dissenting:
Respectfully I dissent because the evidence leads me to conclude that a good and sufficient non-tax purpose motivated the distribution of Carbon’s stock from Palls to Basic. I would find that the form of the transaction amply reflected its substance, and hold that the tax treatment should follow from that. I would treat the distribution of Carbon’s stock as a dividend paid by Falls to Basic, just as it purported to be.
First, 'as to the governing law. I will point out why I differ with the trial judge’s opinion as I go along, but I agree with the trial judge that a useful place to begin analyzing this problem is with Gregory v. Helvering, 293 U.S. 465 (1935), the watershed of the “substance-versus-form” doctrine of our tax law. The trial judge accurately summarizes the outcome in Gregory: a taxpayer was denied certain tax advantages because the Supreme Court found her claim to such treatment rested solely upon her literal, but not meaningful, compliance with the tax statute that conferred the benefit. Since its genesis in the context of corporate reorganizations, the doctrine of Gregory has enlisted such a following that an inquiry into whether the substance of a transaction corresponds to its form is now appropriate in every area of tax law. Accordingly, wherever there occurs a transaction so heavily laden with tax avoidance motives that it appears to be a sham, our courts are justified in disregarding the mere formalisms and recasting the transaction as its economic substance suggests. See, B. Bittker & J. Eustice, Federal income Taxation of Corporations and Shareholders, ¶14.51 at 14-99 (1971).
Of course, the Gregory doctrine is not without its limits; courts are not entitled to discard routinely the form given to taxpayers’ affairs 'as if form were merely a dispensable wrapper surrounding a distinct substance within. “The solution of hard tax cases requires something more than the easy generalization that the substance rather than the form of a transaction is determinative of its tax effects, since in numerous situations the form by which a transaction is effected does influence or control its tax consequences.” Waterman S. S. Corp. v. Commissioner, 430 F. 2d 1185, 1192 (5th Cir. 1970); United States v. General Geophysical Co., 296 F. 2d *41786, 87 (5th Cir. 1961). The courts are not licensed to distort the law, to write in new provisions, or to render present provisions nullities; the doctrine is reserved to enable the courts to “'guard against 'giving force ‘to a purported transfer [that] gives off an unmistakably hollow sound when tapped.’ ” 430 F. 2d at 1196; 296 F. 2d at 89. Thus, Gregory is multidimen-tional. I agree with the trial judge that Judge Learned Hand was-in Gilbert v. Commissioner, 248 F. 2d 399 (2d Cir. 1957)-among the most successful in distilling Gregory's meaning to an aphorism, but I prefer to rely on somewhat more of Judge Hand’s language than the trial judge quoted:
* * * If * * * the taxpayer enters into a transaction that does not appreciably affect his beneficial interest except to reduce his tax, the law will disregard it; * * "When a taxpayer supposes that the transaction, in addition to its effect on his tax, will promote his beneficial interests in the venture, he will of course secure the desired [tax] reduction, for it would be absurd to hold that he must deny himself an economic advantage unless he pay the tax based upon the facts that have ceased to exist. * * *
Id. at 411.
The touchstone, therefore, that distinguishes a transaction worthy of being recognized as it appears from one deserving to be disregarded is the presence of a “good business purpose” rather than the absence of any desire on the taxpayer’s part to save taxes. The taxpayer’s purpose to escape taxes is legally neutral. Chisholm v. Commissioner, 79 F. 2d 14 (2d Cir. 1935). “[T]here is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. * * * [N]obody owes any public duty to pay more than the lajw demands: taxes are enforced exactions, not voluntary contributions.” Commissioner v. Newman, 159 F. 2d 848, 850-51 (2d Cir. 1947) (L. Hand, J., dissenting on other grounds). I would hold that Basic is entitled to favorable tax treatment if its method of selling its subsidiaries furthered its business interests, even if Basic chose one means of accomplishing this over the alternatives because this one exposed it to the least tax.
