OPINION.
Kern, Judge:Section 351 of the Revenue Act of 1936 and its counterparts, section 401 of the Revenue Act of 1938 and section ¶>00 of the Internal Revenue Code, imposed a surtax on undistributed net income of personal holding companies. Sections 351 of the Revenue Act of 1936, 405 of the Revenue Act of 1938, and 504 of the Internal Revenue Code contain definitions of the undistributed income which is subject to the tax and provide that in arriving at the amount thereof an allowance is to be made of the dividends paid credit provided in section 27 of such acts and the code, subject to specified limitations. For present purposes, the dividends paid credit provided in section 27 is the amount of “dividends paid during the taxable year,” excluding preferential dividends and distributions not taxable as dividends in the hands of the stockholders. For the purpose of the credit, distributions in liquidation, to the extent chargeable to the earnings or profits accumulated after February 28,1913, are to be treated as taxable dividends paid.
For the purpose of computing its personal holding company surtax, the petitioner took dividends paid credits of $23,954.⅝89, $24,000, $47,-000, and $26,000 for 1937,1938,1939, and 1940, respectively. The respondent allowed the credit taken for 1937 to the extent of $14,000 and disallowed the balance of the credit taken for that year and the entire amount of the credits taken for the other years. The petitioner contends that on the situation here presented it was entitled to credits of $24,000 for each of the years 1937 and 1938 and that for 1939 and 1940 it was-entitled to credits in the amount of its net income for such years, such amount being less than the amount declared and paid as dividends in the respective years. The respondent takes the position that his action was proper and should be sustained.
Year 1937.
The dividends paid credit of $24,000 contended for by petitioner for 1937 is composed of two amounts, namely, $14,000 and $10,000. The $14,000 represents the amount of the dividend declared by petitioner’s directors at their meeting on December 16,1937, and has been allowed by. respondent as a dividends paid credit. The remaining amount of $10,000 represents what the petitioner’s directors, in a resolution adopted at their meeting on December 16,1937, described as “the dividend of Ten Thousand DollaRS declared February 1,1936” and which the stipulated facts show was, on February 1, 1936, credited as dividends in the amount of $2,500 to each of the petitioner’s -four stockholders, made subject to their withdrawal, reported by them as dividends in their 1936 income tax returns, and also similarly reported by them in their 1937 returns. Everett St. Clair, for many years the president and general manager of the petitioner, testified that the check*of $5,200 issued by petitioner to him on December 26, 1937 ($800 having been previously paid to him), and the checks issued on the same date to his brothers in the amount of $6,000 each, were issued with the intention and for the purpose of paying dividends for 1937. In this conflicting evidentiary situation the petitioner contends that it declared and paid $24,000 in dividends in 1937 and, therefore, is entitled to have the above mentioned $10,000 allowed as a dividends paid credit in that year.
In our opinion the $10,000 in question clearly represents a dividend which was declared on February 1,1936, and was credited to each of the four stockholders and made subject to their withdrawal in that year. Where, during its taxable year, a corporation declares a dividend, credits the amount thereof to its stockholders, and makes it subject to their unrestricted demand and control, such action is the equivalent to payment of a dividend for the purpose of the dividends paid credit and entitles the corporation to a credit for the year of such action. Valley Lumber Co. of Lodi, 43 B. T. A. 423. It follows that petitioner was entitled to a dividends paid credit on account of the $10,000 dividends -in 1936. It is obvious, therefore, that petitioner can not claim such credit for 1937. It is true that in 1937 checks were drawn in favor of the brothers in amounts which included their share of the $10,000 dividend credited to them in 1936. But the drawing of such checks in 1937 does not, in our opinion, alter the fact that the stockholders constructively received $10,000 in dividends and petitioner was entitled to and may have taken a dividends paid credit on account thereof in 1936. In so far as the amount of checks drawn in 1937 represented the $10,000 of dividends credited to the stockholders in 1936, .it must be considered as a withdrawal of an amount previously credited and previously received constructively. We therefore hold that petitioner is not entitled for 1937 to a dividends paid credit to the extent of $10,000 of the $24,000 claimed for that year. The remaining $14,000 has been allowed by respondent and therer is, therefore, no issue for our consideration with respect thereto.
In its petition and in its opening brief the petitioner contended that in event we should decide that it was entitled to a dividends paid credit of only $14,000 for 1937, then we should hold that the payments of $6,000 made to each of the three brothers in 1937, or $18,000, was allowable as a credit for amounts used to retire indebtedness incurred prior to January 1, 1934. On closing brief the petitioner limits to $10,000 the amount of the credit sought for retirement of indebtedness.
Section 355 of the Revenue Act of 1937, amending Title I-A of the Revenue Act of 1936, provides for the reduction of undistributed income subject to personal holding company surtax by :
(b) Amounts used or irrevocably set aside to pay or to retire indebtedness of any kind incurred prior to January 1, 1934, if such amounts are reasonable with reference to the size and terms of such indebtedness.
