dissenting: I dissent from the conclusions reached in the majority opinion. It is my view that the Commissioner has treated the transactions involved in this proceeding in accordance with the applicable statute and his regulations promulgated thereunder, and moreover that these regulations are correctly interpretative of the law. The statute which must be construed is section 201 (a), (f) of the Revenue Act of 1926, which reads:
Sec. 201. (a) The term “ dividend ” when used in this title * * * means any distribution made by a corporation to its shareholders, whether in money or in other property, out of its earnings or profits accumulated after February 28, 1913, * * *
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(f) A stock dividend shall not be subject to tax.
In pursuance of the foregoing statute, the Commissioner has promulgated articles 1547 and 1548 of Regulations 69, which read as follows:
Abt. 1547. Dividends paid in property. — Dividends paid in securities or other property (other than its own stock) in which the earnings of a corporation have been invested, are income to the recipients to the amount of the market value of such property when receivable by the shareholders. (See, however, section 203 (g) and article 1576.) Where a corporation declares a dividend payable in stock of another corporation, setting aside the stock to be so distributed and notifying the shareholders of its action, the income arising to the recipient of such stock is its market value at the time the dividend becomes payable. (See article 52.) Scrip dividends are subject to tax in the year in which the warrants are issued. [Italics supplied.]
Abt. 1548. Stock dividends. — The issuance of its own stock by a corporation as a dividend to its shareholders does not result in taxable income to such shareholders, but gain may be derived or loss sustained by the shareholders from the sale of such stock. The amount of gain derived or loss sustained from the sale of such stock, or from the sale of the stock with respect to which it is issued, shall be determined as provided in articles 1561 and 1599. [Italics supplied.]
Similar regulations are found in articles 1547 and 1548 of Regulations 62 under the 1921 Act, and articles 1547 and 1548 of Regulations 65 under the 1924 Act, and articles 627 and 628 of Regulations 74 under the 1928 Act. The substantial reenactment in later acts of the provisions theretofore construed by the Bureau is persuasive evidence of legislative approval of the regulation. Brewster v. Gage, 280 U. S. 327; National Lead Co. v. United States, 252 U. S. 140.
*920It seems clear to me from a reading of the foregoing regulations that the dividend distribution involved in this proceeding was a nontaxable one under the terms of these regulations. The Commissioner has consistently given such interpretation to his regulations. For example, in I. T. 2538, C. B. IX-1, p. 465, the M Company had outstanding preferred stock, the dividends on which were payable in cash or at the election of the stockholders in common stock. In December, 1929, a dividend was declared payable in cash on February 15, 1930, in respect of each share, the record holder of which on January 15, 1930, had not on or before such date filed a certificate of election to receive dividends in common stock. If a certificate of election was filed, the dividend was payable in common stock. It was held under such circumstances that the stockholders who filed certificates of election and received their dividends in common stock, received a stock dividend and therefore received no taxable income.
The error, as I see it, of the majority opinion in holding that such dividend was not a stock dividend is that it assumes that the only kind of a stock dividend exempted from taxation by section 201 (f) is such a stock dividend as was present in Eisner v. Macomber, supra. In that case the Standard Oil Company of California, having only one class of stock, to wit, common stock, had declared and paid out of surplus and profits an ordinary stock dividend by distributing to its several stockholders common stock of the corporation in proportion to the common stock holdings of each. The Government determined that such distribution was taxable, but the Supreme Court held to the contrary.
The fundamental question which the Supreme Court decided in that case was stated by the court in the beginning of its opinion, as follows:
This case presents the question whether by virtue of the sixteenth amendment Congress has the power to tax as income of the stockholder and without apportionment, a stock dividend made lawfully and in good faith • against profits accumulated by the corporation since March 1, 1913.