Second, as to the facts. As I see our task, we now must examine the facts of record to determine whether the tax*418payer acted in pursuit of a legitimate business purpose in selecting the form given the transaction, regardless of any motive to minimize its tax. I am convinced by the record that such a business purpose was present, while the majority, apparently, was not. We quarrel over the legal significance to be given the facts. I should pause here to point out that I do not contend that the trial judge’s factual findings are erroneous, as far as they go, even though I find that they do not go far enough. This is a case comfortably within the scope of our duty to review the findings of our trial judges where necessary, even in the absence of suitable exceptions. Miller v. United States, 168 Ct. Cl. 498, 339 F. 2d 661 (1964). In any event, plaintiff has excepted to the trial judge’s Ultimate Finding (No. 37), which serves to bring the underlying factual questions properly before us.
Usually, it is the taxpayer’s own business purpose that attracts the court’s attention. Where the taxpayer establishes that it acted to further its own business, the question is resolved in the taxpayer’s favor, and the transaction taxed as it appears. In an arm’s length transaction the business purpose may also be that of the party other than the taxpayer, who insisted on it for his own business reasons. Here, the taxpayer relies for its business purpose on Carborundum’s desires to structure the purchase of taxpayer’s subsidiaries in a particular way, and the trial judge correctly desired to know whether Carborundum’s position was itself supportable by legitimate business considerations. The trial judge’s concern is well-taken, for this might have been an instance of collusion if, for example, the taxpayer sought to protect itself by putting the words of its defense in the mouth of another corporate taxpayer, which it controlled. If that kind of self-dealing were found here, I would agree with the majority’s result. Similarly, I would agree if self-dealing took another form, as in Waterman S. S. Corp. v. Commissioner, supra, where just before it was sold to another corporation, the taxpayer’s subsidiary transferred cash to the taxpayer, as an obvious advance of the purchase price. There was no such evidence here, however, and none of the trial judge’s findings suggest collusion. To the contrary, Finding 31 states that “Carborundum and Basic were unrelated parties that dealt *419with one another on an arm’s length basis.” And the trial judge further recognized that Carborundum acted in furtherance of its own interest in proposing the sale of stock by Basic and that Carborundum’s proposal was not intended to confer tax advantages upon Basic. (Findings 14, 24.) These findings are probably inspired by the uncontradicted testimony of Carborundum’s assistant treasurer, Mr. Lebold, who explained the considerations that motivated Carborundum’s management to insist upon purchasing 'both Falls’ and Carbon’s stock directly from Basic.
In summary, Carborundum originally proposed to buy assets only leaving the corporate stock untouched. Basic rejected this except at a price Carborundum did not wish to pay, $265,000 above the price the executives had already agreed on in principle. This was because of unfavorable tax consequences that Basic anticipated from a sale of assets that included depreciated facilities, on which any gain over basis would be taxable as ordinary income, and also, no doubt, inventory. No one suggests that Basic should now have to pay the taxes such a sale would have generated. This left stock sales as the remaining options the parties could have. They might be as follows:
(A) Carborundum might buy the Falls stock from Basic, leaving the Carbon stock undisturbed in Falls’ treasury. Carborundum objected to this because it could not 'have allocated part of the purchase price, over the book values, to make a new basis for Carbon’s assets. Carbon in tact owned a substantial part of the assets Carborundum wished to acquire.
(B) Carborundum might buy the Carbon stock from Falls and then buy the Falls stock from Basic. Carborundum objected to this for both tax and non-tax reasons. The tax objection was that Falls would have realized a taxable gain which Carborundum, as its new owner, would have had to pay, even if indirectly. The non-tax reason was that Carborundum would have had no contractual recourse except against itself had the Carbon assets been found to be not as represented.
(C) Carborundum might buy the stock of each subsidiary from Basic. To make this possible, the Carbon stock had to be got from Falls’ treasury into Basic’s. No matter how accomplished, this would have appeared to be a dividend for tax law purposes, and under other *420circumstances, the IRS would probably have insisted it was a dividend even if called something else.
It would seem that, from Carborundum’s point of view, option C had to be adopted because there existed fatal objections to A and B. It is not apparent what other options there could have 'been. It remains to inquire whether these considerations were actually in Carborundum’s mind at the time or were afterthoughts. It is now time to look at Mr. Le-bold’s testimony in the record:
Plaintiff’s counsel. What was the reason for your suggesting that Carborundum purchase the stock of Carbon from Basic?