We think it is clear that the above quoted provision has no application to the payments in question. 'The cash and checks representing payment of the dividends can not conceivably be regarded as having been used or irrevocably set aside to pay or to retire any indebtedness of the company. The trustee received cash, and in any event the- company was not indebted to the trustee. E. S. St. Clair received $800 cash and a check for $5,200, which he cashed in January 1938. F. C. St. Clair received a check for $6,000, which was cashed in March 1938. L. P. St. Clair never actually received his check for $6,000 although it was available to him, and in December 1938 the check was canceled and his dividend account was credited with the amount thereof. Under these facts, it seems to us obvious that there was no payment of an indebtedness or a setting aside of funds for that purpose within the meaning of the statute. . Petitioner does not claim that the pertinent indebtedness was its liability to pay the dividends declared, but refers to other indebtednesses owing to the St. Clair brothers. We think this contention is without merit.
Year 1938.
With respect to 1938, respondent argues that no dividends paid credit can be allowed petitioner, because there was no payment of dividends by petitioner and, in fact, payment was prohibited by state court order. Petitioner argues that it is entitled to such credit, since dividends were declared in 1938, the validity of which is not questioned, and since such dividends were credited to the accounts of the three brothers and actually paid in cash to Cora through her trustee. Petitioner contends that it did everything possible toward payment of such dividends within the limits of the court order, that the stockholders reported and paid the tax on such dividends as income, and that, therefore, it should be allowed a dividends paid credit thereon.
The credit is claimed under section 27 of the Internal Revenue Code. Subsection (a) (1) provides that “dividends paid credit” means the sum of “basic surtax credit * * * computed as provided in subsection (b)”and (in subsection (a) (4)) “amounts used or irrevocably set aside to pay or to retire indebtedness.” Subsection (b) (1) defines basic surtax credit as “the dividends paid during the taxable year.”
Thus it is noticeable that amounts for retirement of “indebtedness'” might constitute dividends paid credit whether actually “used” or only irrevocably set aside for that purpose; whereas dividends, to be basis for credit, must be “paid.” The difference is significant.
Logic forbids us to regard the dividend declared here as paid, for it could not be paid, in the face of the restraining order, and the order was not violated; and for the same reason the stockholders (except Cora) can not be. considered as having received the dividend. There was xio moiiey “thoroughly subject to the demand and control of the shareholder” as in Valley Lumber Co. of Lodi, supra, or credit “without restriction as to withdrawal,” as in Atlantic Land Co., 43 B. T. A. 74. On the contrary, there was positive restriction and negation, by the court’s order, of the necessary payment, command, or control. In the absence here of both payment and of command or control by the stockholder, the dividends paid credit should be, and is, denied.
There was actual payment to the trustee for Cora of $6,000, the amount of the dividend to her declared on December 23, 1938, but the $6,000 had been paid monthly throughout 1938, the last payment being on December 8, 1938, therefore more than two weeks prior to the declaration of the dividend. Clearly, such a distribution fails to qualify as basis for dividends paid credit, in the light of section 27 (h) of the Internal Revenue Code,1 requiring that the distribution be pro rata with no preference to any share as compared with other shares of the same class, and with no preference to one class of stock over another. In Safety Convoy Co. v. Thomas, 139 Fed. (2d) 219, section 27 (g) of the Revenue Act of 1936, the same in effect as section 27 (h) of the Internal Revenue Code, was held to prohibit dividends paid credit for distributions not in proportion to the percentage of stock and not made to all shareholders on the same dates. The court said:
* * ⅜ It ⅛ the sense of the statute that a dividend must be paid in equal amount upon each share of stock in any given class, and must be paid at the same time, if the dividends-paid credit is to be made applicable.
To the same effect is Black Motor Co. v. Commissioner, 125 Fed. (2d) 977, wherein, during the taxable year, the stockholders received different percentages of a dividend declared.
Years 1939 and 1940.
