dissenting: I can not agree with the conclusion reached in the majority opinion that there was not a reorganization of the Morgan Manufacturing Co. and the Dimension Manufacturing Co. A reorganization is defined by the statute (section 112 (g) (1) of the Revenue Act of 1936) as “(A) a statutory merger or consolidation.” The majority opinion recognizes that there was a valid merger or consolidation of the corporations involved under the laws of the State of North Carolina, but takes the position, nevertheless, that this merger or consolidation was not a statutory reorganization; that, in effect, there was a sale by the Dimension Manufacturing Co. of all of its assets to the Morgan Manufacturing Co. for the amount of the indebtedness of the vendor company to its stockholders.
I do not think that this conclusion is justified. Obviously, the agreement of the Dimension Manufacturing Co.’s creditor stockholders to release their interest in the new corporation, if the merger should take place and if the indebtedness should be paid off by the new corporation, was not a part of the merger, or reorganization, plan. It was to take place, if at all, after the merger was completed. It was not a condition of the merger agreement. Neither the new corporation nor its stockholders were in any way bound ever to pay off the indebtedness. If they had failed to do so, could it still be said that there was no reorganization?
The North Carolina statutes provide a complete procedure for the merger or consolidation of corporations. See sec. 1224 (a) to (i). The statutes make no distinction between a merger and a consolidation, the terms being used interchangeably. Carolina Coach Co. v. Hartness, 198 N. C. 524; 152 S. E. 489. The merger or consolidation takes place “When the agreement [of merger or consolidation] is signed, acknowledged, filed and recorded,” and thereupon the separate existence of the constituent corporations ceases and all of the assets and all of the debts and liabilities of the constituent corporations become the .assets, debts, iand liabilities of the new corporation. (Sec. 1224 (b).)
Speaking for the Supreme Court of North Carolina, Judge Adams said in Carolina Coach Co. v. Hartness, supra:
* * * but the instant the agreement is signed, acknowledged, filed, and recorded the separate existence of the constituent corporations ceases and the *700consolidating corporations become a single corporation in accordance with the agreement. Section 1224-b. When the separate existence of the constituent corporations comes to an end, the new corporation acquires not only the property, but the powers, privileges, and franchises of the old corporations, which thereafter have neither property nor franchise. It is provided that all interests of the old corporations shall thereafter be the property of the consolidated corporations as effectually as they had previously been the property of the constituent corporations. Section 1224-b.
If, then, the assets of the Dimension Manufacturing Co. became the assets of the petitioner (new corporation) by operation of law under the North Carolina statute, how can it be said that the petitioner purchased those assets from the Dimension Manufacturing Co. for the amount of that company’s indebtedness to its stockholders? How, either, can it be said that the debt of the Dimension Manufacturing Co. to its stockholders did not, through the merger, become the debt of the petitioner?
It is my view, which I think is clearly supported by the facts and the law, that there was, first, a completed merger or consolidation of the Morgan Manufacturing Co. and the Dimension Manufacturing Co. under the laws of the State of North Carolina, and therefore a statutory reorganization; that the stockholders of both old corporations became stockholders of the new corporation and the assets and debts of the old corporation became the assets and debts of the new corporation; and that, subsequently, and as a separate transaction, the former creditor stockholders of the Dimension Manufacturing Co., who had become creditor stockholders of the new corporation, sold their interests in the stock of the new corporation in consideration for the payment by the new corporation of its indebtedness to them. I think that the former stockholders of the Dimension Manufacturing Co. continued as bona fide stockholders of the new corporation from the effective date of the merger or consolidation, June 16, 1936, to July 7, 1936, the date on which they sold or relinquished their right to the stock in the new corporátion.
Prairie Oil & Gas Co. v. Motter, 66 Fed. (2d) 309, is strongly relied upon in the majority opinion. That case, however, involves a different factual situation and is not controlling in the instant case. Cf. also Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U. S. 462; West Texas Refining & Development Co. v. Commissioner, 68 Fed. (2d) 77.
There being a reorganization, it follows that under the provisions of section 113 (a) (7) the basis of the assets in question for depreciation purposes is the same in the hands of the petitioner as it was in the hands of the Dimension Manufacturing Co. See Fairbanks Court Wholesale Grocery Co. v. Commissioner, 84 Fed. (2d) 18.