MR. Lebold. Well, the reason was that * * * there was a substantial premium we were paying over the book value or the tax basis of the assets [in] the respective companies. If we bought the shares for cash we could liquidate [both subsidiaries] under section 334(b) (2) [of the Internal Revenue Code] and write up the assets to their respective fair market values. [Transcript at 77-78.]
Plaintiff’s counsel. Was it then your opinion that the price to be paid could not be satisfactorily allocated to the 'assets of the two companies if Carborundum simply purchased the stock of Falls from Basic?
Mr. Lebold. Yes, definitely. You have to purchase at least 80% of the shares of a company in order to meet the requirements of * * * section 334(b) (2).
Plaintiff’s counsel. Were you desirous of purchasing the stock of Carbon so that you could attribute the price paid for that stock to the assets of Carbon ?
Mr. Lebold. Yes, we were because the assets of Carbon contained some intangibles that were more valuable than assets held by Falls, so we wanted to purchase each company’s shares. [Transcript at 78-79.]
On subsequent cross-examination, Mr. Lebold participated in this exchange:
Government’s counsel. Why did you not consider * * _* buying the Carbon shares from Falls and then buying the Falls shares from Basic ?
Mr. Lebold. Well, that didn’t seem to be the clean way to handle the transaction if we even gave it serious thought * * * it seems to me it would be quite awkward and not even feasible[. IJf we had bought the shares [of Carbon] from Falls, then Falls would have a gain. Then *421if we wanted to buy tbe Shares of Falls from Basic, Inc., we would 'have to pay a bigger price because the profit on the sale of Carbon would be in Falls. [Transcript at 87.]
Mr. Lebold later elaborated on this “awkwardness” in response to the trial judge’s request for clarification of Carborundum’s position. Mr. Lebold replied:
* * * it seemed to me that if we had bought the shares [of Carbon from Falls] there probably would have been a gain that Falls would have had on the sale. Then we would have this profit in Falls. Let’s see, if we bought the Falls shares from Basic, Inc., we would have to pay for the profit twice, wouldn’t we? [Transcript at 106.]
I believe that Mr. Lebold was correct that Carborundum would have paid twice if the transaction were attempted in this manner. If 'Carborundum had paid Falls the cash price for Carbon’s stock, Falls and not Basic would have realized the profit. If Basic could not have reached that profit, it would reasonably expect that Carborundum, in the next step of the transaction, would pay for Falls stock an amount that represents the expected profit on both Falls’ and Carbon’s stocks. As Mr. Lebold anticipated, Carborundum would thus have paid twice for Carbon, first to Falls and then to Basic. And after Falls became a part of Carborundum’s corporate organization, it must still pay a tax on the gain realized upon selling Carbon’s stock. In the end, Carborundum would have transferred funds from one of its corporate pockets to another, serving no purpose but incurring a tax nevertheless. Awkward indeed! There might have been additional alternatives, but each would have injected an awkwardness of its own. 'Carborundum could have, for example, paid a lower price for Carbon stock and a higher price for Falls, but thereby it would sacrifice its ability to allocate its costs among Carbon’s valuable assets, which was Carborundum’s primary purpose from the outset. Similarly, if Carborundum purchased solely Falls’ stock from Basic, it would not have been entitled to invoke section 334(b) (2) upon liquidating Carbon, because Carborundum would not have purchased 80% of the stock of Carbon as that section requires.
*422I would be satisfied with, this much alone to find that the form chosen for the transaction served the interests of both Basic and Carbon, that there was a sufficient business purpose. But then, on recross-examination, Mr. Lebold proceeded to describe still another dimension to the “awkwardness” involved if Carborundum purchased Carbon stock from Falls:
GovbRnment’s counsel. Could you describe for me what you mean by the term “awkward” in your response just before?
Mr. Lebold. Well, “awkward” from the standpoint that I just covered [the problem of having to duplicate the profit to Basic], and from the fact that we would be dealing with a company that we are going to turn right around and buy[.] I would sooner deal with a third party and buy companies from them where I could have some recourse if something in the agreement was defective from our standpoint later. [Transcript at 106.]
