*217OPINION.
ARtjndell:The respondent, in auditing petitioner’s returns for 1926 and 1927, computed the tax under both section 230 of the Eevenue Act of 1926 (at the 13% percent rate) and section 220 (at the 50 percent rate). Petitioner does not question the computation under section 230. It takes issue with the respondent’s application to it of section 220, contending that it does not come within the provisions of that section, and that that section is unconstitutional. Subsections (a) and (b) of section 220, which are all we are concerned with here, are set out in the margin.1
The constitutionality of section 220 of the Eevenue Act of 1926, and the corresponding provisions of earlier statutes, has been sustained by all the tribunals that have considered the question. See United States Business Corporation v. Commissioner, 62 Fed. (2d) 754, affirming 19 B. T. A. 809; Williams Investment Co. v. United States, 77 Ct. Cls. 396; William C. DeMille Productions, Inc., 30 B. T. A. 826. We follow those decisions on this point.
If the petitioner was either “ formed or availed of ” for the purpose of preventing imposition of surtaxes on its stockholders, it becomes subject to the additional tax. We are convinced that the petitioner corporation was not formed for the purpose described in the statute. The creation of the petitioner was entirely Kelley’s idea, and he carried it through not only without help from the Fishers, but even over the opposition of Harry O. Fisher. Kelley testified at length as to his reasons for organizing the petitioner, and we have set them forth in considerable detail in our findings of fact. A restatement of them is unnecessary here and we need say no more than that on this point, on which Kelley was undoubtedly qualified to testify, we give full credence to his testimony and hold that in so far as the formation of the petitioner is concerned it does not come within section 220.
*218The question of whether the petitioner was “ availed of ” to avoid surtaxes is more difficult to decide. The statute lays down as a rule of evidence that permitting gain, or profits “ to accumulate beyond the reasonable needs of the business, shall be prima facie evidence of a purpose to escape the surtax.” In this connection we have said that the statute does “ not contemplate that a business should remain static; it must be assumed that any business shall have the right to grow.” William C. DeMille Productions, Inc., supra. In this case the petitioner made no distribution of its profits in 1926 and 1927, but permitted them to accumulate through both years. It was not until the close of 1928 that a dividend was declared. In 1926 the petitioner had a gross income of $201,701.47 and a net of $92,344.85, and this latter figure represented its surplus at the end of the year. For 1927 its gross income and net were, respectively, $209,320.02 and $103,503.78, and its surplus at the end of 1927 was $168,848.07. The evidence is that, had the contingencies facing the business materialized, a sum of $200,000 would have been insufficient to meet them. From this it follows that the profits accumulated were not in excess of the reasonable needs of the business. Consequently, the accumulation of profits does not.make out a prima facie case and we must go to other evidence in the record to determine whether the petitioner corporation was availed of to escape surtax.
Throughout the record there is apparent a difference of opinion between Kelley, the actual, active manager of the petitioner, and Harry C. Fisher, its nominal head and majority stockholder. Kelley, on the one hand, bent every effort toward accumulating a sufficient surplus to meet the several contingencies facing the business and to keep up its earning power. Fisher, on the other hand, did not even want a corporation to take over the business, and after he “ adopted the corporation ” — using Kelley’s words — he apparently saw no need of accumulating any capital, for he proceeded in 1927 to overdraw his account by more than $73,000. In fact his withdrawals appear to have been greater than indicated by this figure, for some of his personal withdrawals were charged against the firm of Fisher & Fisher. In 1926 one item of over $39,000, representing a withdrawal by Harry C. Fisher, was charged to the firm, so that as a matter of fact he was overdrawn at the end of that year instead of having a balance to his credit as shown by the books. Kelley tried to interest the Fishers in producing Mutt and Jeff moving pictures in order to keep up the earning power of the cartoons, but they refused to go in with him on the deal.
If we were to judge the purpose of using the corporation for carrying on the cartoon business by the conduct of Harry O. Fisher, *219we would be confronted with a difficult task. His conduct in 1925 and during the taxable years indicates no purpose but to spend lavishly. Herein lies the solution to the question before us. Fisher did not appear at the hearing. We know, however, from the evidence in both this case and a prior case involving his own income tax for 1925 (see 29 B. T. A. 1041) that he was merely the nominal head of the business. He performed no services either for the petitioner or the firm that preceded it. He had no initial investment in it and refused to put any in. His only contact with it was to draw funds from it for his personal use. In this situation the conduct of the individual who in the majority of cases would be the responsible head of the business cannot be taken as establishing the purpose for which the corporation was used. And because of his lack of responsibility we think it not only proper but necessary to determine the true purpose for which the corporation was created and used from the testimony of Kelley, who was its organizer and actual head. Kelley, it is shown by the evidence, has been actively in charge of Fisher’s business affairs since about 1911. He knew Fisher’s propensity for spending and he knew too the hazards of the cartoon business; he had seen syndicates fail and knew the necessity for the business to be in a position to make its own distribution of cartoons. Kelley’s testimony is directly to the point that in organizing the corporation and operating the business through it he had two objectives in view, one of which was to curb Fisher’s lavish spending, and the other to provide capital to meet the contingencies of the business. It is a demonstration of his seriousness of purpose that when in 1927 he discovered Fisher’s overdraft — part of which had been charged to Fisher & Fisher- — he demanded and secured a restoration to the petitioner.
Considerable stress is placed by respondent on the fact that in 1928 petitioner invested in Cartoonist Court, Inc., a corporation organized to take over Harry C. Fisher’s real estate and his racing and breeding-stables, and that in subsequent years petitioner made substantial advances to that corporation. We have considered these facts, but we do not believe that they reflect the purpose for which petitioner was operated in 1926 and 1927.
We accordingly conclude that petitioner was not formed nor, during 1926 and 1927, availed of for the purpose of permitting its stockholders to escape surtax.
Reviewed by the Board.
Decision will be entered imder Rule 50.
See. 220. (a) If any corporation however created or organized, is formed or availed of for the purpose of preventing the imposition of the surtax upon its shareholders through the medium of permitting its gains and profits to accumulate instead of being divided or distributed, there shall be levied, collected, and paid for each taxable year upon the net income of such corporation a tax equal to 50 per centum of the amount thereof, which shall be in addition to the tax imposed by section 230 of this title and shall (except as provided in subdivision (d) of this section) be computed, collected, and paid upon the same basis and in the same manner and subject to the same provisions of law, including penalties, as that tax.
(b) The fact that any corporation is a mere holding or investment company, or that the gains or profits are permitted to accumulate beyond the reasonable needs of the business, shall be prima faeie evidence of a purpose to escape the surtax.