dissenting:
The Mead Corporation is contesting the imposition of a tax amounting to 50 percent of its net income. The authority for that imposition is said to be section 104 of the Revenue Act of 1928. In United Business Corporation of America, 19 B. T. A. 809; affd., 62 Fed. (2d) 754; certiorari denied, 290 U. S. 635, the Board held that a similar provision, authorizing just half this tax, was “highly penal.” This language was then used: “While the plain intent of such a statute must be given full effect, it should be strictly construed and should not be extended to cover cases which do not fall within its letter.” Is the Mead Corporation “within the letter” of section 104, supra ? I think not.
The tax, of course, can not be supported except upon a finding that the Mead Corporation was “formed or availed of for the purpose of preventing the imposition of the surtax upon its shareholders * * *.” (Emphasis supplied.) That fact can not be found. The majority opinion does not find it. Rather, it finds that “The petitioner was formed and availed of for the purpose of avoiding the imposition of surtax upon the members of the Mead family, particularly George W. Mead and his wife, Ruth W. Mead.” Then, after a considerable discussion, it concludes, as a matter of law, that, for the purposes of the statute, the Mead family, and those mentioned particularly, were the shareholders of the Mead Corporation.
The necessary premise for that conclusion is either that the corporate entity of the Securities Corporation be ignored, or the words “its shareholders” be construed to mean the shareholders of the Securities Corporation. Neither premise is sound.
The corporate entity of Securities Corporation can not be ignored here any more than that of the Mead Corporation. They are both going corporations. The rule is well settled that neither a purpose to avoid income taxes nor the ownership of all the stock of a corporation by one family or person affords sufficient reason to disregard the entity of the corporation. Burnet v. Commonwealth Improvement Co., 287 U. S. 415; Burnet v. Clark, 287 U. S. 410; Dalton v. Bowers, 287 U. S. 404; Klein v. Board of Supervisors, 282 U. S. 19; Jones v. Helvering, 71 Fed. (2d) 214; Helvering v. Gregory, 69 Fed. (2d) 809; affd., 293 U. S. 465; Nixon v. Lucas, 42 Fed. (2d) 833; Consumers Construction Co. v. Commissioner, 94 Fed. (2d) 731; James Lee Johnson, 37 B. T. A. 155; George W. Griffiths, 37 B. T. A. 314; General Securities Co., 38 B. T. A. 330. The only alleged infirmity which might be said to have affected the Securities Corporation is that it “was formed or availed of for the purpose of preventing the imposition of the surtax upon its shareholders.” But the existence *708of that same infirmity, in tbe formation or use of the Mead Corporation, is the sole premise for the disputed tax against that corporation, as a corporation. Section 104, supra, recognizes the Mead Corporation as a corporation. See Bands, Inc., 34 B. T. A. 1094. A fortiori, the corporate entity of Securities Corporation must be recognized.
That such recognition was intended here is emphasized in the Eevenue Act of 1934, section 102. The imposition of the tax upon the corporation is there authorized if it is “formed or availed of for the purpose of preventing the imposition of the surtax upon its shareholders or the shareholders of any other corporation.” (Emphasis supplied.)
However, as I understand the majority opinion, it attempts to avoid ignoi’ing the entity of the Securities Corporation. It does this by suggesting that, for present purposes, the shareholders of that corporation are the equitable owners of its assets, composed of the stock of petitioner; or that, because of their “rights of direction, control, and management” of those assets, through control of the Mead Securities Corporation, the shareholders of that corporation are the shareholders of the petitioner. The only authorities cited, possibly requiring comment, are State ex rel. Miller v. Loft, Inc., 156 Atl. 170, and Munson Steamship Line v. Commissioner, 77 Fed. (2d) 849. The first was a case in the lower courts of Delaware involving the right of a shareholder to inspect the corporate books. A sufficient answer to anything that was there said would seem to be an excerpt from the opinion of Justice Holmes in Klein v. Board of Supervisors, supra:
* * * But it leads nowliere to call a corporation a fiction. If it is a fiction, it is a fiction created by law with intent that it should be acted on as if true. The corporation is a person and its ownership is a nonconductor that makes it impossible to attribute an interest in its property to its members. Donnell v. Herring-Hall-Marvin Safe Co., 208 ü. S. 267, 273. * * *
See Rhode Island Trust Co. v. Houghton, 270 U. S. 69; Eisner v. Macomber, 252 U. S. 189; Gibbons v. Mahon, 136 U. S. 549.
In the Munson Steamship Line ease, supra, the petitioner’s ownership of the stock of the subsidiary company Avas not the only premise of the decision. The court supported its reA^ersa! of the Board, on the absolute measure of direct control of the ships of the subsidiary and their earnings, exercised by the parent, upon the basis of which peculiar facts, it then disregarded the corporate entity of the subsidiary. Here no such direct measure of control existed. And, as I think has been amply demonstrated, the corporate entity of Mead Securities Corporation can not consistently be ignored. Then again, and of the highest importance, the court there was construing a law which, because it sought to grant a benefit to the taxpayer, was liberally construed. Here the exact converse situation exists. We are *709construing a “highly penal” statute which “should be strictly construed and should not be extended to cover cases which do not fall within its letter.” United Business Corporation of America, supra.