* * * [This] other consideration is the one in the contract itself. We would rather have an existing company that is on the New York Stock Exchange [as] the seller in case we do have some problems turn up later under the agreement. [Transcript at 107.]
Plaintiee’s counsel. [I]s it correct * * * that if you had purchased the stock in * * * Carbon from Falls that would have involved a contractual obligation between you and Falls ?
Mr. Lebold. Yes.
PlaiNtiuf’s counsel. Then if you had immediately thereafter purchased the stock of Falls from Basic your first contract relating to the purchase of the Carbon stock would have been between you and your own preaching?
Mr. Lebold. Yes.
t Plaintuht’s counsel. Which is not a very satisfactory situation if you need any recourse under the contract ?
Me. Lebold. That’s right.
Plaintiep’s counsel. So that the awkwardness did not, in fact, only relate to the tax considerations?
Mr. Lebold. That’s right. [Transcript at 108.]
Little more need be said, in my view, to establish a sufficient business purpose — or, perhaps, several business purposes. I might even entertain the suggestion that the structure chosen by the parties may have been the only way to satisfy both *423sides of the deal. In any event, the record places this case beyond the scope of Commissioner v. Transport Trading & Terminal Corp., 176 F. 2d 570 (2d Cir. 1949), cited by the trial judge, which advises the courts to withhold tax benefits from “transactions entered upon for no other motive but to -escape taxation.” 176 F. 2d at 572 (emphasis supplied).
The trial judge makes much of the fact that the taxpayer and Carborundum actively considered how the tax results would differ depending on how they chose to structure the transaction. It can be said bluntly, I think, without undermining their respective positions, that both Basic and Carborundum sought to consummate the deal at the smallest tax -cost. This is no inore than a taxpayer’s legitimate desire to escape taxes, which is legally neutral so long as the form of the transaction is otherwise supported by the taxpayer’s business interests. Since I cannot conclude, upon reviewing the record, that the stock distribution was “a mere device * * * a disguise for concealing its real character” inveighed against in Gregory v. Helvering, supra, I would sustain the taxpayer’s refund claim.
BINDINGS OK PACT
1. Plaintiff, Basic Incorporated (hereinafter Basic), is an Ohio corporation having its principal office in Cleveland, Ohio.
2. During the time period relevant here, 1963-1964, Basic’s principal business involved the production and sale of basic refractory materials for use largely in steel-making furnaces.
3. On May 10, 1963, Falls Industries Incorporated (hereinafter Falls), became a wholly owned subsidiary of Basic through merger. In this transaction Basic issued to the shareholders of Falls 63,228 shares of its own 5 percent cumulative convertible preference shares in exchange for the outstanding Falls shares. Basic’s adjusted basis for its stock in Falls at this time was $1,134,076.35.
4. At the time of its acquisition, Falls was engaged in the manufacture and sale of processing equipment made wholly or in part from impervious graphite and certain specialized carbon and graphite formulations. This business was con*424ducted at two plants, one located in Solon, Ohio; the other in Sanborn, New York.
5. On January 1,1964, Falls transferred its Sanborn plant and related assets, which together had an adjusted basis of $501,869.75, to a then newly organized New York corporation called Basic 'Carbon Corporation (hereinafter Carbon). Falls, in return for this transfer of assets, received all the stock of Carbon. As of January 1, 1964, Basic owned all of the outstanding stock of Falls, and, in turn, Falls owned all of the outstanding stock of Carbon. Thus, Basic was the parent company, Falls the first-tier subsidiary, and Carbon the second-tier subsidiary.
6. In August 1964, discussions were initiated between Basic and The Carborundum. Company of Niagara Falls, New York (hereinafter Carborundum), concerning possible business transactions between the two companies. Initially, these discussions concerned a possible merger of Basic into Carborundum. At some time prior to the meeting of the executive committee of Basic on October 8, 1964, the discussions between Basic and Carborundum also came to include the possible purchase by Carborundum of the carbon and graphite business conducted by the Falls and Carbon subsidiaries.
7. Later, at the October 8th executive committee meeting, the consensus reached was that management should continue its discussions with Carborundum concerning the merger or purchase possibilities that had been explored between the two companies up to that time. By mid-October 1964, however, Basic had decided against a merger with Carborundum.
