dissenting: On the question of dividends paid credit for 1939 and 1940, I must dissent. The majority opinion, though agreeing that “technically” the petitioner was in process of liquidating its affairs, nevertheless comes to the view that the dividends here involved were to be charged entirely to earnings and profits and, therefore, dividends paid credit should be allowed. The majority opinion, citing Shellabarger Grain Products Co., 2 T. C. 75; aff'd., 146 Fed. (2d) 177, agrees that if there is no definite proof of what part of distribution is properly chargeable to capital and what part is properly chargeable to earnings or profits, the distribution is allocable, yet holds that here there was proof, so that no part was allocable to capital. In short, it permits proof of earnings and profits to remove a liquidating corporation from that category, disregards altogether section 115 (c), and treats a liquidating corporation the same as any other.
Since something seems to be made of the idea that the restraining order restrained distribution of assets or property other than in the ordinary course of business, except by order of the court, I gather that the majority thought is that in the ordinary course, not liquidating, the corporation could distribute the dividends here involved, and get dividends paid credit. In the first place, if these dividends had been in ordinary course, and so not by way of liquidation, then, on the majority’s logic, no orders would have been necessary. But orders were asked for and issued, indicating that the court and the parties did not consider the distributions in the ordinary course of business. Moreover, more appears made of the restraining order than the facts justify; for the restraining order, in using the expression as to acts in ordinary course of business, referred specifically to, and the language was, “From altering, removing, disposing of, and destroying any of the books, records, books of account, property or assets [of St. Clair Estate Co. and many others] or any part of said records or property, excepting in the general and ordinary course of business * * *” (with nothing said about dividends or distributions) ; whereas the succeeding paragraph, dealing with dividends-enjoins them “until an accounting is had herein.” I suggest, therefore, that no weight can be accorded any thought that there was no restraint of ordinary dividends in ordinary course of business.
Next, I must strongly disagree with the concept that here there was not, more than “technically,” liquidation. Not only had the directorship voted and embarked upon dissolution and liquidation, but that was the basis of the jurisdiction which the court exercised in authorizing the dividends. It is stipulated that Cora M. St. Clair, et al., filed an action in the Superior Court on January 10,1939, “for Court supervision of the winding up of the affairs of petitioner, as set forth in its resolution of December 23,1938, as provided for in the California Civil Code, Section 403.” The petition also recites that it is “made and filed pursuant to the provisions of Section 403 of the California Civil Code.”1
But section 403 reads in material part:
If a corporation is in the process of voluntary winding up, the superior court * * * Upon the petition of the corporation [or holders of a certain percentage of stock] * * * shall have power to order and adjudge as to any or all matters in and for the winding up of the affairs of the corporation including : * * *
How, then, may it be said that this corporation was not in fact in dissolution and that distributions were not an integral part of liquidation % Unless a liquidating corporation can make ordinary distributions from earnings, in my view, the distributions here must be allocated between capital and earnings.
We have here a distribution in partial liquidation. Section 115 (c) of the Internal Revenue Code provides on this point:
* * ⅜ arui amounts distributed in partial liquidation of a corporation shall be treated as in part or full payment in exchange for the stock. * * * [Then follows the provision for determination of gain or loss to the distributee.] In the case of amounts distributed * * * in partial liquidation * * * the part of such distribution which is properly chargeable to capital account shall not be considered a distribution of earnings or profits. * * *2
The majority view holds, in effect, that the entire distribution (to the extent of current earnings), though it is in partial liquidation, should be considered “properly chargeable to the earnings or profits.” In my view, the contention squarely contravenes the statute. This being a distribution in partial liquidation, it is treated as in either “part or full” payment for the stock being liquidated — and here it was paid on all of the stock alike. It can not, therefore, escape being in fart chargeable to capital account. Though of course it could all be allocable to capital, where definite stock was completely liquidated, as in Foster v. United States, 303 U. S. 118, and Fowler Brothers & Cox, Inc., 47 B. T. A. 103; affd., 138 Fed. (2d) 774, when it is not so chargeable completely to capital stock, it still remains “in part * * * payment in exchange for the stock,” under the statute, therefore partly chargeable to capital account. Otherwise, it is not treated as the statute requires, as in part payment in exchange for the stock.