The next question concerns dividends paid credit for 1939 and 1940. The pertinent facts relating appear to us to be as follows: Petitioner was a family holding corporation. One-fourth of its stock was held beneficially by Cora St. Clair, and the remaining three-fourths equally by her three brothers, who conducted its affairs. On December 22,1938, Cora brought suit against petitioner and her three brothers, asking, among other things, for a dissolution of petitioner and for an accounting. On the next day the directors of petitioner adopted resolutions providing for the winding up of petitioner’s affairs and its voluntary dissolution. On January 10, 1939, Cora instituted another action in the state court, in which she asked for court supervision of the winding up of petitioner’s affairs. This petition was granted and an order ivas entered to the effect that no distribution should be made of petitioner’s assets or property, .other than in the ordinary course of business, except by order of the court. Pending the hearing and decision of Cora’s action for an accounting there was, during the taxable years, no liquidation of petitioner’s assets or property incident to a winding up of its affairs, and no distribution was made or ordered by the court to petitioner’s stockholders representing, or purporting to represent, the proceeds of any such liquidation as a step in the winding up of the petitioner corporation. Petitioner had been enjoined in December 1938 from paying any dividends and, therefore, could not pay dividends in the sum of $24,000 which had been declared on the day when the injunction was served on it. In April 1939, pursuant to an order of the state court, the dividends declared in 1938 were paid. In order to avoid the heavy surtaxes imposed on the undistributed income of personal holding companies, there was obtained from the state court on December 27,1939, an order authorizing and directing the petitioner to pay to its stockholders dividends in amounts up to its net earnings for the year 1939; and the directors, estimating that petitioner’s net earnings for that year would be $23,000, declared a dividend in that amount, which was paid forthwith. Petitioner’s net income for 1939 proved to be $21,417.48. For the same" purpose, dividends totaling $26,000 were paid by petitioner to its stockholders in 1940, pursuant to orders of the state court authorizing and directing the payment of dividends out of petitioner’s earnings for 1940.1 Petitioner’s directors, in declaring such dividends, estimated that its net earnings for that year would be $26,000. Petitioner’s net income for 1940 proved to be $19,107.58. As to both 1939 and 1940 petitioner, on brief, claims a “dividends paid” credit in the amount of its earnings for those years. Its earned surplus was in excess of $150,000.
Petitioner was technically in the process of liquidating its affairs. However, there had been no actual liquidation of its assets during (he taxable years and no distributions of cash to its stockholders which represented the proceeds of any liquidation. During 1939 and 1940 petitioner was in a state of suspended animation, pending the determination of an action for accounting. During this period it received income. Since it was a personal holding company, a failure to distribute this income to its stockholders would have had serious tax results. Accordingly, and for the purpose of accomplishing exactly what the personal holding company provisions of the Federal taxing statutes contemplated, it purported to distribute this income by way of dividends. This it did pursuant to orders of the state court having supervision of its winding up, which' characterized them as dividends out of earnings. Any other dividend or distribution would have been in violation of the court’s injunction. Since petitioner was technically in liquidation, ,we shall assume, arguendo, that the so-called dividend distributions were distributions in liquidation. Therefore, the sections of the Internal Revenue Code applicable to the question before us are sections 27 (g) and 115 (c), which are set out in the margin.2 That question is, What part of the distributions made by petitioner in 1939 and 1940 is properly chargeable to its capital account, and what part is properly chargeable to the earnings and profits accumulated after February 28,1913?
In cases where a distribution to stockholders is made by a corporation in the actual process of liquidation, partly from capital liquidated and available for distribution and partly from earnings or profits, and there is no definite proof of what part of the distribution is properly chargeable to capital and what part is properly chargeable to earnings or profits, the distribution is allocable between capital and earnings or profits in the ratio that each bears to the total of the capital and earnings or profits of the corporation. Woodward Investment Co., 46 B. T. A. 648; Shellabarger Grain Products Co., 2 T. C. 75; aff'd., 146 Fed. (2d) 177. In the latter case we said:
* * * Since in tlie case of distributions in liquidation or partial liquidation the order thereof as between earnings or profits and capital is not fixed by the statute, we know of no better or more accurate way of determining what part of a distribution in partial liquidation is properly chargeable to capital and what part to earnings or profits than to consider the facts of the particular case and apply as best we can the rule of reason. In Woodward Investment Go., 46 B. T. A. 648, a distribution in partial liquidation of the corporation was made pro rata, on all of the outstanding stock without regard to the amount of earnings or profits or of capital available for distribution and without regard to the par or stated value of the stock. It was there concluded that the distribution was properly allocable between capital and earnings or profits in the ratio that each bore to the total of the capital and earnings or profits of the corporation. That case is directly in point and will be followed here * * *.
As to a similar method of allocation applicable in the absence of identifying.proof, see Estate of Howard H. McClintic, 47 B. T. A. 188, 200.
In Shellabarger Grain Products Co., supra, the corporation had effected a complete actual liquidation of its assets and business prior to the distribution in question, receiving from the sale of the assets an aggregate cash consideration of $262,464. Immediately thereafter tlie directors of the corporation took the following action:
The President stated to the Directors that it would be well to distribute as dividends an amount equal to the entire estimated earnings and profits of the Company for the current fiscal year in order that the Company be under no liability for undistributed profits tax. After discussion of the matter, on motion duly made and seconded it was unanimously,
Resolved, that a dividend of $35.00 a share be and the same is hereby declared upon the outstanding capital shares of the Company, payable immediately to shareholders of record at this date.