It is my view that in the instant case we have before us a “ stock dividend ” made lawfully and in good faith against profits accumulated by the corporation since March 1, 1913, just as much as was present in Eisner v. Macomber. The only difference is that in the instant case we have no constitutional question involved because, in my view, Congress has made no attempt to tax such a dividend as we have here. True it is that the stock dividend involved in Eisner v. Macomber was the ordinary stock dividend where all stockholders were treated alike by receiving a dividend in common stock in proportion to their common stock holdings and when the dividend dis*921tribution was completed each stockholder still owned the same proportional interest in the corporation as he did before.
But that kind of a stock dividend is not the only kind that is free from tax. The Government made that kind of a contention in the following cases, but its contention was denied by the courts. United States v. Mellon, 279 Fed. 910; affd., 281 Fed. 645, and United States v. Davison, 1 Fed. (2d) 645; affd., 9 Fed. (2d) 1022; certiorari denied by the Supreme Court. More will be said about these cases later on in this dissent.
Ballentine’s Law Dictionary defines a stock dividend as a “dividend payable to the stockholders of a corporation in shares of stock of the corporation, which dividend a corporation having power to increase its capital may in the absence of statute declare, and which represents earnings of the corporation invested by . the board of directors in the enlargement and extension of its work or its plant or both.”
The dividend in the instant case, it seems to me, fits almost exactly into the foregoing definition.
The Willys-Overland Company had certain authorized but unissued common stock. It was in arrears in dividends on its preferred stock. It had sufficient accumulated profits and surplus to pay these dividends, but such surplus and profits were not in cash. The situation was fully described in the dividend resolution of December 2, 1925, which has been quoted in the majority opinion and to which reference is hereby made. The distribution which it made to its preferred stockholders in pursuance of said resolution was not in cash or other property belonging to the corporation, but only in common stock of the corporation, up until that time, unissued. There was in no sense a severance from the corporation assets of the subject of the dividend.
In Hayes v. St. Louis Union Trust Co., 298 S. W. 91, the court said:
A stock dividend, which is really nothing more than a process in corporation bookkeeping, is not in any sense a real “ dividend ”, which implies a severwnoe from the corporate assets of the subject of the dividend and a distribution thereof among the stockholders. [Italics supplied.]
The distinction between the title of a corporation and the interest of its members or stockholders in the property of the corporation is familiar and well settled. The ownership of that property is in the corporation'and not in the holders of shares of its stock. The interest of each stockholder consists in the right to a proportionate part of the profits whenever dividends are declared by the corporation, during its existence under its charter, and to a like proportion of the property remaining upon the termination or dissolution of *922the corporation after payment of its debts. Gibbons v. Mahon, 136 U. S. 557.
The dividend declaration of the Willys-Overland Corporation made it quite apparent that the corporation did not intend to part with any of its cash or property. 'All of that it needed to keep in the business. All of that it did keep in the business and paid dividends to its preferred stockholders, not in money or property, but in the unissued common stock of the corporation. I think such a stock dividend fits squarely into the description of what a stock dividend is, contained in Eisner v. Maoomber and quoted by the court in United States v. Mellon, supra, as follows:
“A ‘ stock dividend ’ shows that the company’s accumulated profits have been capitalized, instead of distributed to the stockholders or retained as a surplus available for distribution in money or in kind should opportunity offer. Far from being a realization of profits of the stockholder, it tends rather to postpone such realization, in that the fund represented by the new stock has been transferred from surplus to capital, and no longer is available for actual distribution. The essential and controlling fact is that the stockholder has received nothing out of the company’s assets for his separate me and benefit; on the contrary, every dollar of his original investment, together toith whatever accretion and accumulations have resulted from employment of his money and that of the other stockholders in the business of the company, still remains the property of the company, and subje'ct to business risks which may result in wiping out the entire investment. Having regard to the very truth of the matter, to substance, and not to form, he has received nothing that answers the definition of income within the meaning of the Sixteenth Amendment.” [Italics supplied.]
