dissenting: The record of this action shows that the transaction found by the Board to be an exchange of 5,534 shares of the common stock of the Eastman Kodak Co. for Federal, State, municipal, and railway bonds having a fair market value of $3,666,275 was of this character: “In addition to the sale for cash of 700 shares Eastman Kodak common stock as set forth in Schedule D herein, the estate disposed of by exchange, during the month of April', 1922, 5,534 shares of the same stock at a stated value of $662.50, receiving-in exchange therefor, together with a cash payment on the part of the estate of $1,911.56 bonds as shown by the attached schedule at the values therein stated.” (Beturn of Estate introduced as Exhibit 1.) The full exhibit shows that the estate acquired the bonds of the above character of a value of $3,668,186.56, paying'therefor $1,911.56 cash and 5,534 shares Eastman Kodak Co. common stock at a price of $662.50 per share.
How did this transaction differ from a “ sale ” of the shares and a “ purchase ” of the bonds ? I assume that if it had been denominated a “ sale ” and not an “ exchange ” there would be no question but that the profit realized therefrom in the amount of $1,175,975 would be held to be taxable gain. “A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent.” Iowa v. McFarland, 110 U. S. 471. This transaction meets all the requirements of the definition of a sale. As was stated by the court in Commonwealth v. Clark, 14 Gray (Mass.) 372, the distinction between a sale and exchange of property is rather one of shadow than of substance. In both cases the title to property is absolutely transferred, and the same rules of law are applicable to the transaction, whether the consideration of the contract is money or by way of barter. But in this case the consideration was in terms of money. The shares of stock were disposed of at a price of $662.50 per share and the bonds were acquired at specified prices and the difference between the total price of the bonds and the total agreed price of the stocks was settled by a money consideration. The mere desig*409nation of the transaction as an exchange does not change its essential character.
Even if the transaction may be regarded as an “ exchange,” I dissent from the proposition that the words “ like kind ” have no application to the situation. This holding is directly contrary to the Commissioner’s regulations, article 1566 of B-egulations 62. If I understand the basis of the opinion of the Board, it is that the shares of stock could have been exchanged for any class of property such as real estate, promissory notes, or even money without incurring liability to tax, provided the property received in exchange were held for the purposes of the trust. It appears to me that the words “ like kind ” must have some force in the statute. They can not be deleted in its interpretation. But in what case would they have application if not in the instant,proceeding ?
An inspection of the statute shows that it refers to two classes of property:
(1) That held for investment-, and
(2) That held for productive use in trade or business.
It appears to me that the words of the statute, “ like .kind or use,” refer to these two classes of property and that property held for investment must be of a “ like kind,” and that where there is an exchange of property for productive use in business for other property the property received in exchange must be likewise held for productive use, and that the word “ use ” has particular application to the latter kind of property. This construction gives force to all the words of the statute. The Board opinion holds that all that is necessary is that the property received by the petitioners in exchange for their shares of stock must be held for investment; that where it is hold for investment the same “ use ” of the property is made. It appears to me, however, that the property held for investment is not used in the ordinary sense of the term.
If there is any doubt upon the construction of this portion of the statute it should be resolved against the taxpayer and not in his favor, for provisions tending to exemption from tax are strictly construed.
It is further to be observed that regulations of an officer charged with the administration of a taxing statute are entitled to the greatest consideration and are not to be lightly disregarded by the courts. In cases of ambiguity in a statute, contemporaneous construction by a department charged with its enforcement, long followed in practice, is generally held to be controlling. Schell v. Fauche, 138 U. S. 562. Under the regulations of the Commissioner shares of stock of one corporation are not property of a “ like kind ” with bonds of a State or of another corporation. The Board so held in Margaret M. Edson, 11 B. T. A. 621. I see no reason for reversing that stand.