dissenting: I must disagree with the majority’s rulings on both of the questions presented in this case.
On the first question, it seems to me that there was no taxable transaction when the taxpayer exchanged his old city of Philadelphia bonds for new bonds of the same municipality which were issued for the sole purpose of refinancing the bonded indebtedness. While there were slight differences in the terms and conditions of the old and new bonds, they were, I think, substantially identical properties. They both evidenced the same investment and the same debt. In that respect I do not think that this case is distinguishable from Motor Products Corporation, 47 B. T. A. 983; affirmed per curiam, 142 Fed. (2d) 449 (C. C. A., 6th Cir.), and City Bank Farmers Trust Co. v. Hoey, 52 Fed. Supp. 665.
On the second question, I am not in agreement with the majority opinion that municipal corporations are inferentially excluded from the reorganization provisions of the statute as found in section 112 of the Internal Revenue Code.
If the refinancing of its bonded indebtedness by the city of Philadelphia constituted a reorganization within the meaning of section 112 (g) of the code, it follows that this exchange of bonds pursuant thereto was a nontaxable exchange within the meaning of section 112 (b) (3). One type of reorganization, as that term is defined in section 112 (g), is “(E) a recapitalization.” It has been held in two recent cases, Commissioner v. Neustadt's Trust, 131 Fed. (2d) 528 (C. C. A., 2d Cir.), affirming 43 B. T. A. 848; and United Gas Improvement Co. v. Commissioner, 142 Fed. (2d) 216 (C. C. A., 3d Cir.), affirming 47 B. T. A. 715, that the refinancing of a bonded indebtedness by a private corporation constitutes a recapitalization, and therefore a reorganization, within the meaning of the statute.
In both of those cases it was held that the exchange of old securities for new securities pursuant to a plan of reorganization was a nontaxable exchange. In the Neustadt's Trust case the court said:
* * * On the other hand the purpose of the statutory nonrecognition of gain or loss from reorganization transactions, favors ascribing to the word “recapitalization” a broad rather than a restricted meaning. Such purpose, as indicated by the Congressional reports printed in the margin, was apparently twofold: To encourage legitimate reorganizations required to strengthen the financial condition of a corporation, and to prevent losses being established by bondholders, as well as stockholders, who have received the new securities without substantially changing their original investment. The transaction in the case at bar meets both of these tests. By changing the interest rate and date of maturity of its old bonds and adding a conversion option to the holders of the new, the corporation could strengthen its financial condition, while the bondholders would not substantially change their original investments by making the exchange. “Recapitalization” seems a most appropriate word to describe that type of reorganization ■ and it is the very kind of transaction where Congress meant the recognition of gain or loss to be held in suspense until a more substantial change in the taxpayer’s original investment should occur. * * •
That language of the court seems particularly appropriate in the situation that we have here. The only possible way, it seems to me, of escaping the force of those decisions is to say, as does the majority opinion, that the reorganization provisions of the statute do not apply to municipal corporations.
It is said to be “manifest” that Congress intended the provisions of section 112 to apply only to privately owned enterprises. There is nothing in the wording or in the history of the statute which convinces me that Congress had any such intent. As it is written, the statute embraces all corporations, whether private, public, or quasi-public. There are no committee reports or other evidence showing that in enacting section 112 Congx-ess used the words corporation, reorganization, or recapitalization with any restrictions that would exclude municipal corporations.
The benefits of the National Bankruptcy Act, as amended in 1938 and again in 1946, are expressly extended to municipal corporations. See ch. 9, sec. 401, Title 11, United States Code Annotated. The constitutionality of the act was upheld by the Supreme Court in United States v. Bekins, 304 U. S. 27. Bankruptcy reorganizations of insolvent municipal corporations are not uncommon.
From the standpoint of the bondholder there is little difference between an exchange of bonds under a plan of recapitalization involving a municipal corporation and an exchange of bonds under a plan of recapitalizing a business corporation.
Speedway Water Co. v. United States, 100 Fed. (2d) 636, relied upon in the majority opinion, does not seem to me to be controlling here. That case involved the sale of a waterworks system by a private owner to the town of Speedway, Oklahoma, in exchange solely for bonds of the municipality. The court determined, and properly so, that there was no statutory reorganization within the meaning of section 112, but that the transfer was an out and out sale. The further observation of the court that Congress did not intend for municipal corporations to be covered by the reorganization provisions of the statute was obiter dictum.
I think that our decision should have been for the petitioner.
I respectfully dissent.