*952OPINION.
Van Fossan :The sole issue is whether or not the petitioner, owner of common stock of Manufacturers, is taxable on the fair market value of pro rata rights, evidenced by warrants, to subscribe to the preferred stock of Manufacturers, when such rights were received.
It is unnecessary to indulge in an extended discussion of the case of Eisner v. Macomber, 252 U. S. 189, or its history, interpretation, and effect upon the taxability of stock dividends. It is sufficient to state that, following that decision, it was generally accepted that all stock dividends were exempt from taxation. See Koshland v. Helvering, 298 U. S. 441. Ensuing Revenue Acts (those of 1921, 1924, 1926, 1928, 1932, and 1934) specifically reflected that theory by providing that “a stock dividend shall not be subject to tax.”
While Congress was considering the Eevenue Act of 1936, the decision in the Koshland case was rendered. The Supreme Court there said:
Although Eisner v. Macomber affected only the taxation, of dividends declared in the same stock as that presently held by the taxpayer, the Treasury gave the decision a broader interpretation which Congress followed in the Act of 1921. Soon after the passage of that Act, this court pointed out the distinction between a stock dividend which worked no change in the corporate entity, the same interest in the same corporation being represented after the distribution by more shares of precisely the same character, and such a dividend where there had either been changes of corporate identity or a change in the nature of the shares issued as dividends whereby the proportional interest of the stockholder after the distribution was essentially different from his former interest. . [Citing United States v. Phellis, 257 U. S. 156; Rockefeller v. United States, 257 U. S. 176; Cullinan v. Walker, 262 U. S. 134; Marr v. United States, 268 U. S. 536.] Nevertheless the successive! statutes and Treasury *953regulations respecting taxation of stock dividends remained unaltered. We give great weight to an administrative interpretation long and consistently followed, particularly when the Congress, presumably with that construction in mind, has re-enacted the statute without change. The question here, however, is not merely of our adopting the administrative construction but whether it should be adopted if in effect it converts an income tax into a capital levy.
We are dealing solely with an income tax act. Under our decisions the payment of' a dividend of new common- shares, conferring no different rights or interests than did the old—the new certificates, plus the old, representing the same proportionate interest in the net assets of the corporation as did the old,—does not constitute the receipt of income by the stockholder. On the other hand, where a stock dividend gives the stockholder an interest different from that which his former stock holdings represented he receives income. The latter type of dividend is taxable as income under the Sixteenth Amendment. Whether Congress has taxed it as of the time of its receipt, is immaterial for present purposes.
Thereafter Congress enacted section 115 (f) (1) of the Revenue Act of 1936, which reads as follows:
SEO. 115. DISTRIBUTIONS BX CORPORATIONS.
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(f) Stock Dividends.—
(1) Genebal Rule.—A distribution made by a corporation to its shareholders in its stock or in rights to acquire its stock shall not be treated as a dividend to the extent that it does not constitute income to the shareholder within the meaning of the Sixteenth Amendment to the Constitution.
Article 115-7 of Regulations 94 states the matter in' positive, rather than negative, form and interprets that section as follows:
Abt. 115-7. Stock dividends.—A distribution made by a corporation to its shareholders in its stock or in rights to acquire its stock shall be treated as a dividend to the full extent that it constitutes income to the shareholders within the meaning of the sixteenth amendment to the Constitution. * * *
Dividends are includible in gross income under the broad provisions of section 22 (a) of the Revenue Act of 1936.1 Subdivision (d) of that section is as follows: “Distributions by Corporations.— Distributions by corporations shall be taxable to the shareholders as provided in section 115.” Section 115 (a) defines the term “dividend.” We agree with respondent’s interpretation of section 115 (f) (1) that, while exemptive in phraseology, its effect is to include in taxable dividends rights to acquire stock (represented here by assignable warrants), provided only they are not exempt on Consti*954tutional grounds. That this interpretation was intended by the Congress is clearly evident when we read section 27 (e) of the Revenue Act of 1936 dealing with dividends paid credits. It reads:
SEO. 27. CORPORATION CREDIT POR DIVIDENDS PAID.
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(e) Taxable Stock Dividends.—In case of a stock dividend or stock right which is a taxable dividend in the hands of shareholders under section 115 (f), the dividends paid credit with respect thereto shall be the fair market value of the stock or the stock right at the time of the payment.
In John M. Keister, 42 B. T. A. 484, a case arising under the 1936 Act, we held that a stock dividend paid in preferred stock to holders of common stock was a taxable dividend. Koshland v. Helvering, supra. The stockholder’s right to purchase new stock is essentially analagous to a stock dividend. Miles v. Safe Deposit & Trust Co., 259 U. S. 247.
In Palmer v. Commissioner, 302 U. S. 63, addressing itself to this general question, the Supreme Court said:
On the other hand, such a sale, if for substantially less than the value of the property sold, may be as effective a means of distributing profits among stockholders as the formal declaration of a dividend. The necessary consequence of the corporate action may be in substance the kind of a distribution to stockholders which it is the purpose of section 115 to tax as present income to stockholders, and such a transaction may appropriately be deemed in effect the declaration of a dividend, taxable to the extent that the value of the distributed property exceeds the stipulated price. * * *
In the case at bar the new stock to be purchased was the preferred stock .of Manufacturers. The purchasing of that stock by the common stockholders at less than its fair market value would have resulted in income to them measured by the excess of such fair market value over the amount paid by them for the stock. The fair market value of the warrants represented a portion of that excess value. See sec. 115 (j), Revenue Act of 1936. See also sec. 27 (e), Revenue Act of 1936.
The warrant received by the petitioner represented a property right, salable and actually sold by its owner. That it had a fair market value is agreed. Under the Koshland decision and under the provisions of section 115 (f) (1) it was free from taxation only if it came within constitutional prohibitions.
The warrants under consideration are of a different type from common stock. They are more closely related to the convertible preferred stock. In our opinion, they represent inherently taxable dividend distributions as contemplated by section 22 (a) and (d), defined and delimited by section 115, and as determined by controlling decisions. Their constitutional immunity to taxation has not been established.
The petitioner cites and relies upon Palmer v. Commissioner, supra. That case was quite different. It arose under the 1928 Revenue Act, *955which had no section comparable to section 115 (f) (1). The Supreme Court sustained the holding of the Board that the distributions of rights to subscribe to the stock of another corporation were sales of such stock by the issuing corporation to its stockholders and were not dividends. The facts in that case were treated from the viewpoint of the selling corporation and on the basis of a sale. They did not bring the decision within the ambit of section 115 (f) (1) and thus the discussion there is not in point.
Reviewed by the Board.
Decision will be entered for the respondent.
SEC. 22. GROSS INCOME.
(a) General Definition.—“Gross Income” includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever.