dissenting: It is true, as the majority opinion points out, that the question in Gregory v. Helvering, 298 U. S. 465, was whether the transfer by one corporation of a part of its assets to another corporation for all of the stock of the latter was a reorganization within the meaning of section 112 (i) of the Bevenue Act of 1928 and the question in issue I of the instant case is whether the transfer of securities by three individuals to a corporation for preferred stock was a transfer within the meaning of section 112 (b) (5) of that act, but the distinction drawn is in my opinion a distinction without a difference in so far as the application of the statute is concerned. The only concern or purpose in applying any provision of the statute is to determine the tax effect, and the tax effect of compliance in any transaction with either of the above provisions of the statute is obviously a point of similarity and not of distinction and is that the gain or loss realized or sustained in the particular transaction is not to be recognized until the subsequent disposition of the stock acquired. Accordingly, the distinction that may be drawn between the exchange in Gregory v. Helvering and the exchange in the instant case, which is a distinction as to the form of the transactions and not as to tax effect, is of no significance because admittedly in both transactions there was literal compliance with the statute.
A provision corresponding to section 112 (b) (5) first appeared in the Bevenue Act of 1921. The Committee on Ways and Means, in reporting the bill which was later enacted as the Bevenue Act of 1921, said that the provision “if adopted, will by removing a source of grave uncertainty, not only permit business to go forward with the adjustments required by existing conditions but will also considerably increase the revenue by preventing taxpayers from taking colorable losses in wash sales and other fictitious exchanges.” It is thus apparent that Congress had in mind only actual and real busi*849ness transactions when it inserted the provisions under consideration in the income tax statutes. Furthermore, it anticipated that taxpayers indulging in fictitious exchanges would not be given the benefit of the statute.
In the Revenue Act of 1924 Congress, for the first time, separated and grouped in one section the provisions of the statute dealing with the recognition of gain or loss realized or sustained on exchanges of property. That part of the definition of the term “reorganization” construed in Gregory v. Helvering made its first appearance in that act. Keporting the measure to the House of Representatives, the Committee on Ways and Means stated: “It appears best to provide generally that gain or loss is recognized from all exchanges and then except specifically and in definite terms those cases of exchange in which it is not desired to tax the gain or allow the loss.” In a later paragraph of the report the Committee stated that Congress had theretofore “adopted the policy of exempting from tax the gain from exchanges made in connection with a reorganization in order that ordinary business transactions will not be prevented on account of the provisions of the tax law.” Among the exceptions to the general rule that gain or loss from all exchanges should be recognized and stated in identical terms were the exceptions stated in section 112 (b) (5) of the 1928 Act, with which we are here concerned, and in that part of section 112 (i), which was construed by the Supreme Court in Gregory v. Helvering. The exceptions are all on a basis of equality and certainly nothing is apparent to indicate that Congress had any thought or intention that literal compliance with one of the excepted provisions was sufficient to prevent recognition of gain while in the other it should be necessary that the exchange meet the requirements of the statute not only as to form, but also that it should have an actual and real business purpose. In applying section 112 (i) the Supreme Court, in Gregory v. Helvering, held that it was not enough that a transaction fall literally within the terms of the statute, and concluded that a transfer of assets by one corporation to another in pursuance of a plan having no relation to the business of either corporation was “outside the plain intent of the statute.”
I am unable to find any basis for holding that Congress actually did or intended to deal less strictly with taxpayers who seek to bring their transactions within the terms of section 112 (b) (5) than with those who seek to apply the terms of section 112 (i). Such, however, is the effect of the distinction drawn between Gregory v. Helvering and the instant case. To so hold is to say to taxpayers that gain realized on an exchange which meets the literal requirements *850of section 112 (b) (5) is not to be recognized even though the transfer has no relation to the business of either the transferor or transferee. But if the gain realized in a transaction described in section 112 (i) is to escape recognition, the transaction must not only satisfy that section as to formalities but must also serve a real business purpose. In my opinion Congress made no such distinction and the presence of a real business purpose is a prerequisite to the applicability of section 112 (b) (5) just as it is with section 112 (i).
As I read the facts, the transaction in this case, as in Gregory v. Helvering, served a tax purpose and not a business purpose. The securities were transferred to W. & K. for the sole purpose of permitting that corporation to apply the loss, which would result from their sale, against gain which it was known the corporation would realize during the taxable year in the course of its regular business. The retirement of the preferred stock was provided for at the time of the exchange and the retirement price was fixed at $292.82, an amount which was to the penny equivalent to the prorated fair market value of the securities transferred. The final sale of securities occurred on July 28, 1933, and on October 6, 1933, The preferred stock was retired with the proceeds of the sale. The facts and circumstances in my opinion indicate that there was no intention that the corporation would use the securities in its business or retain the proceeds for such use after the securities were sold and show that the transfer of the securities by the three petitioners to the W. & K. Holding Corporation was “not a transfer of assets * * * in pursuance of a plan having relation to the business” of either the transferors or the transferee. “The transaction upon its face lies outside the plain intent of the statute.”
For the reasons outlined, I respectfully express my dissent.
ArNold, Disnex, and Oppek agree with this dissent.