dissenting: The majority opinion is predicated upon the findings of fact that “petitioner was a mere holding or investment company”, and that “it was 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.” It is said that petitioner has the burden of proving a complete lack of the condemned purpose, and if it does not do so it must fail, regardless of what other purposes it may prove. The evidence submitted is, in my opinion, amply sufficient to meet the test thus laid down.
That petitioner was not “a mere holding or investment company” is clearly established by the record. A “mere” holding or investment company is obviously one whose sole function is to hold property or make investments. Petitioner may not fairly be placed in such category.- It was also a business or trading corporation, actively engaged during the taxable years in carrying on business operations for profit. During the year 1932 petitioner derived net profit from trading in securities in the amount of $55,280.99. Its total net profit for the year was $35,020.85. Thus, except for the profit realized from its business operations it would have had no income for that year subject to tax under section 104, but would have had a substantial loss representing interest paid and other expenses. For the year 1933 petitioner’s total net profits amounted to $23,740.71, which included $21,853.55 net gain from trading operations. For the year 1934 petitioner derived total net profits of $49,796.98, including net gain from trading in the amount of $31,059.40. So far as taxable income is concerned, these facts, it seems to me, indicate that during the years before us petitioner’s function as a holding or investment company was negligible and only incidental to its business operations, *861rather than exclusive. The admission of its counsel that petitioner is a holding or investment company, and that the prima facie presumption raised by section 104 (b) applies, to which reference is made in the majority opinion, appears to be a legal conclusion without support in the record. However, if it may be said that such presumption ever attached, it is sufficiently rebutted by the evidence.
The next question arising for consideration is whether petitioner was formed, or availed of in the taxable years, for the purpose of enabling its shareholders to escape surtax through the medium of permitting its gains and profits to accumulate instead of being divided or distributed. As suggested by respondent in his brief, it may well be that one of the primary purposes of organizing the petitioner corporation was to permit its shareholders to realize large losses deductible from their individual incomes through sales by them to it of securities which had depreciated greatly in value below their original cost bases. But such a purpose, if it existed, is not within the ambit of section 104, and we are not here concerned with that phase of the case.
The record contains no evidence which fairly indicates, in my opinion, that petitioner was either formed or availed of for the prohibited purpose, but on the other hand discloses affirmative and uncontradicted proof to the contrary. Blaffer testified in effect that he was advised by both his attorney and accountant that it would be necessary for the corporation to declare dividends whenever earnings were available, or subject itself to the penalty tax of section 104, and that in forming the corporation he had no purpose whatever of attempting to escape surtax through accumulation of the company’s gains and profits. He further testified at length as to the motives which actuated him in organizing the corporation.. A purpose to escape surtax through accumulation of gains and profits was wholly absent. The purposes as stated by Blaffer were both reasonable and sufficient to explain and justify his actions. We may not, therefore, disregard his testimony merely because he is an interested party; particularly so, when such testimony is supported by all the surrounding facts and circumstances. C. H. Spitzner & Son, Inc., 37 B. T. A. 511.
However, if it were true that petitioner was originally formed for the purpose stated in the statute, or as the majority opinion holds, the evidence is insufficient to overcome the prima facie presumption of the statute and respondent’s determination, still petitioner would not be subject to the penalty tax of section 104, because it had no accumulation of gains and profits in the taxable years which could lawfully be divided or distributed. For the same reason it can not be said that it was “availed of” for the prohibited purpose.
*862This brings us to tlie principal and most important question presented in this case, namely, whether a corporation whose capital has been lost or substantially impaired through depreciation in value of its capital assets to the extent of rendering it insolvent can accumulate gains and profits distributable as dividends prior to restoration of such impairment, and, if not, whether an insolvent corporation in such circumstances is nevertheless subject to the tax imposed by section 104.
At the close of the fiscal year 1932 petitioner owned assets of the fair market value of $801,841.38, and its total liabilities, other than capital, amounted to $1,761,598.73. Its current liabilities then exceeded the fair market value of its assets in the amount of $959,-757.35. It operated largely on money borrowed from brokers, and in 1932 of its total indebtedness it owed brokers the sum of $1,687,-563.48. On the same basis, petitioner’s current liabilities exceeded its assets in 1933 and 1934 by the amounts of $491,640.94 and $123,618.35, respectively. All the stocks and bonds owned by petitioner, which constituted its principal assets, were hypothecated with brokers as collateral security for loans, in addition to which petitioner’s accounts with the brokers were personally guaranteed by its stockholders.