To permit a corporation to designate a distribution as altogether from earnings and profits would be to say that it was not in liquidation and was paying an ordinary dividend as a going concern. The state court’s order herein could not indirectly have more effect than the corporation’s designation, for it could not redefine liquidating distribution. Its orders were, in any event, pursuant to stipulation of litigating parties, so by consent and of no effect as judgments. Freuler v. Helvering, 291 U. S. 35.
We considered the problem of what was properly chargeable to earnings in the case of Shellabarger Grain Products Co., supra. In that case the directors’ resolution, passed August 10, 1938, read as follows:
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,
Besolved, 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.
On August 11,1938, distribution was accordingly made in the amount of $67,550. The income as reported was $56,259; as determined, $65,955. All of the year’s earnings or profits were realized prior to the date of the distribution. We held that the distribution was in partial liquidation and that, above the amount of a deficit existing at the beginning of the year, the petitioner had earnings and profits available for distribution and was entitled to dividends paid credit under section 27 (f), to the extent the distribution was properly chargeable to earnings and profits, and we said, in part:
That the distribution of August 11, 1938, was a distribution in partial liquidation, as defined by section 115 (i), supra, is definitely shown by the facts. It follows therefore that the character of the distribution must be determined under section 115 (c), supra, and not by section 115 (a) and (b), supra, under which the character of distributions 6y continuing or going corporations are to be determined. * * *
* * * Unlike subsections (a) and (b) of section 115, supra, which govern ■distributions by corporations other than distributions in liquidation or partial liquidation and require that such distributions be regarded as having been made from earnings or profits to the extent thereof and from most recently accumulated earnings or profits, subsection (c) prescribes no order as between earnings or profits and capital in so far as distributions in liquidation or partial liquidation are concerned, stating merely that the part of such distributions properly chargeable to capital account shall not be considered a distribution of earnings or profits. * * * [Italics supplied.]
The majority opinion appears to ascribe our conclusion in the Shella-barger case to absence of proper proof identifying the amount of the distribution in liquidation. But the proof there was essentially the same as here — the statement of the officers and the condition of the books. Though the majority says the president in the Shellabarger case was incorrect in calling the distribution equal to the estimated earnings, it is clear that he was approximately correct, and we did not eliminate from proration the actual earnings shown, in our conclusion there, as would have been necessary under the majority view expressed here, but prorated the entire distribution. It can not be soundly said that our opinion there rested upon indecision as to amount of earnings. We knew that there were earnings in almost, if not quite, the entire amount of the distribution — yet prorated it between earnings and capital, as in Woodward Investment Co., 46 B. T. A. 648. Plainly, we did so because we recognized a difference between a “continuing or going corporation” and a liquidating corporation.
The court orders here, limiting (in part) distributions to current earnings, limit them no more than the fact in the Shellabarger case that we were considering only a.portion of current earnings. Yet, we there applied the allocation principle. The current earnings were earmarked for distribution even more definitely in the Shellabarger case than here, but such earmarking was not there approved. The statute says “properly chargeable to the earnings or profits,” not “charged” thereto. Neither parties nor court can change it, or charge capital to earnings.
The theory of allocation, set forth in the Shellabarger and Woodward Investment cases, supra, is in line with and borne out by allocation approved in Senior Investment Corporation, 2 T. C. 124, where, in case of passage of a portion of assets between corporations after a tax-free reorganization, we held it proper to allocate earnings and profits in proportion to the assets transferred and assests retained; also by the allocation in Stella K. Mandel, 5 T. C. 684. Therein there were tax-free reorganizations, and question as to the amounts available for distribution by the' transferees. It was held that earned surplus acquired after March 1, 1913, followed assets, in proportion thereto, into the hands of transferee corporations. Moreover, we cited and followed Estate of Howard H. McClintic, 47 B. T. A. 188, to the effect that “An asset does not ordinarily partake of a character permitting its classification as between capital, on the one hand, and surplus, on the other, and it is not the practice to maintain books of account or balance sheets in such a way that a division or allocation could be made by inspection of the asset or of its accounting treatment.” The McClintio case goes on to say: “For all that will generally appear, * * * the capital' assets as a whole will incorporate the combined attributes of stated capital and paid-in or accumulated surplus. In the absence of other means of allocation it is difficult to avoid treating each asset similarly so that it will be considered as including its proportionate share of the over-all division between capital and surplus.” By the same logic a designation can not properly be made of a distribution in liquidation, as being not from capital, but from earnings alone, under the facts in this case, where the distribution is made ratably to the holders of all outstanding stock. Such a distribution “will incorporate the combined attributes of stated capital and paid-in or accumulated surplus,” requiring the allocation applied in the Shellabarger case.
