dissenting:
I respectfully dissent because I believe the majority opinion is contrary to the plain terms of the statute, and it bases the Federal stock issue tax solely on bookkeeping entries as such, which have never been considered controlling of any substantive question of tax law.
During the years 1901 to 1931 plaintiff issued 8,703,252 shares of common stock, having a par value of $100 per share, and thereby dedicated to capital the total amount of $870,-325,200. Federal stock issue tax was paid on this amount. In 1938 plaintiff changed these shares from $100 par to no par with a stated value of $75 per share. This reduced the common stock capital account by $217,581,300. As of December 31,1948, the stated value of each share was increased by $25, so that the amount dedicated to capital was again $870,325,200.
The pertinent part of section 1802 (a) provides that a stock issue tax shall be imposed:
On each original issue, whether on organization or reorganization, of shares or certificates of stock, * * *: Provided further, That where such certificates (or shares, where no certificates are issued) are issued in a recapitalization, the tax payable shall be that proportion of the tax computed on such certificates or shares issued in the recapitalization that the amount dedicated as capital for the first time by the recapitalization, whether by a transfer of earned surplus or otherwise, bears to the total par value (or actual value if no par stock) of such certificates or shares issued in the recapitalization. * * *
It is seen from the terms of the above provision that the tax is imposed in a recapitalization only on “the amount dedicated as capital for the first time by the recapitalization, whether by a transfer of earned surplus or otherwise.” The term “amount” so used in this section means a quantity, a *170number, and not particular dollars or funds as the majority opinion indicates. For the purpose of this proviso see H. Rept. 969, 80th Congress, 1st session. It seems clear that the reduction of the amount dedicated to capital and the subsequent restoration of the amount of the reduction is a rededi-cation of that amount to capital and not the dedication of that amount for the first time.
Section 113.23 (e) of Treasury Regulation 71, set out in the majority opinion, specifically recognizes that the reduction of the amount dedicated to capital and the subsequent restoration of the amount of the reduction is a rededication of that amount and not a dedication of that amount for the first time, provided the amount can be traced and identified. Thus, as indicated by the regulation, the following example would not result in a tax. The taxpayer reduces the amount dedicated to capital by $100 and credits a separate account called capital surplus, or some other name to identify it, with $100 and debits the capital stock account with $100. Ten years later in a recapitalization the taxpayer decided to again dedicate that $100 amount to capital. It has maintained this $100 credit in a separate account on the corporate ■books. It then debits this separate account $100 and credits the capital stock account $100. As stated above, no tax is due since there was a rededication a/nd the taxpayer has maintained the credit entry of $100 separate on its books.
The only difference between what the regulation allows, as shown by the above example, and the instant case is that plaintiff did not keep its credit entry in a separate account. In 1938 plaintiff debited its common stock capital account $217,581,300 and credited that amount to account labeled capital surplus, which already had a credit balance of $81,-250,021.42, thus bringing the total credit balance to $298,-831,321.42. As of December 31, 1948, plaintiff decided to raise its common stock capital account back to the amount of $870,325,200. It debited the capital surplus account $38,462,-800.89, eliminating the balance in that account, debited earned surplus account $179,118,499.11, and credited common stock capital account $217,581,300, thus increasing that account to $870,325,200.
*171The majority opinion holds that the full amount cannot be traced or identified because the accountant charged capital surplus with the writedown of the intangibles instead of earned surplus. The statute does not require the tracing of funds, which is in and of itself an artificial concept, but on the contrary specifically states that only the “amount dedicated as capital for the first time by the recapitalization, whether by a transfer of earned surplus or otherwise,” is to be taxed. The clause “whether by a transfer of earned surplus or otherwise” indicates that Congress was not basing the tax on book entries. I do not believe that Congress ever intended that the tax would be determined on whether the accountant used one surplus theory in keeping the books of the corporation or another. Whether an item should be charged to earned surplus, capital surplus, or to some other account, varies from accountant to accountant. There could be found ample authority among accountants for the charging of the intangibles in the instant case to earned surplus rather than to capital surplus. This is especially true where, as in this case, capital surplus was made up of entirely paid-in capital instead of the various and sundry other items that could have been credited to that account. Some of the difficulty that will result from treating bookkeeping entries as controlling taxability is demonstrated by the difficulty the majority opinion has with the $38,462,800.89 balance in the capital surplus account before the rededication.
I would allow the plaintiff to recover the Federal stock issue tax paid on the $217,581,300 because that amomvb had already been subjected to the tax once and the plain term of the statute prohibited its being taxed a second time.