Clearly* j>etitioner was insolvent throughout all the taxable years. It was insolvent in 1932, 1933, and 1934 to the extent of $959,757.35, $491,640.94, and $123,618.35, respectively, on the basis of current liabilities alone, in addition to capital stock liability. The impairment of its capital stock for each of those years was far in excess of the respective amounts above set forth. The value of its assets in each of the taxable years was insufficient to pay even the indebtedness owing to the brokers, and obviously it could not have continued to operate except by reason of the guaranteeing of its accounts by its stockholders. In these circumstances petitioner could not lawfully have declared and paid a dividend out of current earnings.
A corporation can not declare and pay a dividend when it is insolvent or when the payment thereof would render it insolvent. Maugham v. State, 11 Ga. App. 440; 75 S. E. 508; Fricks v. Angemeier, 53 Ind. App. 140; 101 N. E. 329; Montgomery v. Whitehead, 40 Colo. 320; 90 Pac. 509. A corporation must maintain its capital stock at its original value before any dividends may be lawfully paid. Crawford v. Roney, 130 Ga. 515; 61 So. 117; Coleman v. Booth, 268 Mo. 64; 186 S. W. 1021; Whittaker v. Amwell National Bank, 52 N. J. Eq. 400; 29 Atl. 203; Equitable Life Assurance Society v. Union Pacific Railroad Co., 212 N. Y. 360; 106 N. E. 92; Hutchinson v. Curtiss, 92 N. Y. S. 70; Cornell v. Seddinger, 237 Pa. 389; 85 Atl. 446.
With the exception of dividends in liquidation, a corporation can declare and pay dividends only out of net profits, or when such pay*863ment does not impair its capital stock. Mobile & Ohio Railroad Co. v. Tennessee, 153 U. S. 486; Main v. Mills, 6 Bliss. 98; Roberts v. Roberts-Wicks Co., 184 N. Y. 257; 77 N. E. 13; Berryman v. Bankers Life Insurance Co., 102 N. Y. S. 695.
Whether a corporation is solvent and has surplus or net profits out of which a dividend may be paid must be determined on the basis of the then actual cash or fair market value of its assets. Whittaker v. Amwell National Bank, supra; American Steel & Wire Co. v. Eddy, 138 Mich. 403; 101 N. W. 578; Siegman v. Electric Vehicle Co., 140 Fed. 117; Mobile & Ohio Railroad Co. v. Tennessee, supra; Gannon v. Wiscassett Mills Co., 195 N. C. 119; 141 S. E. 344. In the case last cited, the court said:
Manifestly, for tlie purpose of determining the amount to be declared and paid as a dividend, it is necessary that the true value of the assets, in cash, and not the mere book value, should be ascertained, for no dividend can be lawfully declared and paid except from the surplus or net profits of the business. * * * The terms “net profits” or “surplus profits” have been defined as what remains after deducting from the present value of the assets of a corporation the amount of all the liabilities including the capital stock. [Italics supplied.]
In Mobile & Ohio Railroad Co. v. Tennessee, supra, the Supreme Court defined “surplus” or “net profits” of a corporation as the difference between the total present value of its assets, after deducting losses and liabilities, and the amount of its capital stock. See also Crawford v. Roney, supra; Coleman v. Booth, supra; Hyams v. Old Dominion Copper Min. etc. Co., 82 N. J. Eq. 507; 89 Atl. 37; affd., 83 N. J. Eq. 705; 92 Atl. 588; Roberts v. Roberts-Wicks Co., supra; Northern Bank etc. Co. v. Day, 83 Wash. 296; 145 Pac. 182.
