dissenting: I respectfully dissent from the conclusion reached by the majority opinion.
Section 115 (g) quoted in the majority opinion is a familiar statute and has been often construed by the Board and the courts. In Commissioner v. Cordingley, 78 Fed. (2d) 118, in construing and applying this statute the court, among other things, said:
* * * Under these acts it is the settled view of the Board of Tax Appeals that sums paid in retirement of stock were not taxable as dividends, unless the retirement was made in pursuance of a plan formed' at the time when the stock was originally issued or as a cloak for the distribution of earnings. * * *
See also Commissioner v. Quackenbos, 78 Fed. (2d) 156. To the same effect is our decision in Orie B. Kelly, 36 B. T. A. 507 (reversed on another point, 97 Fed. (2d) 915). These cases, I think, lay down *860ihe correct rule that section 115 (g) is only applicable where the cancellation or redemption of a corporation’s stock is made in pursuance of a plan formed at the time when the stock was originally issued, or, if there is no such plan, then where the disbursement is made as a cloak for the distribution of earnings.
Of course, it requires no authority to support the proposition that the Commissioner, having in his deficiency notice determined that the redemption of the stock in question was made in such a manner as to make the redemption essentially equivalent to the distribution of a dividend, the burden of proof to show to the contrary is on petitioners. Have they met that burden of proof? I think they have. It seems to me that they have proved that the increase of capital stock of the E. M. Peet Manufacturing Co. from $60,000 to $250,000 in 1931 was for entirely legitimate business purposes and that at the time the increase was made no plan was formed for the later retirement of all or part of the stock so as to make it essentially equivalent to the distribution of a dividend. Thus the first named device in the above mentioned cases was not present.
Even though it be conceded that when the stock in question was issued, there was no such plan formed, was its later redemption determined upon in 1935 nevertheless a mere cloak for the distribution of a dividend? I willingly concede that there can be such cases even where the original issue of the stock was for entirely proper and legitimate business purposes. See W. & K. Holding Corporation, 38 B. T. A. 830. I think, however, that petitioners in the instant case have proved an entirely legitimate business reason for the redemption of the 2,500 shares of stock in question in 1935 and that it was not done as a cloak for the distribution of earnings. Under these circumstances it seems to me that the redemption of the stock was a partial liquidation of the corporation as defined by section 115 (i) of the Eevenue Act of 1934 and should be taxed accordingly, and not taxed under section 115 (g) of the same act.
Leech agrees with this dissent.