dissenting: I am unable to concur with the foregoing decision and opinion. As therein stated, the questions are purely legal. We are first called upon to determine whether the security sold by the corporation is a stock or a bond. In determining this question the courts have consistently disregarded the name which the parties have given to the security and have determined its true character from the qualities and properties of the security and the rights and obligations of the parties. It is obvious that this security is not the conventional preferred stock, though it has some of the characteristics of preferred stock. It is provided in the charter that it shall be retired at par within ten years from the date of issue. The holders thereof have voting rights only in case of default in the payment of the so-called dividends. No indebtedness in excess of $25,000 should be incurred until the stock is retired. It was given a priority, both as to income and assets, over the preferred and common stock. The so-called dividend was cumulative and at a fixed rate. The proceeds of all sales of assets are to.be applied first to the payment to the holders of the debenture stock of the full amount of the par value of their stock and the unpaid dividends thereon.
Summarizing the foregoing, it appears that there is a promise to pay a specific sum of money, on or before a certain date, with interest *653at a specified rate, which promise to pay is guaranteed by the limitation on general indebtedness and a preference given as to payment. It is not necessary to hold that there is a lien or a mortgage to secure the payment. The limitation of indebtedness, coupled with the preference, accomplishes practically the same result.
The relative priority between -a general creditor and the holder of a security is commonly and properly considered to be one of the important factors in determining whether a security is a stock or a bond. It is an important factor in this case. The position of the holders of this debenture stock would be vastly different if there were no limit on the amount of indebtedness to general creditors which could be incurred by the corporation. Considering the value of the assets behind this corporation, the maximum indebtedness to general creditors permitted by the charter is a mere trifle.- For all practical purposes, so far as the holders of this stock are concerned, there are and can be no general creditors. Assuming that the maximum permitted indebtedness to general creditors was incurred and paid, the impairment of assets as the result thereof would be insignificant.
The purpose of the corporation was not to mine coal but was, instead, to sell or lease the coal-bearing lands which it owned. The continued use of large amounts of capital was not necessary. The holders of the certificates were not investors in the business. They knew at the time they acquired the stock that the company would soon start retiring it. There is nothing in the record to indicate that any of the interested parties considered the holders of the certificates to be stockholders in the commonly accepted sense of that term. On the contrary, all of the indications are that they were considered as creditors.
The courts have always given careful consideration to the interpretation of a contract by the parties thereto, as evidenced by their performance of its terms, and there is no occasion to depart from a rule so well established.
The problem is simplified by reversing it. Are these certificates shares of stock? Could the cash or property paid in therefor properly be included in invested capital?
In the Appeal of I. Unterberg & Co., 2 B. T. A. 214, we said:
It [the certificate] promises to pay a specified amount, with interest, to a definite person at a definite time. Then follows the restrictive condition that it is subordinate to the claims of general business creditors at maturity or on liquidation. This latter condition, the taxpayer contends, is such that it converts the instrument into preferred stock. The contention is that by sub*654ordinating the right of the holder to that of the general creditors the instrument represents property placed at the risk of the business and not property loaned to the corporation. In other words, the dominant feature is said to he the condition and the risk and not the promise to pay.
There we also said:
Examining the terms and effect of the instrument, we are unable to hold it to be a certificate of stock. It is evidence of a restricted indebtedness. The fact that the principal amount is subordinated to the claims of general business creditors is not sufficient to warrant this Board’s determination that it is stock for the purpose of invested capital, when for all other purposes so far as we are advised the parties have treated it as a note. The interest is payable semi-annualy in any event. Has it been paid, and has it been deducted as interest in computing taxable net income? Has the capital-stock-tax return included the amount of these instruments as the basis of tax? Have the amounts of these notes ever been subjected to apy of the tests or vicissitudes of stock? The evidence does not inform us. We are not inclined therefore didactically to say that these are certificates of stock for tax purposes in the absence of convincing evidence that they are regarded as such for other purposes or convincing argument that they must be held to be such for all purposes notwithstanding the apparent intention of the interested parties to the contrary. As counsel for the taxpayer says, they can not be both stock and notes, and having presumably given them full effect as notes during their life, we will not now say they were stock.
It is clear that the certificates now being considered are in their essentials very similar to those in Unterberg's Appeal, supra, and the Appeal of A. H. Stange Co., 1 B. T. A. 58. If in those appeals the certificates were bonds, the conclusion should be the same here.
In Unterberg's Appeal (similar in facts, except that the limit of general indebtedness is lower), we state:
They were payable at maturity, subject to the claims of general creditors. They were an obligation of the corporation, enforeible in all respects except that the general creditors might insist that assets should not be impaired below the amount of their claims. They were of lower degree than such claims, and yet fixed in amount and time so as to distinguish them from stock. Indeed, it may be asked why, if after all they were stock, such care was used to limit the stock to $200,000 and issue notes for the rest? Apparently it may be inferred that the owners were willing to venture $200,000 in the business, but desired to be assured of the return of the $236,000 except in case of failure within three years. One was a business risk and the other a reasonably safe three-year investment.
A consideration of all of the factors in this case leads me directly to the conclusion that the holders of these debenture stocks are creditors of the corporation, and that the sums paid therefor are loans rather than contributions of capital. The so-called dividend is in reality interest and sho'uld be deducted as an expense when paid or accrued, depending upon the method of accounting employed by the taxpayer.
*655The sale of these debentures at a discount is analogous to the sale of bonds at a discount, and the amount of the discount should be amortized- and the aliquot part deducted annually.