dissenting: I dissent from the majority opinion of the Board because I believe the respondent has met the burden of proof *1254required oí him by the statute cited. The opinion of the majority in determining there was no liability of the petitioner as transferee, assumes for the purpose of that discussion that the tax liability of $68,835.73 asserted by the Commissioner against the transferor corporation, Harman & Co., for 1919 is correct. Assuming that fact to be correct, is petitioner liable as transferee under section 280 of the Revenue Act of 1926?
The findings of fact preceding the majority opinion are not in my judgment as full as the evidence justifies. This findings of fact should show that after disbursing to its officers, Harman, Palmer, and Renyx, $228,487.64 in salaries in 1919, the transferor corporation, Harman & Co., had on December 81, 1919, assets and liabilities as follows:
[[Image here]]
In determining the question of solvency or insolvency of the trans-feror corporation the liability for taxes must be considered, although such liability may have been unknown at the time the transfer took place. A tax retroactively and subsequently levied is a potential liability of a corporation, of which the stockholders must take notice. United States v. Keaton, 26 Fed. (2d) 227; Updike v. United States, 8 Fed. (2d) 913.
So, taking into consideration that the tax liability for 1919 is $68,838.73, and that the respondent proved at the hearing that all of the assets of the transferor corporation, including organization good will carried on its books at $6,000, were only valued at $28,546.20 December 31, 1919, has respondent sustained the burden of proof as to the insolvency of the corporation? I think he has. But the petitioner contends and the majority opinion seems to hold that, conceding this distribution in 1919 of $228,487.64 to these three stockholders created a condition of insolvency, nevertheless such distribution was salary to these officers and the burden of proof is on the Commissioner to show that such distribution was not in fact a distribution as salaries, but was part salaries and the balance a dividend distribution to the stockholders. I do not disagree with the statement that such was the proper burden of proof placed on respondent by the statute, but I think he met it at the hearing. An examination of the record will show that respondent’s principal witness at the hearing was petitioner Guy W. Renyx, and by this *1255witness he proved that in the prior year 1918 the transferor corporation, Harman & Co., paid to its three officers, Palmer, Harman, and Renyx, salaries of $28,000 each and that these amounts were deducted as a business expense by the corporation in its 1918 return and were allowed by the Commissioner. So, considering this evidence and also the evidence as to the duties performed by the petitioner as treasurer of the corporation in the taxable year involved, along with the volume of business done in 1919, as set out in the findings of fact, I consider the evidence establishes that petitioner’s services were worth no more in 1919 than the same salary which was paid him in 1918, which was $28,000. I think a finding on the part of this Board that $28,000 salary to each of the transferor corporation’s officers, Harman, Palmer, and Renyx, in 1919 was as much as they were entitled to receive would be liberal enough in view of the fact that the corporation’s return for 1919, which was introduced in evidence by respondent, showed that each of the above three officers devoted one-third full time to the corporation’s business. Therefore, it is my opinion that, after making allowance for $28,000 salary to petitioner in 1919, the balance of $76,245 which he received was in fact a distribution of profits in the form of a dividend, and this distribution along with similar distributions made to the other two stockholders, Palmer and Plarman, rendered the corporation insolvent, when its tax liability for 1919 is taken into consideration. Therefore, I believe the respondent has met the burden of. proof required of him by the statute and has shown that petitioner is a transferee of assets within the meaning of section 280 of the Revenue Act of 1926.
Lansdon and Smith agree with this dissent.