*415OPINION.
Van Fossan :The sole question in issue is whether the nonmatur-ing debentures issued by the petitioner are essentially certificates of preferred stock or are evidences of indebtedness. If the former, the semiannual payments thereon made by the petitioner are to be treated as dividends; if the latter, they constitute interest and are deductible as such under the statute.
In deciding questions of this character, our consideration is premised on certain basic principles, but the decision in each case turns upon the facts of that case. Northern Fire Apparatus Co., 11 B. T. A. 355; Proctor Shop, Inc., 30 B. T. A. 721; aff'd., 82 Fed. (2d) 792. The name given to a security is not determinative, but it is not to be ignored nor is it lightly to be assumed that the parties have given an erroneous name to their transaction. I. Unterberg & Co., 2 B. T. A. 274; Kentucky River Coal Corporation, 3 B. T. A. 644; H. R. DeMilt Co., 7 B. T. A. 7. The intention of the parties must be accorded great weight. Commissioner v. National Grange. *416Mutual Liability Co., 80 Fed. (2d) 816, affirming 31 B. T. A. 666. Therefore, we must look to the “debenture” itself; to the antecedent acts and the intent of the parties as expressed in the record; and to the records and actions of the petitioner reference the matter.
The respondent contends first that the debenture is so similar in terms to the preferred stock certificate as to be practically equivalent thereto and that, taken as a whole, the debenture exhibits stock ownership characteristics which “transcended all other interests.”
We do not agree. When the petitioner purchased all its preferred stock from the stockholders it terminated the relationship of corporation and preferred stockholders. The issuance of the debentures created a new and different contractual relationship with the purchasers of the debentures, the former stockholders. Their rights as preferred stockholders differed in certain basic respects from those which accrued as debenture holders.
The preferred stock was expressly so called and provided for payment of dividends. The holders of preferred stock had certain voting powers in event of contemplated dissolution, or on the question of the issue of additional preferred stock with preference over present preferred stock, or other change in preferences of preferred stock.
By express words appearing on the face of the debentures the corporation “acknowledged its indebtedness” and “promises to pay interest at the rate of Seven (7%) per cent per annum.” The debenture holders had no voting rights in any event and had no voice in management. The rights at law of a preferred stockholder differ materially from those of a debenture holder.
The word “debenture” is variously defined, but all to the same tenor — that it evidences a debt. Thus, in Bouvier’s Law Dictionary, “any instrument (other than a covering or trust deed) which either creates or agrees to create a debt in favor of one person or corporation or several persons or corporations or acknowledges such debt”; and in Funk and Wagnall’s Standard Dictionary, “an instrument, in the nature of a bond, given as an acknowledgment of a debt and providing for repayment out of some specified fund or source of income.”
Thus, though the terminology employed is only evidentiary and not conclusive, if any presumption exists, it is that the creation of an obligation styled a “debenture” is in recognition of a debt. Moreover, it would seem clear, on the face of the record, that the petitioner intended to create the debentures as an evidence of indebtedness. All of its preliminary resolutions and acts, together with the terminology used, so show. The corporate records and the treatment of the debentures in reports to the State of New York are consistent only with the debtor-creditor relationship.
*417The respondent’s argument that the debenture is essentially preferred stock is based chiefly on the facts that it does not contain a provision that the holder may unconditionally demand his money at a fixed time and that the “so-called” interest payment is payable out of the profits of the petitioner exclusively.
It has consistently been held that the provision that the obligation contains no fixed final due date or becomes payable at the option of the maker does not destroy its character as an indebtedness. In Helvering v. Richmond, Fredericksburg & Potomac Railroad Co., 90 Fed. (2d) 971, the court, in affirming the Board (33 B. T. A. 895) said:
The fact that the principal of the guaranteed stock is not demandable by the stockholder in the absence of default in the payment of the guaranteed dividends is not conclusive of a stock investment. In the light of the other attributes of the stock, this indicates rather a debt as to which there is a right of renewal so long as the interest is paid when due. There is nothing in the fact that the debt evidenced by the preferred stock is not payable at a fixed time which throws upon the holders thereof any of the risks with respect to the corporate enterprise which are characteristic of the position of the stockholder.
See also National Grange Mutual Liability Co., supra; Brush-Moore Newspapers, Inc., 37 B. T. A. 787.
To support bis contention tbat the provision requiring interest to be paid exclusively out of profits brands the debenture as stock, respondent relies on Commissioner v. O. P. P. Holding Corporation, 76 Fed. (2d) 11, affirming 30 B. T. A. 337; and Jewel Tea Co. v. United States, 90 Fed. (2d) 451.
In the O. P. P. Holding Corporation case the court affirmed the decision of the Board that the debenture bondholders in question wore in fact creditors. Though the discussion of the law by the court gives us some pause, we find no support for respondent’s position in the decision in this case.
In the Jewel Tea Co. case the question related to the deduction of premiums paid on retirement of preferred stock, the facts there being very different from those before us.
In H. R. DeMilt Co., supra, we had for consideration a case where the debentures bore interest payable out of the net profits arising from the business of the company. There we said that such fact was not controlling. We think that is equally true in the case at bar.
Bearing resemblances both to preferred stock and to corporate indebtedness, as the debentures do, the case is not free from doubt. Our problem is to determine to which type the resemblance is greater. Considering the apparent intent of the corporation, the expressed terms of the debenture, the factual and legal incidences of the same, *418and tlie absence of voting power or of otter right in corporate management, we are of the opinion that the debentures evidence the relationship of debtor and creditor and that the interest paid was, accordingly, deductible.
Reviewed by the Board.
Decision will be entered under Bule 50.
KeRN dissents.