(dissenting).
I agree with the majority opinion in the statement of legal principles which determine the excise tax liability of a corporation on the sale of real property. However, I do not agree with the conclusion of the majority that there had been no actual finalized plan of liquidation of the corporation nor actual distribution of assets to the stockholders prior to the sale of the shopping center and that the sale was within the corporate structure and subject to the excise tax. As I view the record, the evidence supports the chancellor in his finding that “a preponderance of the evidence is to the effect that the stockholders intended to liquidate the corporation, surrender its assets in return for the stock and sell the shopping center. . . . [TJhese intentions were carried out and the minutes of January 27,1969, which are in the record as Exhibit 3, reveal that the stockholders were aware of the mechanical transfer of title to the real estate owned by the corporation and did not act unreasonably and designated the corporation as their agent to transfer title to the real estate owned by the corporation, due to the obvious savings in real estate transfer fees.” (Emphasis supplied.) The plan to liquidate the corporation was adopted on January 27, 1969, and, on the same date, Mr. Berke endorsed his stock to the corporation and acknowledged receipt of fifty percent of the assets of the corporation as consideration for his stock. It was further set forth in the acknowledgement that the corporation was authorized to execute instruments for the sale of real estate as agent for Mr. Berke and the other stockholders. This method of transfer of corporate assets in the liquidation of a corporation was approved by this court as being one to which tax consequences will not attach. See Dattell v. Tidwell, 512 S.W.2d 550 (Tenn.1974).
I would affirm the decree of the chancellor and allow the appellee, Mr. Berke, to recover the corporate excise taxes assessed against him and paid under protest.