dissenting: I am unable to concur in the decision reached in the foregoing opinion in respect to the tax liability of the petitioner corporation for the year 1921, and can concur only in the result of the decision with respect to the tax liability of the petitioner, Burns Smith, for the year 1920. My objection goes to the conclusion as well as the fundamental reasoning upon which it is based.
The construction placed upon the statute in the prevailing opinion invokes the penalty upon a corporation which permits an accumulation of earnings, however small, and without regard to its business necessities. If there is any accumulation, importance then attaches only to the matter of intent or purpose, which, the majority holds, may be determined from any other relevant circumstance, wholly aside from and independent of the question as to the reasonableness of the accumulation for business needs.
This view, in my opinion, is unsound. The right of a corporation to accumulate from its earnings a surplus- reasonably commensurate with its business needs is generally recognized not only in the business world, but by the courts. The prescribed intent should not, therefore, be imputed to a corporation engaged in doing that which it has a legitimate and lawful right to do, namely, to accumulate a reasonable surplus. The question whether there is a purpose to prevent the imposition of the surtax upon the stockholders becomes of importance only when the accumulated gains and profits exceed the reasonable needs of the business. To hold otherwise would be to penalize a corporation engaged in the accumulation of a reasonable surplus, if we should conclude from some fact, other than reasonableness of the accumulation, that in addition to the purpose of providing for its business necessities, there was also the purpose to evade the surtax.
Again, it is obvious that to whatever extent a corporation permits its gains and profits to accumulate, even though it be only one dollar, just to that extent the corporation is in fact availed of for the purpose of preventing the imposition of the surtax upon its stockholders, since that result inevitably follows. Under the above construction of the statute it might then be argued that any accumulation, whether large or small, reasonable or unreasonable, would establish the prohibited intent and bring the corporation within the provisions of section 220. This leads to an unjust and absurd result. Clearly, I think Congress never intended, by the enactment of section 220, to impede corporations in the performance of their legitimate and necessary functions, nor to impose a penalty, in the form of a burdensome tax, in the case of a corporation engaged in accumulating not more than a reasonable surplus. Escaping the surtax is *834a necessary incident to the accumulation of a reasonable surplus, which the statute was not designed to prevent. However, when the accumulation exceeds the reasonable requirements of the corporate business, then a wholly different situation is presented.
It is clear that, if a corporation is formed for the purpose of evading the surtaxes upon its stockholders, but does not actually do so by accumulating a surplus of any kind, no penalty can be imposed. There is nothing upon which it can be based, yet a literal construction of the section seems to include such a case and the prevailing opinion holds that the section should be literally construed. But if a corporation is formed for the prohibited purpose and accumulates a surplus, however small, it comes within the section of the statute. In such a case the corporation is not only formed but availed of for the prohibited purpose.
In this case it is conceded that the corporation was not formed for the prohibited purpose, but for legitimate business reasons. Nevertheless, the majority-finds that it was availed of for the purpose of evading the surtaxes upon the stockholders, not by reference to or on account of any unreasonable accumulation of profits, but upon another ground.
While the statute does not specifically provide that other evidence as to the purpose to escape the tax than accumulation beyond reasonable business needs might not be considered, in my opinion, the whole history of the legislation, the regulations of the Commissioner, the administration of the law, and the reports of the committees of Congress in charge of the legislation, lead to the conclusion that unless there has been an accumulation of profits beyond the reasonable needs of the business, the corporation does not come within the penal provisions of the statute. In case of ambiguity in the language used, such sources may properly be resorted to for interpretation of the Congressional intent.
Treasury Decision 2135 under the 1913 Act provided:
Sub. 2 of paragraph A. Income Tax Law Oct. 3, 1913, imposes no duty on the taxpayer to ascertain his distributive interest in the undivided profits of corporations for the purpose of making return of the amount, in addition to (he amount of dividends declared on his stock, unless the Secretary of the Treasury has certified that in his opinion such accumulation is unreasonable for the needs of the business.
While the 1913, 1916, and 1917 Acts used the expression “ formed or fraudulently availed of for the purpose * * and the 1918 Act is the first act where the expression “ fraudulently ” was omitted, the purpose of the various acts was the same. Under all the acts the regulations and rulings of the Commissioner required an unreasonable accumulation to bring a corporation under the section. A certification was required that the accumulation of profits *835was unreasonable. The same interpretation in this respect has been given the 1918 and the 1921 Acts.
The Senate Committee on Finance, in its report on the revenue bill of 1918, with respect to section 220, said:
It was believed that the incentive to withhold from distribution as dividends earnings not required for legitimate business uses exists chiefly in the cast' of certain corporations the stock of which is very closely held, * * *. The Committee * * * has provided that in the case of any corporation formed or availed of for the purpose of permitting gains or profits to accumulate instead of being divided the income shall be taxed to the stockholders in the same manner that partnership earnings are taxed to partners (Italics supplied.)
