concurring: While I agree with the result reached in the instant proceeding, I can not agree with that portion of the opinion which holds that the principle laid down by the Supreme Court in Hatch v. Dana, 101 U. S. 205, disposes of the measure of the liability of a transferee of the assets of a taxpayer. Whether that decision controls in determining the liability of transferees becomes important in other cases. If it is controlling, it follows that each transferee is liable to pay the whole tax to the extent of the value of the assets he may receive from the taxpayer, regardless of the number or situation of other like transferees. This would appear to be so whether or not the proceeding was governed by section 602 of the Revenue Act of 1928.
*1180Section 280 of the Revenue Act of 1926 creates no new liability. It lays down only a new method of enforcing existing liabilities at law or in equity of a transferee of assets of a taxpayer. Our inquiry, then, is to determine what that liability is. It appears to be conceded that in the present instance the liability is one which is not cognizable at law but which arises in equity. A corporation distributes its assets to its stockholders without making provision for the payment of certain taxes which are unknown at the time. The stockholders take these assets without any knowledge of such liability. No fraud is involved. To what extent will equity permit recovery of the liability from one of such stockholders?
Justice Story had occasion to discuss this question in Wood v. Dummer, Fed. Case 11944. There he reached the conclusion that, in the absence of any showing that a pro rata part could not be collected from those stockholders who had not been joined in the action, equity would require those stockholders who were before the court to pay only their pro rata part. This case has been cited many times with approval by the Supreme Court and many other courts. I believe that it lays down the rule to be applied in cases arising under section 280. Each transferee is liable only for his pro rata part, if the balance is collectible from other transferees. No one of several transferees is liable for the full amount unless for some reason the liability of the others can not be enforced. This is not in conflict with the decision in Hatch v. Dana, supra, for there the court was enforcing a legal liability and not one which arises only through the intervention of a court of equity. The distinction is pointed out by the court in Hatch v. Dana in the following passage:
The ease of Wood v. Dummer, upon which the appellants largely rely, was not an attempt to reach unpaid stock subscriptions. It was sought to follow the property of a corporation paid over to its shareholders before its debts were paid.
The opinion of the court in United States v. Armstrong, 26 Fed. (2d) 227, develops the same principles and discusses the cases at greater length than seems necessary in this concurring opinion.
The principles indicated above to be those which I believe should be applied, may not be laid down as invariable. They state what I believe to be the general rule which would be applied by a court of equity, subject to such modification as may be required to do equity in the circumstances of any particular case. To adopt the rule of legal liability followed in Hatch v. Dana as a principle which governs in determining the liability in equity of a transferee of assets is to disregard the functions of equity. It is inconsistent with equitable principles that an avoidable inequity should be done one person to do equity to another.
*1181While I do not agree with the basis on which the opinion rests, I do agree with the result since this proceeding was heard before section 602 of the Revenue Act of 1928 became effective. At the time of the hearing the burden was upon the petitioner to show that the determination of the Commissioner was not correct. The presumption was that it was correct. This was not met by any proof which established that the facts wrere such that a court of equity would refuse to permit the entire liability to be asserted against the Grand Rapids National Bank. Because the burden was on petitioner and was not met, I concur in the decision reached.