dissenting: I dissent from the majority holding under point V that the liquidation of Pierce Fordyce gave rise to gain to Pierce Oil. My disagreement does not go to the amount of gain, but to the proposition that the liquidation of a Texas unincorporated joint stock company or association may give rise to gain or loss to the members.
The majority holding is based on the premise that such an association is “ to be treated as a corporation for all purposes of the revenue act.” This I think is too broad a statement and I do not read the cited case of Burk-Waggoner Oil Association v. Hopkins, 269 U. S. *440110, as going that far. That case sustained “ the power of Congress to determine how and at what rate the income of the joint enterprise shall be taxed ”, namely, at corporate rates, but in the same paragraph of its opinion the Supreme Court said that “ Congress cannot convert into a corporation an organization which by the laws of its state is deemed to be a partnership.”
Pierce Fordyce, like Burk-Waggoner, was a Texas association. The laws of Texas treat such associations as fundamentally different from corporations but in all essential respects like partnerships. The Supreme Court in the Burk-Waggoner case points out:
* * * an association like the plaintiff is a partnership; its shareholders are individually liable for its debts as members of a partnership, Thompson v. Schmitt, 115 Tex. 53, 274 S. W. 554; Victor Refining Co. v. City National Bank of Commerce, 115 Tex. 71, 274 S. W. 561; and the association cannot hold real property except through a trustee, Edwards v. Old Settlers’ Association, 106 S. W. 423, 426.
The case of Thompson v. Schmitt, cited in the Burk-Waggoner opinion, holds that:
With certificate holders occupying the relation to the property of its actual and ultimate proprietors, entitled to remedies enforcing their rights as such, we cannot assent to any doctrine that they lack anything in the way of interest in or control over the property which would warrant our refusal to consider them partners.
In Sergeant v. Goldsmith Dry Goods Co., 110 Texas, 482; 221 S. W. 259, it is said:
The concern had no being except in those who were members of it. It was not tangible except as they were tangible. As to third persons, they are therefore liable as other principals are liable who deal with third persons through any form of agency. * * * The association was a fiction except as the members stood behind it. * * * They were the association.
If, as these cases indicate, the association has no identity separate and apart from the members and they are the actual proprietors of the property used by the association, I cannot see how gain or loss would arise from either a contribution to the association or a distribution in kind by it. The intangible being called the association does not, like the corporate cloak, insulate the member from liability for the acts of those selected to manage the property or operate the business. Upon distribution in liquidation a member of an association receives property in which he theretofore had a direct interest through his membership in the association; he receives nothing “ really different from what he theretofore had.” Weiss v. Stearn, 265 U. S. 242. This is the theory underlying the rule that there is no gain or loss to a partnership upon distribution in kind, which rule has been in effect for many years. See art. 1510, Eegulations 45, 62; art. 1603, Regulations 65, 69; art. 604, Regulations 74, 77; art. 113(a) (13)-2, Regulations 86.
*441Even if Pierce Fordyce itself is “to be treated as a corporation for all purposes of the revenue act ”, that is only stating the classification in which the Federal Government has placed it for tax purposes, and it does not reach the question of the relation between the association and its members. That relation as shown above is one of partnership, the incidents thereof, which included that of title to property, being determined by state law, and not Federal law. See Group No. 1 Oil Corporation v. Bass, 283 U. S. 279.
I also disagree with the portion of the opinion under point III which disallows the deduction of the unamortized discount on $4,191,-700 of bonds upon their exchange for preferred stock. It appears that petitioner had outstanding certain bonds which were callable at 105. It advised the holders of the bonds of its intention to call them and made the holders a choice of exchanging the bonds for preferred stock, par for par, or of accepting cash. Some .bondholders followed one course and some the other. The record shows that at the time of the exchange the market value of the bonds and preferred stock was each 105. The majority opinion, in reliance on Chicago, Rock Island & Pacific Railway Co. v. Commissioner, 47, Fed. (2d) 990, and 375 Park Avenue Corporation, 23 B. T. A. 969, treats the exchange as a capital transaction in which there can be recognized no gain or loss, and consequently holds that the unamortized discount cannot be written off. Later cases hold that upon the substitution of one bond issue for another the unamortized discount applicable to the first issue may be deducted. San Joaquin Light & Power Corporation v. McLaughlin, 65 Fed. (2d) 677; Helvering v. California Oregon Power Co., 75 Fed. (2d) 644; Helvering v. Union Public Service Co., 75 Fed. (2d) 723. All of these cases treat successive bond issues as separate transactions, unrelated for accounting, purposes. “ Logically all unamortized discount and premiums allocable to a bond issue now retired and dead are items of cost in acquiring capital and necessary to a determination of gain or loss upon a retirement of the issue.” Helvering v. Union Pacific Service Co., supra. It requires no argument to support the proposition that there is less relation between stocks and bonds than between successive bond issues. If each bond issue is a complete transaction within itself so separate and distinct that the discount and expenses applicable to it are to be accounted for upon its retirement even though the same kind of liability is substituted for it, there would seem to be more reason for completely closing out the bond issue upon the elimination of the liability and the substitution of shares in the enterprise.
Black concurs with this dissent on point Y but not on point III. As to point III, he agrees with the majority opinion. McMahon concurs with the dissent of Arundell on point III.