8. During October 1964, Basic had also been considering its own expansion of the carbon and graphite business conducted by Falls and Carbon and, to that end, alternative methods of financing such expansion were then also under examination. At a meeting of the board of directors of Basic on October 21,1964, it was concluded that one or more business partners should be sought to assist Basic in financing this contemplated expansion. With this in mind discussions were had with Carborundum and at least two other companies. At the same time, Basic was also consulting with financial advisors as to other likely methods of financing the *425possible expansion. However, Basie eventually realized that it could not afford the simultaneous capital outlays that would be required for the continuous development of its basic refractory business on the one hand, and the costs involved in going forward with an expansion of the carbon and graphite business on the other. For this reason, Basic came to consider the sale of its carbon and graphite business.
9. Prior to November 6, 1964, no tentative agreement or other understanding had been reached between Basic and Carborundum as to the purchase and sale of the carbon and graphite business conducted by Falls and Carbon. On November 6, 1964, Mr. Eells, the chairman and president of Basic, and vice-president of finance for Basic, met in Niagara Falls, New York with Mr. Wendel, the chief executive of Carborundum and with other officers of Carborundum to discuss the possible sale to Carborundum of the carbon and graphite business of Falls and Carbon. At this meeting, Messrs. Eells and Wendel tentatively agreed on a price of $3,985,000 for the sale of the business plus the repayment by Carbon of $1,000,000 which it had been advanced by Basic.
10. During the course of the November 6, 1964, meeting, no understanding or agreement was reached concerning the details of the purchase transaction or the form in which it should be carried out.
11. Subsequent to reaching the tentative agreement on price for the sale of the Falls and Carbon business to Carborundum, Mr. Ludwig and officials of Carborundum began negotiations to work out the details of the transaction including, of course, such matters as the form the transaction was to take. 'Since Carborundum was primarily interested in obtaining the assets of the two companies involved, it first proposed that the transaction take the form of a purchase of the assets of Falls and Carbon.
12. Basic’s reaction to this first Carborundum proposal was that if the transaction were to take the form of a sale of assets, then the tentative purchase price earlier reached between Messrs. Eells and Wendel would have to be increased by $265,000 to allow for various tax and management considerations. Additionally, Carborundum would then also have to agree to indemnify Basic for any further assessment *426of taxes that might become payable on the transaction in excess of those taxes which Basic could anticipate and compute in advance. These additional considerations which Basic had raised were not acceptable to Carborundum and, hence, no agreement was reached on a sale of assets.
13. Since Carborundum was chiefly interested in acquiring the assets of Falls and Carbon, it next proposed that it purchase from Basic all of the Falls and Carbon stock. Carborundum’s purpose in mailing this second proposal was to enable it to buy the stock of both companies for cash and thereafter to liquidate them so as to acquire their assets and then allocate the aggregate purchase price paid for the stock of the two companies to their respective assets in accordance with Section 834(b) (2) of the Internal Bevenue Code of 1954.
14. This second proposal was made by Carborundum because it was seen by that company to be in its own best interests; the proposal was not made for the purpose of specifically granting Basic any tax advantages that might not otherwise result were the transaction to be cast in a different form. However, Basic, in acting in its own behalf, did consider the tax consequences of the proposed transaction as well as alternative approaches that might be taken. Because it found the offer as made to be satisfactory, it accepted Carborundum’s second proposal.
15. In a report to the board of directors of Carborundum, dated November 17, 1964, it was explained that, while Carborundum would have preferred to purchase assets only, it remained advantageous for Carborundum to purchase the stock of Falls and all the stock of Carbon directly from Basic and that Basic would, therefore, be requested to transfer the ownership of Carbon stock from Falls to Basic prior to the transaction.
16. At a meeting of the Carborundum board of directors on November 19, 1964, approval was given to recommendations for the purchase of all the stock of Falls and all the stock of Carbon from Basic for $3,935,000 in cash and to an agreement to pay the debt of Carbon to Basic in the amount of $1,000,000. Also approved was the purchase of certain land in Hickman, Kentucky, then being acquired by Basic.