The majority opinion holds that the meaning of “its shareholders” as used in section 104, supra, is ambiguous. It then proceeds to construe the legislative intent of the section. In so doing, it uses the history of the section, other legislation, committee reports and data, the source of all of which is outside the disputed statute. The opinion then concludes that the shareholders of the Securities Corporation are within the meaning of “its shareholders” as used here. Helvering v. Stockholms Enshilda Bank, 293 U. S. 84, is cited as its authority. But, assuming “its shareholders”, as used in this section, is ambiguous, we are even then limited in our construction of that expression to “a meaning consonant” with the meaning of “its shareholders.” Helver-ing v. Stockholms Enshilda Bank, supra; Caminetti v. United States, 242 U. S. 470. In that case the Supreme Court held that the words “obligations of the United States” might be construed as having one meaning in one section of the statute and another meaning in another section of the same statute, so long as such a legislative intention was properly disclosed. But the Court there did not construe “obligations of the United States” to include obligations of Canada or those of any obligor other than the United States. Thus, assuming ambiguity here, “its shareholders” can not be construed to mean the shareholders of any corporation other than the Mead Corporation upon the authority of that case nor of any other, so far as I know.
However, “its shareholders,” as used in section 104, supra, is not ambiguous. It can mean only the shareholders of the corporation against whom the tax is imposed. Any study of the section, itself, discloses this beyond question. If the slightest doubt existed, it is convincingly removed by the administrative provision under which the Commissioner or any collector may require the corporation to furnish “a correct statement of such gains and profits and the names and addresses of the individuals or shareholders who would be entitled to the same if divided or distributed, and of the amounts that would be payable to each.”1
The respondent, in his regulations construing section 220 of the Bevenue Act of 1921, which was the first enactment of this provision, recognized that “its shareholders” included only the shareholders of the taxed corporation.2 Those regulations never attempted to include within the scope of a statute, a corporation formed or used to prevent the imposition of surtax upon the shareholders of any other corpo*710ration. A mere reading of these regulations, in their entirety, leaves no doubt of that. Congress reenacted section 220 of the Act of 1921, without material change, except in the tax rates, as sections 220 of the Eevenue Acts of 1924 and 1926 and section 104 of the Eevenue Act of 1928. Eespondent did not change his regulations under those acts.3 Those repeated reenactments, coupled with the consistent administrative interpretation of the provision, furnish compelling authority for this construction. New York, New Haven & Hartford Railroad Co. v. Interstate Commerce Commission, 200 U. S. 361; Komada v. United States, 215 U. S. 392; United States v. Hammers, 221 U. S. 220; Commissioner v. Pontarelli, 97 Fed. (2d) 793, affirming 35 B. T. A. 872; Reynolds Tobacco Co. v. Commissioner, 97 Fed. (2d) 302, reversing 35 B. T. A. 949; Squibb & Sons v. Commissioner, 95 Fed. (2d) 69.
Finally, such construction finds irresistible support in the fact that Congress in the Eevenue Act of 1934, section 102 (a), the counterpart of section 104 (a), supra, changed section 104 and specifically included “or the shareholders of any other corporation.” The Eeport of the Ways and Means Committee which accompanied the Eevenue Bill of 1934 significantly “pointed out” this change.4 Eespondent, in his regulations construing this later act, for the first time added a provision giving effect to the change.5
The Supreme Court said in Caminetti v. United States, supra:
* * * But, as we Rave already said, and it has been so often affirmed as to become a recognized rule, when words are free from doubt they must be taken as the final expression of the legislative intent, and are not to be added to or subtracted from by considerations drawn from titles or designating names or reports accompanying their introduction, or from any extraneous source. * * *
See also United States v. Standard Brewery, 251 U. S. 210; Adams Express Co. v. Kentucky, 238 U. S. 190.
The Board has recently recognized this rule in its application to a statute certainly no more ambiguous than section 104, supra, in Montague Miles c& Co., 38 B. T. A. 144.
There is no doubt about the meaning of “its shareholders” here. It means, only, the shareholders of the Mead Corporation. The only doubt is whether Congress meant to authorize the imposition of this tax upon the occurrence of another and wholly separate condition, not included in section 104. That doubt arises, not from anything in the statute, itself, but from sources outside the statute. But, as the *711Supreme Court said in Wisconsin Railroad Commission v. C., B. & Q. Railroad Co., 257 U. S. 563, at page 589: “Such aids are only admissible to solve doubt and not to create it.”
Assuming the existence of the necessary facts, it may have been- a legislative mistake that, under section 104, supra, the Mead Corporation should escape this tax. However, that mistake, particularly in such a highly penal statute, affords the Board no proper authority for supplying, as it seems to me the majority opinion does, what Congress omitted.
Van Fossan, Murdock., Black, Tyson, and Kern agree with this dissent.See. 220, Revenue Act of 1921; sec. 220 (c), Revenue Acts of 1924 and 1928, included in tile Revenue Act of 1928 as sec. 149 (c).
Regulations 62, art. 351.
Regulations 65, art. 351; Regulations 69, art. 351.
House Report 704 ; 730 Cong., 20 sess., p. 3 2.
“Regulations 86, art. 102 — 1.