In August Horrmann, 34 B. T. A. 1178, we concluded that the redemption of certain preferred stock was a partial liquidation, and that it therefore became necessary to determine what part of the liquidation is “properly chargeable against capital account” within the statute. In that respect, we said:
* * * Therefore, it would be improper to charge the whole redemption against capital account; such procedure here would wipe out the entire capital account, leaving no capital to represent the common stock still outstanding. The petitioner argues that the whole redemption is properly chargeable against surplus in that the issuance of the stock served only to earmark a part of the surplus. This seems to us equally improper. We are unwilling to disregard the interest which shares of stock represent in the assets of the corporation and to say that they serve only to earmark a portion of surplus. Also, we are unwilling to attempt to earmark shares of stock and say that the redemption of the original shares is entirely chargeable against capital account (to the extent of the amount originally paid in) while the redemption of dividend shares is chargeable in no part against capital. We think that a proportional part of the paid-in capital must be considered as standing behind each of the shares outstanding at any particular time, so that on redemption of any of them a certain part of the redemption is properly 'chargeable against capital account. * ’ * *
We followed the Horrmarm case in F. & R. Lazarus & Co., 1 T. C. 292, 299, and quoted most of the language hereinabove quoted from that case. There, we considered a distribution in liquidation, and we disagreed with the contention that the retirement of the stock was entirely chargeable against surplus, allowing dividends paid credit for the amount in excess of paid-in capital standing behind the stock. That amount of capital we found to be the proportion which paid-in capital had to entire outstanding capital.
Nordberg Mfg. Co. v. Kuhl, 69 Fed. Supp. 750, by the District Court for the Eastern District of Wisconsin, throws some light on this question. The company, being unable to pay its preferred dividends from 1931 to 1937, on February 3, 1937, entered into an agreement with the preferred stockholders that the preferred stock should be deposited with an escrow holder, that payments should be made by dividends and additional amounts, that when these amounted to $1,000,000 the stock should belong to the company, but that in case of default by the petitioner the payments made should be applied, so far as necessary, to satisfy accrued dividends, and any surplus should be applied as a liquidating dividend upon the stock. During 1937 the company paid $109,000 to the escrow agent and contended that it was entitled to dividends paid credit. The court quoted the language of section 115 (c) and upheld the Commissioner’s determination that there was partial liquidation and that no part was properly chargeable to earnings or profits. It denied the credit for dividends paid credit. It did not, of course, allocate, or have any occasion to allocate, between amounts chargeable to capital and chargeable to earnings and profits, since the dividends were directly in complete liquidation of a certain part of the stock and, therefore, to be treated “as in full payment in exchange for the stock,” under section 115 (e). The court pointed out that the credit is special in the nature of a deduction and an applicant therefor must show exact compliance with the terms of the statute, that is, section 27, which grants the credit. The court specifically said that: “I conclude that, in spite of the designation of the payments made in 1937 as dividends, the agreement of February 3, 1937, discloses an intent on the part of the plaintiff to liquidate its outstanding preferred stock * * The court went on to hold that “the payments in 1937 were in partial liquidation of the preferred stock. It follows that a dividends paid credit is not properly allowable * *
Indeed, though above I have assumed that in this proceeding the court orders limited distribution to those from current earnings, which is petitioner’s argument for allowance of the credit, in fact only three of the orders, those in June and December 1940, provided for payment out of current income. The order of October 3,1940, merely provided distribution from “income on hand,” and that of December 26, 1939, simply authorized distribution “in amounts up to the net earnings of said corporation for the year 1939.” Only $13,000 was then available for dividends and $10,000 was borrowed to make the distribution of $23,000. The corporate resolutions passed under the orders, and declaring the distributions, did not limit the dividends declared to current income, though preliminary recitations indicated intent to escape tax on undue accumulation of current income.