At the time of the enactment of section 220, the evil sought to be remedied was the evasion of taxation by a corporation withholding from distribution as dividends “ earnings not required for legitimate business uses,” and it was undoubtedly in such a situation that Congress intended the provisions of the section to apply.
Upon the enactment of the Revenue Act of 1918, the Commissioner of Internal Revenue promulgated Regulations 45 thereunder, in which it was provided:
Art. 352. Purpose to escape surtax. — The application of section 220 of the statute depends upon the two elements of (a) purpose to escape the surtax and (6) unreasonable accumulation of gains and profits. * * *
Art. 353. Unreasonable accumulation of profits. — An accumulation of gains and profits is unreasonable if it is not required for the purpose of the business, considering all the circumstances of the case. * * ⅛
While the regulations under the 1921 Act do not use this language, there is nothing therein inconsistent with this interpretation, and the rulings of the Commissioner under that act are substantially in accord with the rulings and regulations under the 1918 Act and previous acts as to the accumulation of surplus. In the case of a corporation engaged in business as distinguished from a mere holding company, the question has been whether the accumulation of profits was unreasonable for the business needs. See Advisory Board Memo. 2, 1 C. B. 181; O. D. 106, 1 C. B. 181; S. M. 1117, F. C. B. 182; O. D. 838, 4 C. B. 226.
After this long period of executive interpretation the Congress in subsequent revenue acts has used substantially the same language to accomplish the same purpose, which would indicate a Congressional approval thereof. This is shown more clearly by the language of the Committee reports on the various revenue bills.
In the 1921 Act, the tax is imposed directly upon the corporation instead of the stockholders. With this exception and a change in the rate of tax from 25 per cent to 50 per cent, the provisions of section 220 have been continued in all revenue acts since 1918. In the 1928 Act it appears as section 104.
*836In that connection, the Staff of the Joint Committee on Internal •Revenue Taxation stated in its report:
The Congress has recognized since 1913 that corporations could be formed, or availed of, for the purpose of evading surtax on the stockholders of such corporations. * * *
* ***** *
The two greatest difficulties facing the administration in applying the present provision consist, first, in proving the “purpose” to evade, and, second, in proving what constitutes “ the reasonable needs of the business.”
A provision is suggested which will tend to give some incentive to corporations to make reasonable distributions, without going to the extent of forcing unwise distributions.
And the Senate Committee on Finance, in its report on the 1928 bill, stated:
The House bill (sec. 104), through an artificial definition of personal holding companies, attempted to strengthen the provisions of the existing law (sec. 220) relating to the evasion of surtaxes through the formation of corporations and the accumulation of income. As in the case of all arbitrary definitions, (he effect was to penalize corporations which were properly building up a surplus and to fail to recognize business necessities and sound practices. * * * Accordingly, your committee recommends that the provision of the House bill be eliminated and the provisions of existing law be restored.
The recommendation of the Finance Committee was adopted in the final passage of the 1928 Act, and here again we have unmistakable evidence that it was the legislative intent that the provisions in question should not be so construed as “ to penalize corporations which were properly building up a surplus,” and that in the application of those provisions recognition should be given to business necessities and sound practices.
So far as appears, the- Commissioner has not changed his construction of section 220, as embodied in the regulations promulgated under the 1918 Act, namely, that the application of this section depends upon the two elements of (a) purpose to escape the surtax and (b) unreasonable accumulation of gains and profits. That the deficiencies involved in this case were determined upon that basis is disclosed by a letter addressed to the petitioner corporation under date of September 10, 1925, in which the respondent stated:
An examination of tbe income and profits tax returns filed by your company for the period from April 1 to December 31, 1920, and for the calendar year 1921, together with a Revenue Agent’s report of his investigation of your books and accounts for those years, discloses Out you have permitted gains and profits to accumulate beyond the reasonable needs of this business. It, therefore, becomes necessary to invoke the provisions of Section 220 of the Revenue Acts of 1918 and 1921.
*837The prevailing opinion does not hold that the evidence supports the finding oí the Commissioner that the accumulation was unreasonable, and it clearly does not support such a conclusion. On the other hand, the evidence supports the conclusion that the certificate of the Commissioner was not founded on fact and the prevailing opinion is based upon other grounds. In my opinion, the evidence must show that the facts certified are true to warrant the penalty of the statute.
The real question for consideration, in my opinion, is whether or not the corporation was formed or availed of for the purpose of preventing the imposition of the surtax upon the stockholders through the medium of 'permitting the profits to aeawmulate beyond the reasonable needs of the business. In my opinion both intent or purpose and an overt act are necessary to bring a corporation within the penal provisions, and the overt act is the accumulation beyond business needs, not simply an accumulation, except in a case where it is shown that a corporation is formed for the prohibited purpose.-
The prevailing opinion does not hold that the corporation herein was formed for the prohibited purpose, but concedes that it was not. The only question here, then, is whether the corporation was availed of for the prohibited purpose. If the evidence justifies the conclusion that the accumulation was beyond the reasonable needs of the business, then the penalty should be imposed. But if the accumulation was not unreasonable for the business necessities, we may not impute the prohibited intent because tax is avoided as an inherent result of such accumulation.
