dissenting: Provisions of the Internal Revenue Code imposing a. surtax on undistributed income of personal holding companies are penal in character, and for this reason should be strictly construed, Knight Newspapers v. Commissioner (C. C. A., 6th Cir.), 143 Fed. (2d) 1007; Pembroke Realty & Securities Corporation v. Commissioner (C. C. A., 2d Cir.), 122 Fed. (2d) 252. Under Florida law petitioner was organized and operated as a bank and falls literally within the definition of a bank contained in section 104 (a), Internal Revenue Code. By section 501 (b) the term “personal holding company” does not include “ (2) A bank as defined in section 104.” In the majority’s opinion, nonetheless, petitioner is classed as a personal holding company because it failed to collect fees for its services and because the Congress’ expressed purpose in excepting banks from personal holding company classification would not apparently be furthered by excepting petitioner. These reasons, in my opinion, impute to the quoted sections limitations which Congress did not enact and which a court may not judicially add.
Believing that petitioner was not a personal holding company, I dissent a fortiori from the majority’s approval of the imposition of a penalty for failure to file a personal holding company tax return. Petitioner’s obligation to do so was at best doubtful; apparently it had not filed any in prior years and the Commissioner had not required it to do so, and, while state law is not determinative of classification under the Federal revenue acts, petitioner’s status as a supervised Florida bank lent plausible color to an honest belief that it fell within the specific exception of section 501 (b) (2). Failure to file under such circumstances was due in my opinion to “reasonable cause,” not to “willful neglect.” I do not agree that elimination of the penalty here would require elimination of the penalty in all cases where classification “was not entirely clear-,” as stated by the maj ority. This Court can decide whether doubts were reasonable on the facts established in each case presented.