dissenting: It seems to me that the substance of the transactions involved in this proceeding is this: The stockholders of two banks, one a state bank and the other a national bank, were anxious to merge them. Certain difficulties were encountered and the final agreement or plan was that a certain amount of cash and the stock in Pullman, Inc., and the Nashua Manufacturing Co. owned by the Old Guaranty Savings Bank of Nashua should be distributed to the stockholders of that bank, and the remainder of its assets should be exchanged with the Second National Bank of Nashua for 1,500 shares of its capital stock, these shares to be ratably distributed to the shareholders of the state bank in exchange for their shares in the proportion of three shares of the national bank for each four shares owned in the state bank.
If my interpretation of these transactions is correct, then I think the provisions of section 112 (b) (3) and section 112 (c) (1) of the Revenue Act of 1928 apply, and the gain is to be recognized only to the extent of the cash and the stock in Pullman, Inc., and the Nashua Manufacturing Co., which were distributed to the stockholders of the state bank.
It is true that the form of a sale of the remaining assets of the state bank to the national bank for $461,947.74 was carried out, and this $467,947.74 was immediately used to purchase 1,500 shares *307of stock in the national bank, and these shares were ratably distributed to the stockholders of the state bank, and it was dissolved. Was not this at least akin to a merger? Was the form of a sale of the assets and the immediate purchase of stock with the check so as to comply with the national banking laws substantially different from that which we had before us in Harry C. Howard, 20 B. T. A. 207?
The Circuit Court, in affirming our decision in the Howard case, 56 Fed. (2d) 781 (certiorari denied, 287 U. S. 619), among other things, said:
The section of the 1921 act just cited provides that: “ When in the reorganization of one or more corporations a person receives in place of any stock or securities owned by him, stock or securities in a corporation a party to or resulting from such reorganization,” no gain or loss shall be recognized. The word “ reorganization ” is defined by the section itself as including merger and consolidation (including the acquisition by one corporation of substantially all the properties of another corporation). Had the substance of what was contemplated and done been a disposition of the assets of the Michigan corporation for the sum of $625,000, paid or to bo paid in cash, whether such sum was in fact temporarily paid by a ninety day note or by other evidences of indebtedness in amounts certain, and whether such other evidences of indebtedness were held by the vendor company, or were then or subsequently distributed among the preferred stockholders, we do not doubt that the petitioner would be entitled to deduct the loss claimed; but we cannot see in the transaction disclosed by the present record aught but a financial reorganization of the Michigan corporation wherein and whereby the preferred stockholders were to acquire a proportionate interest in common stock of the Illinois or purchasing corporation.
The evidence discloses that there was some doubt whether the Michigan corporation law permitted a corporation to sell its assets for anything but cash. The note was given to allay such misgivings, but it would.seem clear that the course pursued was merely a subterfuge whereby assets could be purchased with stock. There was, it would seem, no intention to pay the note in cash. The giving of the note with the accompanying option was merely the means whereby the preferred stockholders were to acquire an interest of diminished value in the new corporation in exchange for and in lieu of their stock in the old: The present case falls within the letter of. section 202 (e) (2) of the Revenue Act of 1921, and, we think, also within its spirit. The transaction would therefore not be closed until the petitioner eventually disposed of his stock in the Illinois corporation or until its value finally became extinct within the meaning of the Royal Packing Company and De Loss cases above cited.
Of course it seems clear that whatever gain resulted to petitioners from the distribution to them of the cash and the stock in Pullman, Inc., and stock in the Nashua Manufacturing Co. was taxable to them under section 112 (c) (1), but, in my judgment, the transfer to the national bank of all the remaining assets of the state bank after the foregoing distribution to its stockholders, and the receipt therefor by the state bank of 1,500 shares of stock of the national bank and the distribution thereof to the stockholders of the state *308bank, three shares for four, and the subsequent dissolution of the state bank, ivas a reorganization within the provisions of section 112 (i) of the Revenue Act of 1928, and the exchange of stock for stock by petitioners is, under section 112 (b) (3), nontaxable. As said in the Howard case, supra, the transaction would not be closed until the petitioners eventually disposed of their stock.
AeuNdeix and Adams agree with this dissent.