(dissenting in part).
The question in this ease does not involve the earnings taxable to the corporation of which the decedent, Hoffman, was a stockholder, nor does it involve the computation of the earned surplus of the corporation for invested capital purposes, but involves the determination of the amount of appreciation in value of the property existing on March 1, 1913, over cost which was realized by the Democrata Cananea Sonora Copper Company during the period March 1, 1913, to March 12, 1917, which was exempt from tax in the hands of the stockholder when distributed to him by the corporation when it declared and paid a dividend of $286,997 on Mareh .12, 1917.
The solution of this problem, lies in keepiing in mind certain basic principles which are either specifically set out in tho statute or necessarily follow from a proper interpretation of it. It is not correct to say, as tho defendant contends, that the depletion allowable on a March 1, 1913, value in excess of the cost is to be disregarded in determining the earnings or profits subject to taxation in the hands of the distributee when a dividend ^distribution is made. In this ease appreciation in'value of the ore *292reserves existed at March 1, 1913, and, to the extent that it was thereafter from year to year realized, it became a part of the surplus available for distribution as a dividend, but free from, tax in -the hands of the stockholder.
Leaving out of consideration the question of exhaustion, if a corporation acquired an asset in 1908 at a cost of $200,000 which, on March 1, 1913, had a value of $500,000, there would be no taxable profit to the corporation in the sale of such asset in 1917 at $500,000. The result, however, of such transaction would be the creation of a surplus on the books of the corporation of $300,000 which would be available for distribution without an impairment of capital paid in, but a dividend paid from such surplus would not be taxable to the stockholder any more than a dividend paid out óf capital. If such sale be made for $300,000 instead of $500,000, there would again be no taxable profit to the corporation, but there would be a realization by the corporation of appreciation in value existing on March 1, 1913, to the extent of $100,000 which would constitute surplus to the corporation available for distribution as a dividend, but nontaxable in the hands of the distributees when distributed. When property is exhausted or used up. in the production of income, the theory of the' allowance of a deduction on account of such exhaustion is to consider that, through the exhaustion, there has been a gradual sale of property. United States v. Lndey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054. The same principles, therefore, would apply with respect tq the realization by the corporation subsequent to March 1, 1913, of appreciation in value existing on that date, whether realized by actual sale or through a depreciation or depletion allowance.
The foregoing conclusions not only follow from the statute, but also are Specifically provided for in the Commissioner’s regulations.
I think it cannot be questioned that when a dividend is paid prior to August 6, 1917, without a designation of surplus from which paid, such dividend will be considered to have been paid from the most recently accumulated undivided profits or surplus. I do not understand that the parties disagree as to this feature. We have, however, not only to determine what is the most recently accumulated earned surplus, but also to segregate such surplus as between taxable and nontaxable surplus when distributed. My disagreement with the majority in this case is with reference to the amount of the deficit or, as it should moire properly be designated under the statute, the “realized appreciation.” for the calendar years 1914 and 1915 to be charged against surplus in determining the amount exempt from taxation in the hands of the stockholder. This amount is shown as $74,181.41 for 1914 and $18,065.61 for 1915 in the majority opinion. Footnote 3. I think the amount for 1914 should be $27,-781.70, which is the amount of the operating" deficit after the deduction of depletion on cost, and that the amount for 1915 should be $17,991.63, which is the net earnings after the deduction of depletion on cost and $73.98 less than the difference between depletion on cost and depletion on the March 1, 1913, value. The realized appreciation in any taxable year is always the difference between the amount of depletion allowable on the March 1, 1913, value and that allowable on cost if the corporation has earnings in that amount. The realized appreciation in value existing on March 1, 1913, cannot exceed this amount in any one taxable year. There must be some rule for measuring the portion of the increase in value existing on March 1, 1913, which is earned or realized in subsequent taxable years. If there remain no earnings after deduction of depletion on the basis of cost, there can be no realization in that year by the corporation of any increase in value existing on March 1, 1913, which can be charged against surplus to determine the amount which is exempt from tax to a stockholder when a dividend is paid. Considering the period March 1, 1913, to December 31, 1913, and leaving out of consideration for the present the operating deficit at March 1, 1913, we find earnings for that peripd of $132,533.71, which would represent accumulated earnings or a proper addition to surplus in that amount. However, in addition to the fact that this amount is insufficient to make up the deficit existing March 1, 1913, and thus create a surplus from which a dividend might be declared, the entire amount does not constitute a taxable dividend to the stockholder when paid for the reason that such amount had been determined without taking into consideration the excess amount of depletion allowable on the March 1, 1913, value of the corporation’s ore reserve over the depletion allowable on cost, or the part of the appreciation existing at March 1,1913, which was realized during the period March 1 to December 31, 1913.
