dissenting: No part of the profit derived by these petitioners from the disposition of their Lamination Co. stock is taxable to them as a dividend. The distribution in question was in complete liquidation of the Lamination Co. Section 115 (c), a general provision covering the ordinary case, provides that “ amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock.” The gain, if any, from such a distribution would be taxable normally, not as a dividend, but as an ordinary gain. Section 112 (c) (2) is a special provision which applies only when a number of stated circumstances concur. The legislative history of that provision shows that it was intended to prevent taxpayers having large incomes from avoiding surtax on dividends through corporate reorganizations. The prevailing' opinion states that “ to the extent of the accumulated earnings it is apparent that they [liquidating distributions] have ‘ the effect of the distribution of a taxable dividend.’ ” In other words, every distribution by a corporation having earnings accumulated after February 28, 1913, has the effect of the distribution of a taxable dividend. If the legislators had so intended a simple statement in the act would have made their intention clear. The meaning of the words “ has the effect of the distribution of a taxable dividend ” must be determined. These words and the-example given in the Committee reports, quoted *1231in the prevailing opinion, indicate that section 112 (c) (2) does not apply unless an examination into the particular transaction discloses some close resemblance between the distribution in question and an ordinary dividend distribution. Cf. sec. 115 (g), Revenue Act of 1928; Annie Watts Rill, 27 B.T.A. 73; aff'd., 66 Fed. (2d) 45. Normally a liquidating dividend does not have the effect of a taxable dividend, i.e., a dividend taxable-at surtax rates only, and section 112 (c) (2) was intended to apply to such a dividend only in the exceptional case.
The reorganization involved in this case was not designed for the purpose of permitting the Lamination stockholders to receive a dividend from their corporation. The Allegheny Steel Co. (unlike corporation B in the example) was not organized to take over all of the assets of the other company and distribute its surplus. Not only was the reorganization for a wholly different purpose, but the final result was quite different from what it would have been had the Lamination Co. merely declared and paid a dividend of its surplus. The assets of two corporations were commingled and two sets of former stockholders were united with common interests in but one corporation. This distribution did not have the effect of the distribution of a taxable dividend. Instead its effect was just about as different from that of a taxable dividend as well could be in the case of a distributor having earnings accumulated after February 28,1913. Since there is no reason to tax the gain in any but the ordinary way, the gain recognized under section 112 (c) (1) is subject to both normal tax and surtax.
SteRnhagen and Goodeich agree with this dissent.