This dividend amounted to $67,550. Less than two months later the corporation made another distribution to its stockholders of $67,550 as a liquidating dividend and distribution. For the fiscal year in which the first distribution took place, the corporation reported a net income of $56,259. At the beginning of that year it had an operating deficit of $58,203. The corporation was in the process of voluntary dissolution, without court supervision. It is apparent that the amount of the first distribution had no relation to the amount of earnings and profits available for distribution. On the contrary, it is apparent that it was one of two equal distributions in liquidation made after the actual .liquidation in cash of all the assets and the entire business of the corporation, which was merely stated by the president (and erroneously) to be “an amount equal to the entire estimated earnings and profits of the Company for the current fiscal year.” In the absence of proper proof identifying the amount of the distribution in liquidation “properly chargeable to earnings and profits accumulated after February 28,1913,” we followed the method of allocation above described.
In the instant case we are of the opinion that the facts, which we have already related in detail, disclose, beyond reasonable doubt, that the distributions made by petitioner in 1939 and 1940 were properly chargeable to its earnings or profits to the extent of its stipulated net income for those years. It is only to this extent that petitioner now claims dividends paid credits oil account of the distributions made in 1939 and 1940.
In a consideration of the petitioner’s claim for a dividends paid credit for the year 1938 on account of its declaration of a dividend in that year, we commented on the lack of logic in regarding that dividend as paid in that year in view of the restraining order then in effect prohibiting payment. That restraining order was relaxed in the years 1939 and 1940 only to the extent of permitting the payment of dividends out of earnings. There were no receipts by petitioner during these years from the sale or conversion of its capital assets aside from inconsequential liquidating dividends received by it as stockholder of other corporations. Petitioner’s accumulated earnings and profits were in excess of $150,000. The amounts of the dividends paid in 1939 and 1940 were approximately equivalent to its gross income (not including loans or liquidating dividends) for those years, and only slightly in excess of its net income calculated for Federal tax purposes. Under these circumstances, we are of the opinion that there would be a similar lack of logic in considering the distributions made in those years, to the extent that they were equivalent to petitioner’s net income, as being properly chargeable to capital.
Regardless of the form of words used in the court orders authorizing the payment of the dividends in question, and the corporate resolution declaring them, it is evident from the entire record before us that petitioner, its directors, and the court having supervision over its winding up intended those distributions to be only such distributions as would conform with the economic and fiscal policies encouraged by the personal holding company provision of the Federal revenue laws and would distribute its earnings to its stockholders during the long period of time between petitioner’s decision to dissolve and its actual liquidation. It would be unfortunate if we were forced to a conclusion that petitioner, nevertheless, was subject to the penalizing provisions of those statutes. Such a conclusion is not required by the Internal Revenue Code or by the decided cases. To the contrary, we conclude that petitioner is correct in claiming dividends paid credits for 1939 and 1940 in the amount of its earnings for those years.
We have found as a fact that $1,572 received by the petitioner in 1938 as dividends from Transamerica Corporation constituted a return of capital. We have further found that $124.06 of the $1,000 in dividends received by petitioner in 1938 from the Honolulu Oil Corporation constituted a return of capital. These findings are based on the stipulation of facts. Respondent has offered no evidence on this question and has made no argument thereon on brief. We hold that respondent erred in adding such amounts of returned capital to petitioner’s 1938 income.
Reviewed by the Court.
Decisions will ~be entered under Rule 50.
SEC. 27. CORPORATION DIVIDENDS PAID CREDIT.
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(h) Preferential Dividends. — The amount of any distribution (although each portion thereof is received by a shareholder as a taxable dividend), not made in connection with a consent distribution (as defined in section 28 (a) (4)), shall not be considered as dividends paid for the purpose of computing the basic surtax credit unless such distribution is pro rata, with no preference to any share of stock as compared with other shares of the same class, and with no preference to one class of stock as compared with another class except to the extent that the former is entitled (without reference to waivers of their rights by shareholders) to such preference.
One of the four orders entered in 1940 authorized and directed the payment of dividend “out of * * * income on hand.”
SEC. 27. CORPORATION DIVIDENDS PAID CREDIT.
(g) Distributions in Liquidation. — In the case of amounts distributed in liquidation the part of such distribution which is properly chargeable to the earnings or profits accumulated after February 28,1913, shall, for the purposes of computing the basic surtax credit under this section, be treated as a taxable dividend paid.
SEC. 115. distributions BY CORPORATIONS.
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(c) Distributions in Liquidation. — Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock, and amounts distributed in partial liquidation of a corporation shall be treated as in part or full payment in exchange for the stock. * * * In the case of amounts distributed (whether before January 1, 1939, or on or after such date) in partial liquidation (other than a distribution to which the provisions of subsection (h) of this section are applicable) are part of such distribution which is properly chargeable to capital account shall not be considered a distribution of earnings or profits. * » *