FINDINGS OF FACT
The court having considered the evidence, the stipulation of facts entered into between the parties, and the briefs and argument of counsel, makes findings of fact as follows:
1. United States Steel Corporation, the plaintiff (herein called the “Steel Corporation”), is a corporation organized and existing under the laws of the State of New Jersey. It was incorporated in 1901 with an authorized capitalization of $1,100,000,000, consisting of 5,500,000 shares of preferred *172stock, $100 par value, and 5,500,000 shares of common stock, $100 par value.
2. At the time of its organization, the Steel Corporation as its initial capitalization issued 5,102,811 shares of preferred stock and 5,083,025 shares of common stock. Capital dedicated in respect to such shares of preferred stock amounted to $510,281,100, or $100 par value per share, and capital dedicated in respect to such shares of common stock amounted to $508,302,500, or $100 par value per share.
3. In respect to such shares of preferred and common stocks the Steel Corporation paid Federal stock issue tax at the rate of 50 per $100 of par value, being the sum of $255,140.55 in respect to the 5,102,811 shares of preferred stock, and the sum of $254,151.25 in respect to the 5,083,025 shares of common stock. This tax was imposed under Section 6 and Schedule A of the Act of June 3,1898, as amended by the Act of March 2, 1901 (56th Congress, Session II, Chapter 906). Such tax was repealed by the War Kevenue Eepeal Act (Act of April 12, 1902), which took effect July 1,1902.
4. The preferred stock and common stock referred to herein are the only classes of stock the Steel Corporation has ever had. From the time it was issued the terms of the Steel Corporation’s preferred stock have never been changed. In 1903 it issued $150,000,000 of its 5% bonds in exchange for $150,000,000 par value of its preferred stock, reducing its preferred stock capital account to $360,281,100. Since then there has been no change in the preferred stock capital account. The Steel Corporation’s common stock capital account of $508,302,500, referred to in finding 2, remained unchanged until 1927.
5. In 1927 a 40% stock dividend was declared and paid on the Steel Corporation’s common stock, payable in authorized and theretofore unissued stock, one share of common stock, $100 par value, being issued in respect to each 2y2 shares of common stock then outstanding. As a result of this stock dividend, there were issued 2,033,210 shares of common stock, par value $100 per share, or a total par value of $203,321,000. This amount was transferred from the Steel Corporation’s earned surplus account to its common stock *173capital account, increasing the latter from $508,302,500 to $711,623,500. In respect to the stock dividend of said 2,033,210 shares of common stock, the Steel Corporation paid, under Schedule A, Title VIII, Eevenue Act of 1926, Federal stock issue tax at the rate of 50 per $100 of par value, or a total tax of $101,660.50.
6. In 1929 the Steel Corporation issued rights to subscribe to one share of common stock for each seven shares held, at $140 per share. Pursuant to the exercise of such rights it issued for cash 1,016,605 shares of authorized and theretofore unissued common stock, $100 par value, or a total par value of $101,660,500. The issuance of this stock increased the Steel Corporation’s common stock capital account from $711,623,500 to $813,284,000. In respect to said 1,016,605 shares of common stock, the Steel Corporation paid, under Schedule A, Title VIII, Eevenue Act of 1926, Federal fstock issue tax at the rate of 50 per $100 of par value, or a total tax of $50,830.25.
7. In 1930 and 1931 the Steel Corporation issued for cash and property a total of 570,412 shares of authorized and theretofore unissued common stock, $100 par value, or a total par value of $57,041,200. The issuance of this stock increased the Steel Corporation’s common stock capital account from $813,284,000 to $870,325,200. In respect to said 570,412 shares of common stock, issued in 1930 and 1931, the Steel Corporation paid, under Schedule A, Title VIII, Eevenue Act of 1926, Federal stock issue tax at the rate of 50 per $100 of par value, or a total tax of $28,520.60.
8. The 1,587,017 shares of common stock issued in 1929, 1930 and 1931, as set out in findings 6 and 7, were issued for cash and property having an aggregate book value of $239,951,721.42, or $81,250,021.42 in excess of the par value of such shares. This excess amount was set up on the books of the Steel Corporation as capital surplus.
9. As of December 31, 1935, the Steel Corporation and subsidiaries transferred from earned surplus to depreciation, depletion and amortization reserves $270,000,000, to cover the estimated economic obsolescence of properties. This amount had been reserved prior to 1927, principally from earned surplus, as management’s estimate of the *174amount of income which had been reinvested in fixed assets.