When the appreciation in value realized is taken into consideration it will be found that of the profits realized from March 1 to De*293comber 31,1913, in tbe amount of $132,533.-71, $83,220.77 constitutes appreciation existing at March 1,1913, which is now realized but when distributed as a dividend is exempt from tax to the stockholder, and $49,312.91 constitutes earnings or profits whieh are taxable to the stockholder when distributed.
In 1914 a different situation exists, for tbe reason that there is an operating loss for that year when the depletion deduction is computed on cost without considering a deduction based on the appreciated March 1, 1913, value. In such a ease, without more evidence as to the nature of the operating loss, it cannot be said that there was any appreciation realized, but rather a loss of $27,-781.70 sustained after deduction of depletion on cost, and there was therefore a loss in that year of a portion of the increase in value over cost existing on March 1, 1913. This operating loss of $27,781.70 existed after the deduction of depletion on the basis of cost, which, however, served to decrease accumulated earnings and also the earnings available for taxable distribution.
And still another situation exists for 1915, in that there is a profit when a depletion deduction is allowed on cost and a loss when the depletion is computed on the March 1, 1913, value. As above stated, appreciation may not he considered as realized by the corporation when there is a loss after the allowance of depletion on cost, and therefore the appreciation realized would be limited to the amount of the operating profit over cost depletion. At the same time there would be an increase in surplus of the amount of tho operating profit but no change in the amount available for distribution as taxable dividends. The situation in 1916 is analogous to that already discussed for 1913, and tho same principles would apply in determining the increase in surplus, amount available for taxable distribution, and appreciation realized. Based upon the foregoing' considerations, tho most recently accumulated earnings available for distribution when the dividend of $286,-997 was paid on March 12, 1917, are shown in summary form, as follows:
*294From the above it appears that at March 12, 1917, when the dividend in question of $286,997 was paid, the earnings accumulated since March 1, 1913, available for taxable distribution, were $236,891.97, and accordingly the remainder of $50,105.03 must be considered to have been paid from appreciation in, value existing on March 1,1913, realized by the corporation subsequent to that date, and exempt from tax to the stockholder when distributed.
The majority opinion holds that the amount of realized appreciation distributed on March 12,1917, and exempt from tax was $71,636.27, a difference of $21,531.24, which is the exact amount which I show in the f ore-going computation as the “earnings since March 1,1913, available for taxable distribution.” '
As hereinbefore pointed out, an operating loss of $27,781.70 occurred in 1914 when depletion was allowed on cost, and I have reduced the earnings since March 1,1913, available for taxable distribution in that amount, thus leaving taxable earnings at that time of the aforementioned difference, for the reason that I do not think a loss could result in a realization of appreciation. The deficit of $74,181.41 used in the majority opinion for the period January 1 to December 31, 1914, is computed by allowing as a deduction not only cost depletion, but also depletion on the appreciation in value existing on March 1, 1913; that is, realized appreciation. The majority opinion uses this amount of $74,-181.41 to absorb the profit of $49,312.94 in 1913 and holds that the remainder must be absorbed out of the March 1,1913, value. I am of opinion that appreciation cannot be realized through a loss, even although there were accumulated earnings of a prior year from which the loss might be deducted; and therefore I think the available taxable earnings for 1914 should be reduced only by the loss of $27,781.70 strived at without allowing a deduction for depletion on appreciation because there were no earnings after cost depletion out of which the corporation could realize any appreciation in that taxable period. The computation m the majority opinion not only increases the loss through a deduction for depletion on appreciation, that is, realization of appreciation, but also uses a part of this “lost realized appreciation” in extinguishing or wiping out the accumulated earnings for the period March 1, to December 31, 1913, to the extent of $21,531.24.
