dissenting: I am convinced that the timber properties acquired by the petitioner had a value considerably in excess of the $1,750,000 paid therefor. The respondent has determined the value to be $2,258,657.08, as of March 1, 1913, and the purchase was made in 1912. His determination in this respect is presumptively correct. Regardless of whether the petitioner has proven, as of the date of the purchase, a value in excess of this amount, I feel that the evidence requires a finding of at least that value on the date of purchase. The remainder of this opinion proceeds upon the assumption that the excess value amounting to $508,657.08 has been established.
*307Invested capital is a statutory creation, the nature of which is at times so confusing that a Senator of the United States recently, while speaking to the Senate, compared the statute to “Alice’s Adventures in Wonderland.” The true intent and meaning of the statute can not always be determined by a rigid adherence to the literal wording thereof and recourse must be had to other sources from which the true intent of Congress may be ascertained. The solution of this problem must come from an application of the statute in its intended meaning to the facts which we have found. The applicable provisions of the statute are quoted in the prevailing opinion.
We are unable to find as a fact that the petitioner, in consideration of the conveyance to it of the timber properties, gave the Eiver Land & Lumber Co. any of its stock or any right to subscribe thereto. So far as the record discloses, the only contract agreement or negotiation between the two corporations related to the sale of the timber for a consideration of $1,750,000. The old company received no stock in the new. It is easy to say that the various interested parties indulged in “ short-cuts ” and that the transaction is the same as if it had been carried out some other way. For example, Pack, as the sole stockholder, might have caused it to distribute to him, as a liquidation in kind, the timber properties which the petitioner acquired from the old corporation, or the consideration moving from the new to the old corporation might have been $1,750,000 plus the right to subscribe for 45 per cent of the stock, but the plain fact is that the new corporation bought the timber properties for cash from the old and, although the transaction was related to agreements between the stockholders of the new and the old corporations, it was a plain sale for cash.
But it seems to me that a conclusion that the timber properties were acquired for cash does not dispose of the question. Several things are apparent. It is clear that the value of the properties acquired exceeded their cost by at least $508,657.08. Also, it is apparent that the transaction was not carried out at arms’ length. Further, and of much more importance, it is apparent that Pack, in addition to the amount paid for stock, has invested in and risked in the petitioner’s business the sum of $508,657.08. A complete failure of the company would result in a loss by him of that amount in addition to his investment in the stock. This amount is his contribution to the capital of the petitioner corporation. Whether or not it may be said that he “ paid in ” this amount, it is clear that he caused it to be paid in to the petitioner. The amount is there; it is there as the result of Pack’s control over it; the actual cash value of the petitioner’s assets is increased by $508,657.08 as the result of his action, *308and the assets of another corporation, of which he was the sole stockholder, are reduced by that amount.
The statute relating to invested capital and its computation is builded upon the thought of capital invested. It was intended that the excess-profits tax be measured in the light of the cash and/or value of assets which the corporate stockholders had risked in the business. The statute uses the phrase “ bona fide paid in ” for stock or shares in 326 (a) (1) and (2), and provides that a paid-in surplus may result. In (3) of paragraph (a) of the same section, it provides for the inclusion of “ paid-in ” surplus, without mention of the source from which or the method by which it was derived.
The question of whether, within the literal wording of section 326, this petitioner is entitled to have this amount included in its paid-in surplus, is fairly debatable, but, clearly, when the purpose and underlying thought of the statute are considered, the petitioner is entitled to include the amount as paid-in surplus.