In Mangham v. State, supra, the Court of Appeals of Georgia held that the difference between the present value of all the corporate assets and the amount of all losses, expenses, other charges, and liabilities, including the capital stock, constitutes net earnings for the purpose of dividends, and in its opinion further stated:
* * * it is not possible for an insolvent corporation to lawfully declare and distribute a dividend, for the very simple reason that it can not have any surplus or net earnings as long as it is unable to pay its indebtedness. 5 Thompson on Corporations, § 5311. As dividends can only be declared and paid out of profits, it is clear that they can not be declared unless there are profits; and even if there are profits, still they can not be declared and paid where the corporation is clearly insolvent. 5 Thompson on Corporations, § 5383. See also Cabaniss v. State, 8 Ga. App. 129, 68 S. E. 849, where it is held by this court that no declaration of a dividend is lawful in a condition of insolvency or impairment of capital stock; for any profits that may be made must first be applied to the payment of the debts of the corporation and to the restoration of the capital stock.
In C. H. Spitzner & Son, Inc., supra, this Board held that, in determining whether accumulations of gains and profits are beyond the *864reasonable needs of a business, it is erroneous to compute a surplus based on cost of assets which are useful to the business only to the extent of their lower market value.
If petitioner in the instant case had distributed its gains and profits in the taxable years, such distribution would not only have been unlawful and in violation of generally recognized principles of corporation law, above referred to, but would have been in direct violation of Texas law. See art. 1847, vol. 3, Vernon’s Annotated Texas Statutes (Civil). In the circumstances shown, the gains and profits of the taxable years were certainly not beyond the reasonable needs of petitioner’s business, and I think it can not fairly be said under the facts that petitioner was “availed of” for the purpose of preventing the imposition of tax upon its shareholders through the medium prescribed by the statute.
I think it is too plain for argument that petitioner had no accumulation of “gains and profits” in the taxable years which could be lawfully divided or distributed. Coincidental with receipt, its net profits became capital, and such process must continue until impairment of its paid-in capital has been restored. Although a distribution (except in liquidation) could not lawfully be made, is an insolvent corporation in such situation nevertheless subject to the penalty tax of section 104?
The majority opinion points out “that by section 104 (d) it was open to the shareholders to treat their distributive shares of the corporation’s income as constructively received by them and within their taxable income even though it was deemed wiser for any reason that there should be no actual distribution.” This view, it seems to me, places an unreasonable and strained construction upon the statute. The provision referred to has no legitimate application here. Whenever a corporation has gains and profits which may be lawfully distributed as dividends, and the stockholders prefer for any reason that no actual distribution should be made, they may under the statute include their distributive shares in their own taxable income and thus avoid the making of a distribution and also the penalty tax of section 104. But here the corporation had no gains and profits which could be lawfully distributed. Did the Congress by the cited statute intend nevertheless to compel an unlawful distribution not of gains and profits but of capital equal to the amount of current earnings, or in the absence of a distribution to impose a penalty tax of 50 percent ? To justify the imputation of such a legislative intent, we must, in my opinion, find plainer and more mandatory language than is contained in any of the subdivisions of section 104.
Reference is made in the opinion of the majority to the cases of R. & L., Inc., 33 B. T. A. 857; affd., R. & L. Inc. v. Commissioner, 84 *865Fed. (2d) 721; A. D. Saenger, Inc., 33 B. T. A. 135; affd., Saenger, Inc. v. Commissioner, 84 Fed. (2d) 23; Rands, Inc., 34 B. T. A. 1094; and Nipoch Corporation, 36 B. T. A. 662, as supporting the conclusion reached therein. In neither Saenger, Inc., nor R. & L., Inc., was there an impairment of capital, nor in either was it shown that if it had distributed its current gains and profits there would have been an invasion of capital. Nor was it shown in either of those cases that the accumulation of the gains and profits was necessary to meet the reasonable needs of the business. Those cases are, therefore, clearly distinguishable on the facts from the case here, where the petitioner corporation required the use of large amounts of capital to carry on its business operations.
Rands, Inc., and Nipoch Corporation, supra, can not be distinguished on principle from the instant proceeding to the extent that they hold in effect that where a corporation’s paid-in capital has been diminished in excess of its current earnings through depreciation in value of its capital assets, such corporation may nevertheless be said to have been availed of for the purpose of preventing the imposition of surtax upon its shareholders through accumulation of its gains and profits, if not distributed as dividends. Such holding, I think, is erroneous, and, therefore, should not be followed in the instant case.
For the reasons above indicated, the decision in this case should be for the petitioner.
Smith agrees with this dissent.