In the majority opinion in the instant case there is this statement: “ Some of the preferred stockholders insisted upon and received the dividend in cash.” I wish to point out that such fact has no significance. In United States v. Mellon, supra, and United States v. Davison, supra, the Government contended that the dividend in question was not a stock dividend because, among other reasons, stockholders of the Gulf Oil Corporation holding 1,740 shares of stock received their dividend in cash, amounting to $174,000. The court in its opinion said that as to these particular stockholders it was of course a cash dividend and taxable as such, but as to the other stockholders who went along with the plan, it was a stock dividend. On that point the court said:
It is conceded that some of the stockholders took cash. As to them, it was a cash dividend, and taxable as such. But as to the defendant, and the other stockholders who received stock, it would appear under the facts to be a stock dividend, and not taxable. The question is to be determined from the result to and the effect upon the individual stockholder.
Much emphasis is laid in the majority opinion upon the fact that in Eisner v. Maoomber the stock dividend was such that after it was paid, all stockholders continued to own the same proportional *923interest in the corporation as before; that this was the sole basis of the court’s decision; that other expressions of the court should be disregarded; and that the exemption prescribed by section 201 (f) should not be extended beyond the scope of the kind of a stock dividend present in Eisner v. Macomber. In pointing out why the dividend in the instant case was not a “ stock dividend ” the majority opinion says, “ This was not a proportional redistribution of existing or inchoate rights. There was a substantial change in the shareholder interests not only of this petitioner but of all other shareholders as well.”
So there was also in United States v. Mellon, and United States v. Davison. It does not take a mathematician to figure out that when the owners of 1,740 shares of Gulf Oil Corporation stock declined to accept a stock dividend but insisted upon and received their dividend in cash, and the balance of the stockholders received a stock dividend, there was a substantial change in the shareholder interests not only of the stockholders who owned 1,740 shares and received their dividends in cash, but of the shareholders who received their dividends in stock.
A simple illustration will serve to exemplify. Suppose we have corporation M with 100 shares of common stock. A owns 40 shares which is 40 per cent of the capital stock. B owns 40 shares, which is 40 per cent of the capital stock. O owns 20 shares, which is 20 per cent of the capital stock. A stock dividend of 100 per cent is declared, but C insists upon and receives his dividends in cash. Thereafter the capital stock is 180 shares owned as follows: A owns 80 shares, which is 444/9 per cent of the capital stock. B owns 80 shares, which is 444/0 per cent of the capital stock. C owns 20 shares, which is 11% per cent of the capital stock. The above illustration is just the sort of thing that happened in United States v. Mellon and United States v. Davidson, as I understand it, yet the courts held in those cases that the dividends to the stockholders who accepted the plan were “ stock dividends ” and exempt from taxation and the Supreme Court denied a writ of certiorari.
Therefore in view of these facts, I am forced to conclude that the essential fact in Eisner v. Macomber is not as the majority opinion holds, that the stock dividend must be of the kind which, after it is paid, leaves all the stockholders with the same proportional interest in the corporation as they had before, but is as the court says: “ The essential and controlling fact is that the stockholder has received nothing out of the company’s assets for his separate use and benefit.” In other words, there has been no severance of anything from the corporation’s assets or payment to the stockholder.
The kind of case which we have before us here should not be confused with those cases where a corporation pays a dividend by *924distributing stock which, it owns in some other corporation or even its own stock, which at one time was issued, and later bought up with the corporation’s funds and held in its treasury. In dividends of this sort there is a real severance from the corporate assets. That kind of case was the subject of the court’s opinion in Leland v. Hayden, 102 Mass. 542.
In the instant case the dividend was not declared from stock already paid for in full to the corporation and repurchased by it, but was from stock previously unissued. The stipulation shows that the common stock of the Willys-Overland Company was duly increased from $50,000,000 to $75,000,000 in May, 1920. The board of directors was authorized to appropriate 262,309 shares of the unissued common stock for the payment of dividends to the preferred stockholders.
It was out of these 262,309 unissued shares of Willys-Overland Company’s common stock that petitioner’s dividend was paid. For reasons which I have stated, I believe that such a dividend distribution is a stock dividend within the meaning of section 201 (f) of the Revenue Act of 1926, and that respondent’s treatment of it in arriving at petitioner’s tax liability for the year in question was correct.
Smith agrees with this dissent.