dissenting.
I respectfully dissent.
This is a tax case. It is governed by Chapter 2 of Title 67 of Tennessee Code Annotated (commonly known as the “Hall Income Tax Act”), particularly sections 67-2-102 and 67-2-104(k) thereof. Contrary to the impression left from reading the majority’s opinion, this tax case is not governed by the Tennessee Business Corporation Act, which became effective in 1988.
The primary issue before the Court in this case is the same issue that was before the Court in Fidelity-Bankers Trust Co. v. McCanless, 181 Tenn. 476, 181 S.W.2d 747 (1944). The Court stated that issue as follows:
“The sole question presented is whether certain dividends paid to the complainant as a stockholder were paid out of earnings or surplus, or whether they were paid out of capital ...”
181 S.W.2d 747, at 748.
This Court stated in Lawrence v. MacFarland, 209 Tenn. 376, 354 S.W.2d 78 (Tenn 1962), that the determination whether a distribution is from profits (and thus taxable) or from capital (and thus not taxable) is made by reference to the distributing corporation’s activities. The Court said:
“Whether or not the distribution made by dividends is from capital or profits is determined, of course, from the standpoint of the corporation making the distribution rather from the standpoint of the stockholder receiving the same. The profits, of course, that the stockholder receives only become income of the stockholders when they are distributed as dividends (Emphasis added.)
354 S.W.2d 78, at 81.
The fact that the source of the cash that was distributed by Shoney’s, Inc. was a loan to the corporation is irrelevant in determining whether the distribution was paid from earned surplus. As this Court stated in Lawrence v. MacFarland, supra:
“It was the intention of the Legislature in enacting this law, the Hall Income Tax Law, to tax the total amount of revenue produced by stocks and bonds and that in passing the law the Legislature clearly did not intend in the administration of the law that the administrators thereof have the burden of tracing dividends to the source — the contrary is true.” (Emphasis added.) 354 S.W.2d 78, at 80.
Our previous decisions have recognized that “earned surplus” is a measure of a corporation’s cumulative net profits, less its pri- or distributions out of same. The Court has not, however, undertaken to provide a precise formula for quantifying the amount of a corporation’s earned surplus.
The majority dismisses the holdings of this Court’s prior decisions dealing with the taxation of dividends under the Hall Income Tax, apparently under the illusion that the 1988 enactment of the Tennessee Business Corporation Act, which changed Tennessee’s corporate law, effected amendments to this state’s tax statutes. That misunderstanding is reflected in the following statement in the majority opinion:
“And, contrary to the taxpayer’s insistence, the Court’s prior decisions (under the Hall Income Tax Act) limiting income subject to taxation to those distributions from earned surplus, were solely a reflection of the prior statute’s limitation of taxable distributions to earned surplus.” (Emphasis in original.)
The precursors of T.C.A. §§ 67-2-102 and 67-2-104(k) were included in the Hall Income Tax Act when it was adopted by the General Assembly in 1931. The provisions of *400these tax statutes have not been modified in a manner that is pertinent to the issues before the Court since they were enacted.
The majority makes much of the fact that the distribution from Shoney’s, Inc. to Annie Grigsby Dobson was “a direct result of and in direct proportion to her stock ownership, that Shoney’s is an ongoing corporation, that after the distribution she continued to hold the same amount of stock, and that she is in a position to receive future returns on her stock.” These facts merely establish that the distribution was with respect to her stock (and thus subject to tax to the extent the distribution was from “earned surplus”), rather than in exchange for her stock. Distributions in exchange for stock are not subject to the Hall Income Tax on dividends, without regard to the amount of the distributing corporation’s earned surplus. Gallagher v. Butler, 214 Tenn. 129, 378 S.W.2d 161 (1964).
The majority’s disposition of this particular ease is clear, but the implication for future cases involving the taxation of dividends under the Hall Income Tax Act is not. Has the majority held that all distributions with respect to stock are taxable? Are all distributions that are authorized under the Tennessee Business Corporation Act taxable? Are distributions taxable only to the extent they are attributable to earned surplus, but with earned surplus being computed by taking into account hypothetical sales of corporate assets at imaginary prices? The majority’s answer to these questions — “all distributions by way of dividends, except the return of capital” — illustrates the confusion that follows from deciding a tax ease by using an inapplicable body of law.
I would abide by this Court’s earlier decisions and hold that a distribution with respect to stock constitutes “incomes derived by way of dividends from stocks” for purposes of T.C.A. § 67-2-102 only to the extent that the distribution is “out of earned surplus” under T.C.A. § 67-2-104(k). For purposes of the Hall Income Tax, I would equate a corporation’s earned surplus with its accumulated and current “earnings and profits” for federal income tax purposes. This would make Tennessee’s taxation of corporate dividends consistent with the treatment provided by the Internal Revenue Code and by other states that impose income taxes.