dissenting: Reasoning from the language of section 115 (f) (1), of the Revenue Act of 1936, and applying to stock rights what was said by the Supreme Court in Koshland v. Helvering, 298 U. S. 441, as to the nature and character of stock dividends, the Board has concluded that the issuance by the Manufacturers Trust Co. to its common stockholders of rights to acquire preferred shares constituted the payment of a dividend on the common stock. In my opinion, the Board has drawn inferences from section 115 (f) (1) that are not justified, and has attempted to apply the views expressed in Koshland v. Helvering to matters of an entirely different-character and substance from that dealt with in that case.
The term “dividend” is defined by section 115 (a) of the statute, and the language of section 115 (f) (1) does not in any way indicate an intention on the part of Congress to extend the term “dividend” beyond the confines of section 115 (a). It merely provides that to the extent that stock rights do not constitute income within the meaning of the Constitution they are not to “be treated as a dividend.” It appears, therefore, that section 115 (f) (1) does not expand but limits the scope of section 115 (a). Section 115 (a) defines a dividend as “any distribution made by a corporation to its stockholders, whether in money or in other property, (1) out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings or profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.” Accordingly, the issuance of stock rights must first be found to be a distribution by a corporation to its stockholders in money or in other property and out of the earnings for the taxable year or earnings accumulated after February 28, 1913. Until and unless the issuance of stock rights is found to be such a distribution, there is no occasion to consider the applicability of section 115 (f) (1).
*956Citing Miles v. Safe Deposit & Trust Co., 259 U. S. 247, for the proposition that a stockholder’s rights to purchase new stock are “essentially analogous to a stock dividend”, the Board concludes that the income tax effect of the issuance of stock rights parallels that of the payment of a stock dividend. In so doing, however, it has failed to consider the fundamental differences between stock rights and stock dividends or to show how the mere issuance by a corporation to its stockholders of a right to subscribe for and acquire additional shares, even though they be of a different class from the stock on which the rights were issued, effects any distribution “in money or in other property * * * out of its earnings or profits.” Speaking of the effect of the issuance of stock rights, the Supreme Court, in that same Miles v. Safe Deposit & Trust Co. case cited in the majority opinion, said: “It is evident, we think, that such a distribution in and of itself constituted no division of any part of the accumulated profits or surplus of the company, or even of its capital.”
The Board also cites and quotes from the opinion of the Supreme Court in Palmer v. Commissioner, 302 U. S. 63, to the effect that a sale of property by a corporation to its stockholders “if for substantially less than the value of the property sold, may be as effectively a means of distributing profits among stockholders as the formal declaration of a dividend.” While our case does not involve the sale of any property by a corporation to its stockholders and that case did not involve the issuance by a corporation to its stockholders of rights to acquire additional shares of its own stock, but involved instead a distribution by a corporation to its stockholders of rights which it held to purchase shares of stock in an entirely different corporation, the Court in its opinion did discuss the nature and character of stock rights, and the views there expressed are in my opinion clearly applicable here. The Court said:
The mere issue of rights to subscribe and their receipt by stockholders is not a dividend. No distribution of corporate assets or diminution of the net worth of the corporation results in any practical sense. Even though the rights have a market or exchange value, they are not dividends within the statutory definition. Cf. Miles v. Safe Deposit & Trust Co., 259 U. S. 247, 42 S. Ct. 483, 66 L. Ed. 923; Helvering v. San Joaquin Co., 297 U. S. 496, 56 S. Ct. 569, 80 L. Ed. 824; Helvering v. Bartlett, supra. They are at most options or continuing offers, potential sources of income to the stockholders through sale or the exercise of the rights. Taxable income might result from their sale, but distribution of the corporate property could take place only on their exercise. * * . *
It is to be noted in the instant case that, even though the stock rights here in question were later sold and the petitioner thereafter realized $13,728.04 from the sale thereof, we are not here determining the income effect of the sale of the rights or of their exercise, but the income effect of their issuance by Manufacturers Trust Co. and their receipt by the *957petitioner. What was said by the Supreme Court in Palmer v. Commissioner, supra, as to the nature and character of stock rights, it seems to me, is fundamental. They were at the most options or continuing offers to the petitioner until sold or exercised, or until their expiration without sale or exercise, and in no sense of the word may be said to have been a distribution of corporate assets, earnings or capital, or to have resulted in the diminution of the corporate worth. These characteristics in my opinion make the pronouncements in Koshland v. Helvering, supra, wholly inapplicable, in that the issuance of the rights alone could in no sense give “the stockholder an interest different from that which his former stockholdings represented”, and, as was said in Miles v. Safe Deposit & Trust Co., supra, “the subscription right of itself constituted no ganq profit or income taxable without apportionment under the Sixteenth Amendment.” Accordingly, I desire to note my dissent.
Arundell, Smith, Black, Leech, and Mellott agree with this dissent.