Appreciation in value over cost existing at March 1,1913, can be lost, but I fail to see how a loss can be created through a realization of appreciation which would wipe out, or extinguish, an earned surplus. The most that the loss would do would be to reduce the existing appreciation, but it would not be correct to say that such a loss reduces or wipes out a created or earned surplus for a prior year. If a corporation in any taxable year has no earnings after the deduction of depletion, or depreciation, on cost, there is no realization in that year of any appreciation in value accrued prior to March 1,1913, of which the stockholder may take advantage upon the payment of a dividend out of a pri- or existing surplus. Where there are no earnings left after the allowance of depletion on the basis of cost, the amount by which the depletion on March 1,1913, value exceeds the cost is not an amount which may be carried backward or forward to be applied against earned surplus so as to exempt a portion thereof from taxation in the hands of the stockholder. The rule that prohibits a corporation from carrying a loss in any year ' backward or forward, except in certain circumstances not material here, as a deduction from taxable income equally applies in a ease of this kind where the question is the amount taxable to a stockholder when a dividend is received by him. If a corporation in any taxable year fails to realize any portion of appreciation in value accruing prior to March 1, 1913, and existing on that date, its surplus is simply not disturbed for the purpose of taxation in the hands of stockholders when distributed. The unrealized appreciation in value existing bn March 1,1913, merely remains subject to realization in subsequent years if the corporation has sufficient earnings for thaj; purpose. The amount of realized appreciation in any taxable year cannot exceed the difference between depletion or depreciation on cost and on March 1, 1913, value, and, if the net earnings of the corporation after depletion on cost is an amount less than the difference between depletion on cost and depletion on the appreciated March 1, 1913, value, the amount of realized appreciation in such taxable year is limited to the amount of earnings remaining after the deduction of depletion or depreciation on cost. This accounts for the difference of $73.98 for 1915 between my computation and that in the majority opinion.
I am of opinion that the amount which should be held exempt from tax when the dividend of $286,997 was paid March 12, 1917, should be $50,105.03. The parties have stipulated that the taxable earnings accumnu*295lated in 1917, which were available for distribution on March 12, 1917, were $18,025.-94, thus leaving $218,866.03 ($236,891.07 less $18,025.94) taxable at 1916 rates. It accordingly follows that of the dividend of $286,997, $18,025.94 was taxable at 1917 rates and $218,866.03 was taxable at 1916 rates, and that $50,105.03 was nontaxable. The parties have stipulated that the part of the dividend taxable to Hoffman at the 1917 rate is $15,141.79. He held 84 per cent, of the corporation stock, and therefore the part of the dividend taxable at 1916 rates, 84 per cent., or $183,847.47, would be properly allocable to him for taxation at the 1916 rates.
In reaching this conclusion I have not considered the deficit existing at March 1, 1913, for the reason that at all times there was a surplus sufficient to extinguish the deficit and pay the dividend. A dividend can, of course, only be paid when a surplus exists, but, since the surplus existed on each dividend date, which had been accumulated since March 1, 1913, it was sufficient to extinguish the deficit and also pay the dividend, and it is unnecessary to consider the deficit in the computation.
The position of the defendant that the point here involved is analogous to that considered in Blair v. United, States, 63 Ct. Cl. 193, is without merit. A consideration of that ease and the analysis thereof set out in GCM 3532, C. B. 7-1, page 190, show that not only was there no deficit involved, but also that there was no question as to a March 1, 1913, value.