(dissenting in part).
I was in the court which decided Commissioner of Internal Revenue v. General Gas & Electric Corporation (C. C. A.) 72 F.(2d) 364, and in spite of later doubts I will adhere to it, but I cannot see any valid distinction between shares of a parent bought from and sold to outsiders by a subsidiary, and those issued by the parent directly to the subsidiary and sold later on the market. When a company issues shares, it makes the holder a member of the group of shareholders; when it buys them, this member retires from the group and takes his share of the assets. Assuming that he gets no more than his shares are worth at that moment, the group, i. e., the corporation, has neither lost nor gained. That is the naive view and the right view, freed from fictions; and it is the view of the regulations. Article 66, Regulations 74. I cannot now see why it should not apply equally among affiliates. The whole notion is that by common ownership of the shares corporate distinctions become obliterated; looked at from the standpoint of the real owners, the shareholders, there is only one business. The fact that the consolidated tax is apportioned among the affiliates does not matter. Especially in a case like that before us where one affiliate owns all the shares of the others it is not possible to think of more than a single group of shareholders. When we are dealing with a notion which wholly depends upon disregarding the corporate entities they ought to be disregarded throughout. The Board was of that opinion until reversed by the Seventh Circuit in Commissioner of Internal Revenue v. Van Camp Packing Co. (C. C. A.) 67 F.(2d) 596, the decision which we followed. But this mistaken theory was embodied in Regulations 75, Art. 34 (b), for the period after January 1, 1929, and I am ready to go along with it for the earlier years.
Whatever view one takes it ought to comprise shares of the parent subscribed for by the subsidiary. If we are to forget the presupposition underlying all affiliation in the first case, there is no reason to remember it in the second. If the subsidiary holds as property its parent’s shares bought on the market, it equally holds such shares bought from the parent. My brothers do not challenge this, as I understand it, but they say that the case falls within section 113 (a) (12) of the Revenue Act of 1928, 26 USCA § 2113 (a) (12), and Article 603 of Regulations 74. Verbally it may, but it seems to me plain, as indeed the example in the regulation shows, that the law was thinking only of property which was acquired by one affiliate and passed on to another. As I have said, I do not believe that the parent’s shares are property at all in these circumstances; but if they are, I do not feel obliged to yield obedience to the letter of those provisions when the result- is to establish a groundless anomaly like this. Often it will work a hardship to take the subsidiary’s subscription price as its “basis,” but that cannot be helped; it is only another reason for treating the whole subject realistically. I think that the order ought to be affirmed in toto.