Thus it becomes apparent that in considerable part the distributions here involved are in fact not shown to have been from current earnings, and so within petitioner’s theory. Certainly, those in 1939 were merely limited in amount by the earnings of that year. When we consider the fact that the Superior Court had, on April 20, 1939, ordered that the petitioner’s affairs be wound up under the supervision of the court, and that no distribution of assets or property (other than in the ordinary course of business) be made except by order of court, 'and consider the charges made by Cora as basis for the suits filed, it seems apparent that the superior court, in approving the stipulations of the counsel in the cases that the distributions be made, was clearly, in the order made on December 26, 1939, to distribute “in amounts up to the net earnings” for 1939, merely setting a limit on amount, and not in fact designating the distributions as out of 1939 income. The company in fact had no $23,000 to distribute out of 1939 earnings, having to borrow $10,000 to make the distribution.. The superior court may be presumed to have known that a distribution, in the liquidation it was supervising, was no ordinary dividend, Hellmich v. Hellman, 276 U. S. 233, that distributions are to be regarded as in payment in exchange for the capital stock, and that, after the initiation of dissolution and liquidation, the entire corporate assets became a fund for payment of creditors and stockholders. Therefore, at least as to the distribution in 1939 and the $4,000 distribution “from income on hand” in October 1940, there is no room for finding or for reasonable inference that the court limited a dividend to one derived from current earnings; and, considering the position of the court in the liquidation matter, I think that the other three orders should also be considered as merely designating or limiting the amounts of payment to the amount of 1940 earnings, rather than as designating the distributions as in fact made out of 1940 earnings, so as to enable the petitioner to rely on the orders as proof of that fact. The court had on December 22,1938, restrained payment of dividends until an accounting should be had. Such accounting was not filed until January 30, 1941. Though the orders allowing distribution, above referred to, were modifications of the general restraining order, I think they were permission to make mere advancements in the process of liquidation, and subject to final accounting, and they do not demonstrate distributions of income of a particular year. Stockholders in a dissolved corporation have no rights except after all debts have been satisfied, and their remedy is then in equity. Fletcher Cyclopedia of Corporations, vol. 16, § 8224. The administration of the corporation by the superior court was consonant with such general law. It did not, in my view, indicate any determination that the liquidating distributions made were identified as from a particular year’s earnings, or any determination that the corporation had such current earnings, or form a basis for a conclusion here that they were properly chargeable to earnings and profits.
Finding no real distinction between this case and the Shellafoarger case, which was affirmed on this point,3 and no reason to deviate from the rule announced therein, and affirmed, I would adhere thereto and hold that dividends paid credit for 1939 and 1940 is limited to the ratio of the distributions which earnings and profits bore to the total of capital and earnings and profits. To hold that a liquidating corporation is the same as another, a.s to dividends paid credits, is to me in the teeth of the statutes, both in text and general objectives. Section 115 (c) says that amounts distributed in partial liquidation must be treated, at least in part, as payment for the stock. How can these words be ignored, as does the majority? I respectfully dissent.
Turner, Black, and Harron, JJ.. agree with this dissent.The petition also alleges : “Said corporation is in process of winding up as evidenced by the fact that on the 28th day of December 1938, there was filed in the office of the California Secretary of State a certificate stating that said corporation has started to wind up' its affairs and voluntarily dissolve * * A copy of the certificate certified by the Secretary of State, with the corporate officers’ certificate of election to wind up and voluntarily dissolve (filed in the office of the Secretary of State) and written consent of shareholders to voluntary dissolution, were attached to the petition.
The latter sentence precludes consideration of any part chargeable to capital account as a distribution out of earnings or profits, or most recently accumulated earnings and profits, within the language of section 115 (b). Such part, says section 115 (e), is not earnings and profits. Moreover, that a distribution in liquidation is not within the purview of section 115 (b) is laid down in Foster v. United States, 303 U. S. 118; Fowler Brothers & Cox, Inc., 47 B. T. A. 103 (110); aff'd., 138 Fed. (2d) 774. From 1924 to 1936, section 115 (c) and its predecessor section 201 (c) expressly stated that, of amounts distributed in partial liquidation, the part properly chargeable to capital account should not be considered distribution of earnings or profits, “within the meaning of subdivision (b) of this section for the purpose of determining the taxability of subsequent distributions by the corporation.” The quoted language was omitted in the 1936 Act and thereafter.
The Circuit Court said, in part:
“* * * The Tax Court determined that the amount distributed was properly chargeable to capital and accumulated earnings, respectively, in the ratio that each bore to the total of capital and earnings available for distribution. We think this determination was consistent with the requirements of 27 (f) and 115 (c) : that is, it was a correct determination of the part “properly chargeable to the earnings or profits” under the former, and, the part “properly chargeable to capital” under the latter, * * *.”