10. In 1938 the Steel Corporation, by proper corporate action of its directors and stockholders, changed its common stock from par value of $100 per share to no par value with a stated value of $75 per share. In respect to the then outstanding 8,703,252 shares of common stock, this resulted in a reduction in stated value of common stock and in common stock capital account from $870,325,200 to $652,743,900, or a reduction of $217,581,300. This amount was credited to capital surplus account and, when added to the amount of $81,250,021.42 already in that account, as set forth in finding 8, increased th Steel Corporation’s capital surplus account to $298,831,321.42.
11. In December 1938 the Steel Corporation carried on its books intangible property of itself and subsidiaries at a value of $260,368,521.53. As of December 31, 1938, this amount was written down to $1, and the sum of $260,368,-520.53 was charged against capital surplus account on the books of the Steel Corporation, reducing that account to $38,462,800.89.
12. At a meeting of the Board of Directors of the Steel Corporation held on January 25, 1949, a resolution was adopted to restore, as of December 31,1948, to earned surplus account the sum of $270,000,000, referred to in finding 9. Pursuant to such authorization, as of December 31, 1948, the Steel Corporation on its books charged depreciation reserves $270,000,000 and credited earned surplus account $270,000,000.
13. At the said meeting of the Board of Directors of the Steel Corporation on January 25, 1949, a resolution was adopted to transfer, as of December 31, 1948, $38,462,801 from capital surplus to common stock capital account and $179,118,499 from earned surplus to common stock capital account, or a total of $217,581,300. Such transfers to common stock capital account were to increase the stated capital in respect to issued and outstanding shares of common stock from $652,743,900 to $870,325,200, the latter amount being equivalent to $100 per share for each of the 8,703,252 shares of no par value common stock then outstanding. Pursuant to such authorization, as of December 31,1948, the Steel Cor*175poration on its books charged $88,462,800.89 to capital surplus account, eliminating the balance in that account, and charged $179,118,499.11 to earned surplus account, and credited the aggregate of $217,581,300 to common stock capital account, increasing that account from $652,743,900 to $870,325,200.
14. At the said meeting of the Board of Directors of the Steel Corporation on January 25, 1949, resolutions were adopted declaring it advisable to split the common stock of the Steel Corporation 3 for 1 by changing each share without par value into three shares without par value, thereby increasing the outstanding number of shares of common stock from 8,703,252 to 26,109,756; and to change the stated value of the common stock from $100 per share to $33% per share; and to amend the By-Laws to increase the number of votes which the holders of preferred stock are entitled from one to three votes for each share; and to submit such proposals to the stockholders at the annual meeting of the stockholders to be held May 2,1949.
15. The annual meeting of the stockholders of the Steel Corporation was held on May 2, 1949, and at that meeting the action proposed at the meeting of the Board of Directors of January 25, 1949, with respect to splitting the common stock, changing the stated value per share of the common stock, and increasing the voting rights of the preferred stock, was approved. The stockholders’ meeting of May 2, 1949, was the first meeting of stockholders subsequent to the meeting of directors of January 25,1949.
16. Pursuant to such action of the directors and stockholders, the Certificate of Incorporation of the Steel Corporation was duly amended, and upon the taking effect of the amendment each share of common stock, without par value, outstanding immediately before the amendment was changed and reclassified into three shares of common stock, without par value. Each certificate representing one or more shares of common stock which were issued and outstanding immediately prior to the taking effect of the amendment, upon the taking effect of the amendment represented the same number of shares, and such certificates remained outstanding, and in June 1949 the Steel Corporation issued *176to stockholders of record at the close of business on May 12, 1949, in respect to each share of common stock then held of record certificates representing two additional shares of common stock. The common stock capital account as of December 31,1948, of $870,325,200, referred to in paragraph 13, remained unchanged through December 31, 1951, and thereafter through December 31,1953.
17. Subsequent to the issuance of the stock certificates referred to in finding 16, a Federal documentary stamp tax was assessed against plaintiff in the sum of $239,339.43. Plaintiff paid the assessment and interest in the sum of $25,602.76. The assessment was based upon sections 1800 and 1802 (a) of the Internal Revenue Code of 1939, as amended.
CONCLUSION OP LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover, with interest as provided by law. Judgment will be entered to this effect. The amount of recovery will be determined pursuant to Rule 38 (c).
In accordance with the foregoing opinion and upon the filing of a memorandum report by the commissioner showing the amount due plaintiff, it was ordered on November 7, 1956, that judgment be entered for the plaintiff for $30,-805.67, with interest thereon as provided by law. This principal amount was subsequently changed by stipulation to $34,100.75 and an order to that effect was entered on March 6,1957.