dissenting: I am unable to concur in the conclusion of the majority. The question in the case is whether or not certain payments were deductible business expenses of the petitioner. I believe the case turns on the agreement of December 31, 1928, and the subsequent transactions. By this agreement, after reciting that the amounts were due, the petitioner agreed to assign listed assets aggregating the amount of the claim. For corporate credit reasons, the assignment was not made, but the petitioner thereupon collaterally agreed to pay 6 percent on the sum due until such assignment should be made. The payments of 6 percent so made during 1929 give rise to the present controversy. The petitioner deducted them as interest paid. The respondent held them to be dividends.
By the agreement of December 31, 1928, the amount owed by the corporation to the Perrines was fixed and it was agreed assets should be assigned in payment. There would seem to be little doubt that the Perrines could have compelled specific performance of this agreement. The subsequent or collateral agreement to pay 6 percent on the principal amount, so long as the petitioner withheld the assets and failed to make the agreed assignment was a new obligation. By *177it the petitioner agreed to pay for the privilege of retaining the assets. Whether this new relationship was a loan of the $162,687.08 or a loan of the assets, it is not necessary to decide, but it seems clear to me the payment of the 6 percent for the use thereof was a proper business expense. The agreement to pay was absolute and was not related to the earnings on the assets or stock. It is only by an artificial and strained construction that it could be so related to the series A stock as to hold it to be dividends.
Smith agrees with this dissent.