Applying these principles to the instant case, I can reach no other conclusion, under the evidence before us, than that the accumulation of earnings by the petitioner corporation in the taxable years not only was not excessive, but at the end of 1921 was still inadequate for its business needs. Since the prevailing opinion does not hold that there was an unreasonable accumulation, it might not be of importance to discuss that feature, but the testimony on this question is to my mind of such a convincing character that I refer to it briefly.
The petitioners offered a number of witnesses who were qualified in an unusual degree to testify from personal knowledge and experience with respect to the conditions existing in Seattle during and prior to the taxable years, and also to express opinions as to the reasonableness of the corporation’s accumulation of surplus.
The credibility of these witnesses is not questioned, and their testimony, which stands uncontradicted, shows that during 1920 and 1921 the petitioner corporation faced a very uncertain situation in refer*838ence to the earning of future profits, and that its financial position was precarious. The consensus of opinion of these witnesses was that the corporation should have accumulated and maintained an earned surplus greater in amount than it accumulated either for 1920 or 1921.
The record discloses that for the 9-month period of 1920, the operating expenses of the corporation amounted to $261,566, and during 1921 the operating expenses totaled $309,692, or an average for the two years of $288,629. In addition to its annual operating expenses, the corporation was obligated to make a payment of $50,000 each year on the principal of the mortgage of the L. 0. Smith Building, assumed by it, exclusive of interest.
In 1920 the gains and profits of the corporation which were permitted to accumulate and become surplus, including a small paid-in surplus, amounted to only $18,315.55, which was increased at the end of 1921 to $212,222.43. The total amount accumulated to the end of 1921, the last taxable year before us, was more than $100,000 less than the amount of its operating expenses for the 9-month period of 1920, plus the annual payment on the principal of the L. O. Smith Building note. In the light of the evidence in the record, I can not regard this accumulation of earnings as unreasonable for the business needs of the corporation, nor does the majority in its opinion so conclude.
However, in the majority opinion, the question of reasonableness of the accumulation is given scant consideration. Ho finding is made on this point, and the case is decided on the theory that in 1921 the corporation was availed of for the purpose of preventing the imposition of the surtax on its sole stockholder, Burns Smith, for the reason that in that year Smith paid in to the corporation for shares of its capital stock large amounts of stocks and bonds of other domestic corporations, and since the petitioner corporation accumulated all of its earnings for that year, Smith thereby escaped the surtax.
As before stated, I am unable to concur in the soundness of this view, because a corporation has the unquestioned right to accumulate a reasonable surplus, and avoidance of the surtax is an inherent incident to such accumulation. Hence, the provisions of the statute should not be applied by imputing the prohibited intent to a corporation whose earnings have not been accumulated in excess of its reasonable business needs. However, I am constrained to reach the same conclusion in this case on yet another ground.
*839The petitioner corporation represented an investment by Smith of approximately $2,000,000 and comprised more than two-thirds of all his property. It seems to me, therefore, that it was vastly more important to Smith to safeguard his investment by placing the corporation in a sound financial position through the accumulation of a reasonable surplus than to effect the saving of a comparatively small amount of surtax. For this reason I am unable to agree with the majority conclusion that Smith’s motive in providing his newly organized corporation with the means of accumulating a reasonable surplus was to escape the surtax.
So far as the merits of this case are concerned, I do not regard the borrowings by Smith from the corporation of importance. They do not indicate that the corporation’s surplus was in excess of its business needs and the prevailing opinion does not consider them indicative of such fact. The surplus remained unchanged on that account. The amounts were not shown not to have been available to the corporation. They were still assets. Bona fide loans to a solvent stockholder by a corporation, where its surplus was not unreasonable for business needs, are legitimate transactions and do not in my opinion indicate the prohibited purpose. The obligations of Smith bore interest and the fact that interest was not actually paid during the year involved is not important. These transactions would be important and material only in the event the corporation had a surplus beyond its business needs. The borrowings by Smith should properly be considered in connection with all the other evidence on the question as to the reasonableness of the accumulation of profits, but the other evidence on this point is overwhelming.
There is some suggestion in the record that in the later years Smith continued to exchange securities for stock of the petitioner corporation and that the corporation continued to accumulate earnings until its surplus exceeded its reasonable needs. But the later years are not before us here, and such facts, if they be facts, are not relevant in determining the tax liability of the petitioners for the years 1920 and 1921.
For the reasons indicated, it is my opinion that our decision on this point should be for the petitioners in both cases.
Matthews agrees with this dissent.