dissenting: I must dissent from the view expressed in the majority opinion that a corporation doing an industrial loan business under the Virginia statute is comprehended within the defini*1208tion of bank under section 104, Revenue Act of 1936. Staunton Industrial Loan Corporation v. Commissioner, 120 Fed. (2d) 912, so bolds, but witb all respect I point out that the opinion therein is, in effect, based upon only a part of the statutory definition in section 104 in that the court concludes in substance that the industrial loan corporation involved was a bank because it was a corporation “a substantial part of the business of which consists of receiving deposits and making loans and discounts”; whereas although a bank to come within section 104 must so receive deposits and make loans and discounts, it is earlier in the section and primarily defined as follows: “As used in this section the term ‘bank’ means a bank or trust company incorporated and doing business under the laws of * * ⅛ any State * * In other words, section 104 requires a bank to be one under the laws of the state, and not merely any institution a substantial part of the business of which is receiving deposits and making loans and discounts. The requirement that the bank be a bank incorporated and doing business under the laws of the state can not be ignored, and a bank incorporated and doing business under the laws of a state is one incorporated and doing business under the banking laws of the state—which, as the opinion of the court in the Staunton Industrial Loan Corporation, supra, says, is not true of an industrial loan corporation: “The laws of Virginia, for reasons which that State apparently thinks are compelling, draw a definite line between ‘banks’ and ‘industrial loan associations.’” Neither the petitioner in the instant case nor the petitioner in the Staunton Industrial Loan Corporation case was “a bank * * * incorporated and doing business under the laws of * * * any State * ⅜ for the laws of Virginia denied them the status of a bank. To hold that, though not a bank within the meaning of the Virginia statute, the industrial loan corporation is a bank within the meaning of section 104 of the Revenue Act of 1936 is to read the section as saying: “As used in this section the term ‘bank’ mean a corporation incorporated and doing business under the laws of * * * any State * * * a substantial part of the business of which consists of receiving deposits”, etc. Section 104 does not so read, but requires that for the purpose of that section the term- “bank” not only means a bank, and a bank receiving deposits and making loans and discounts, but a bank incorporated and doing business under the laws of the state. A bank can incorporate and do business under the laws of a state only by complying with the banking laws of that state and not under general laws of incorporation. Banking powers are not conferred by a certificate of incorporation under a general corporation act. McCarter v. Imperial Trustee Co., 72 N. J. L. 42;
*120960 Atl. 223. In my opinion, the definition in section 104 pointedly includes therein the requirements made of a bank by a state, and under the thought of United States v. Pelzer, 312 U. S. 399, “The language or necessary implication of the section involved makes its application dependent on state law.” Unless this is true, I find no reason why section 104 refers to the law of the state. Certainly the language of section 104 does not indicate a definition of “bank” different from that set by state statute, in specifically referring to the state statute; and, since no different definition is furnished, it is plain that the definition furnished by state statute is intended. Nor does reference by section 104 to the banking law of the state militate against a “nation-wide scheme of taxation uniform in its application.” In United States v. Cambridge Loan & Building Co., 278 U. S. 55, the definition of building and loan association was held to be dependent upon the law of the state: “The statutes speak of ‘domestic’ associations, that is, associations sanctioned by the several States. They must be taken to accept with the qualifications expressly stated what the States are content to recognize, unless there is a gross misuse of the name. The State of Ohio has recognized and still recognizes the respondent as belonging to the class which its name indicates.” In other words the Federal statutes are to be read as defining building and loan associations as defined by the state statute. It was therefore held that the association involved was not a mere money-making institution like a bank, but was exempt under the Federal Eevenue Acts of 1918 and 1921, section 231, as a domestic building and loan association, although it had power under state law to borrow money and loan to outsiders. Such was the effect given to a state statute defining the entity sought to be taxed. Similarly in the instant case the scheme of taxation simply conforms to all banks recognized by state or national law, but excludes those institutions not recognized as banks by state or national law, for, having referred to the state statutes just as the building and loan statute did by use of the word “domestic” (and even more clearly), the Federal statute “must be taken to accept * * * what the States are content to recognize.” To do otherwise seems to place on a parity with banks which comply with state or national law, corporations definitely excluded from that category.
In my opinion, section 104 was definitely intended to set the state or national law as to banks as a standard for those escaping, as banks, the surtax imposed by section 14 and the normal tax imposed by section 13 of the Eevenue Act of 1936, and that it was never intended to include corporations unable to comply with statutory banking requirements.
*1210I note that in Magruder v. Safe Deposit & Trust Co. of Baltimore, 121 Fed. (2d) 981, that United States Circuit Court of Appeals for the Fourth Circuit construed section 117 (d), Revenue Act of 1934, as to a “bank or trus| company incorporated under the laws of the United States or of any state or territory, a substantial part of whose business is the receipt of deposits”—in effect the same definition involved in section 104 (a), Revenue Act of 1936, herein involved; and that inter alia the court said: “We entertain no doubt that the taxpayer is a ‘trust company incorporated under the laws’ of Maryland; but we do not think it can qualify under the second and equally essential [italics supplied] clause of the exempting statute : ‘a substantial part of whose business is the receipt of deposits.’ ” This seems to me to be not only a recognition that, as above expressed, both parts of the statute are equally essential, but some recognition of the state statute as criterion.
SterNhagbN, Murdock, Leech, TurNer, Hjll, and Oppek agree with this dissent.