apply it, saying:
* * * It Is within the power of the court to declare a thing which is within the letter of the statute, not governed by the statute, because not within its spirit or the intention of its makers. * * *
In that case the taxpayer, a personal holding company, received in 1939 a large dividend on the common stock of its subsidiary. Because state law and the terms of the subsidiary’s preferred shares forbade payment of a dividend under circumstances existing, the dividend was rescinded in 1940. As payment had been made by a credit entry of the amount on the subsidiary’s indebtedness to the taxpayer, refund was effected by a canceling debit entry on the books in 1940. The Commissioner sought to treat the dividend as undistributed profits of 1939, subject to the surtax imposed by section 500. In holding that it should not be so treated, the Circuit Court of Appeals, invoking the equitable doctrine of constructive trusts to prevent injustice, held that the taxpayer was a constructive trustee in its relation to the dividend, and adopted the view that:
* * * It certainly was not within the intention of the Congress to treat contingent gains as income subjecting a holding company, not organized for tax evasion purposes, to the severe penalties of the Act. * * *
Despite differences in facts, I believe that the same equitable principles there applied require a decision of this issue in petitioner’s favor. Petitioner was not organized for tax evasion purposes, and when it acquired the patent and assets from Andrews, trustee, it did so with full knowledge that Andrews was acting for those who claimed an interest under assignment from Bradley or Bradley’s wife, and that those interests were disputed in a pending suit by Seaton, who asserted an adverse claim to the whole. Petitioner became a constructive trustee of the type defined in Perry on Trusts and Trustees, vol. 1,7th Ed., p. 379:
§ 217. Another large class of constructive trusts arises from purchases or conveyances from trustees, or other persons holding a fiduciary relation to property. It is a universal rule, that If a man purchases property of a trustee, with notice of the trust, he shall be charged with the same trust, in respect to the property, as the trustee from whom he purchased. And even if he pays a valuable consideration, with notice of the equitable rights of a third person, he shall hold the property subject to the equitable Interests of such person. * * * [Italics supplied.]
In deciding the issue raised on demurrer, the Supreme Court of Tennessee stated:
It must be borne in mind, however, that this is a suit in a state court seeking to hold one, and those claiming under him, liable as a constructive trustee, for an alleged breach of trust and confidence, and to compel them to render an account for unjust enrichment.
We, therefore, conclude that the facts, well pleaded in the bill, are sufficient to create a constructive trust as against Bradley and those claiming through him by immediate or ultimate assignment.
The relevance of the remarks of the Suprelne Court of Tennessee is enhanced by the fact that in its petition to the court petitioner set forth that in accepting the transfer of the patent and assets from Andrews it agreed:
* * * to immediately qualify to do business under the laws of the State of Tennessee and to intervene in this cause, to the end that this Petitioner might be subject to tbe orders and decrees of this Court, and to the end that all of said assets received by this Petitioner from defendant Andrews would remain under the jurisdiction of Your Honor’s Court and be subject to all orders and decrees of Your Honor. * * *
If petitioner had distributed the royalties in its possession in 1940, it obviously would have deprived itself of the power to distribute them to Seaton and the claimants under him in case the court should later render a decision in Seaton’s favor. Indeed it is not unreasonable to suppose that if petitioner had manifested an intent or made an attempt to dispose of them, Seaton could have procured a restraining order. I do not believe that its position should be deemed any less clear or the legal incidents of its duty less effective because it voluntarily held the royalties, as it had agreed to do, pending the court’s decision as to the true owner. While true that it held them under a claim of right and reported them properly for ordinary income tax, the tax which it here resists results from its failure to distribute moneys which it was under an obligation to hold and which it had promised to hold, subject to the court’s order. To impose a.penalizing tax under the circumstances is to penalize good faith. Congress did not intend by section 500, et seq., to bring about such a result, and for the reasons given in Knight Newspapers, Inc. v. Commissioner, supra, equity requires, in my opinion, that petitioner’s position as a constructive trustee be recognized and respected by excluding the royalties received in 1940 from income. While legally petitioner held its assets under a claim of right, its tenure was at all times subject to an equitable obligation as constructive trustee to make distribution to the true owners. It lay within the province of the Tennessee Supreme Court to decide whether these were the claimants under Bradley or under Seaton, and, as the court had not decided, petitioner was in no position to know its duty. To refrain from making a distribution was its only proper course in the premises, and to penalize it for pursuing that course is, in my opinion, a grave injustice. The remarks of the Circuit Court of Appeals for the Fifth Circuit in Hilpert v. Commissioner, 151 Fed. (2d) 929, while referring to facts substantially different from those here considered, seem singularly applicable to the case at bar:
We agree with the dissenting opinion in the Tax Court that the Tax Court’s holding seems to be entirely unrealistic. The appetite for taxes is not so voracious, the commands of the statute are not so inexorable, as to require the doing of an injustice when there is open another course that is more fully consonant with law and reason and which course, if followed, will lead neither to evasion by the taxpayer nor extortion by the Government.ÁRTjndell, ARnold, Hill, and Harlan, JJ., agree with this dissent.