*42717. By letter, dated November 23, 1964, Carborundum made a formal offer to Basic to: (a) purchase from Basic all the stock of Falls and all the stock of Carbon for $3,935,000; (b) buy, or cause to be paid, the $1,000,000 debt of Carbon to Basic; (c) reimburse Basic up to $100,000 for advances made to Falls and Carbon between October 31,1964, and the closing date; and (d) purchase at Basic’s cost all its rights to acquire properties in Hickman, Kentucky. The offer provided for a closing date of December 31, 1964, or such other date as might be agreed upon. The offer was irrevocable, by its own terms, until November 27,1964.
18. On November 24, 1969, one day after Carborundum had made its formal offer to Basic, a special meeting of the board of directors of Falls was held. Those attending (and who together made up a quorum of the board) were Mr. Eells, Mr. Ludwig, and a Mr. Lee. At the meeting, which was chaired by Mr. Eells (he was also the chairman and president of Basic), it was reported that the company’s sole shareholder, namely, Basic, had been discussing with The Carborundum Company the sale by Basic to Carborundum of the shares of Falls’ wholly owned subsidiary, Carbon. It was also reported that Carborundum was insisting that it purchase those shares from Basic rather than from Falls directly.
19. At the November 24,1964, meeting (identified in Finding 18), Mr. Eells recommended that Falls distribute the stock of Carbon to Basic as a dividend so as to enable Basic to deal separately with the stock of Carbon and the stock of Falls. Accordingly, after discussion, the following resolution was passed:
RESOLVED, that a dividend be declared and paid to the holder of all the outstanding shares of common stock of the Company by the distribution to such holder on November 24, 1964 of all the shares of outstanding stock of Basic Carbon Corporation.
20. Thereafter, on November 24, 1964, pursuant to the above resolution, all of the stock of Carbon was transferred by Falls to Basic. At the time of this transfer, no shares of stock of Falls were surrendered by the transferee, Basic, in exchange for receiving the stock of Carbon. The transaction *428was entirely unilateral in character; by means of it Basic became the legal owner of record of all outstanding shares of Carbon stock.
21. At a meeting of the board of directors of Basic on November 25, 1964, acceptance of the Carborundum offer to buy all the stock of Falls and all the stock of Carbon on the terms and conditions contained in the Carborundum letter of November 28, 1964, was authorized. Acceptance of the offer was endorsed on the Carborundum letter by Mr. Eells, the president of Basic, on November 25,1964.
22. The agreement between Carborundum and Basic embodied in the 'Carborundum letter of November 23,1964, contained a number of conditions to which Carborundum’s obligation to consummate the transaction was subject. Among these was assurance from Price Waterhouse & Co. as to the correctness of the financial statements of Falls and Carbon as of October 31,1964. In its examination, Price Waterhouse & Co. prepared consolidated financial statements of Falls and Carbon as of October 31, 1964, making 'adjustments to the common stock equity and net income of Falls and Carbon as reflected in the separate financial statements attached to the agreement embodied in the Carborundum letter of November 23, 1964. The adjustments reduced the common stock equity of Falls and Carbon, as reflected in such, separate financial statements, by $48,364. Although Basic felt that the amounts in the separate financial statements were correct, this difference was nevertheless compromised by agreement between Basic and Carborundum resulting in a reduction of the purchase price by $25,000 from $3,935,000 to $3,910,000.
23. On December 29,1964, the sale and transfer of all the stock of Falls and Carbon by Basic to Carborundum was consummated, the adjusted price of $3,910,000 was paid, the debt of Carbon to Basic in the amount of $1,000,000 was paid and other payments and transfers completed, all in accordance with the agreement.
24. Except for its initial proposal to purchase the assets of Falls and Carbon, Carborundum made no proposal offer to Basic to carry out the transaction in any form other than a direct purchase from Basic of the stock of Falls and the stock of Carbon. This form of the transaction was proposed *429by Carborundum in order to secure business 'and tax results which Carborundum desired. Carborundum, rather than Basic, suggested that the stock of Carbon be transferred by Falls to Basic so that Carborundum could purchase thlat stock, together with the stock of Palls, directly from Basic. Purchase of the stock of Carbon from Falls would not have been satisfactory to Carborundum because that approach would have increased the overall price.
25. While the purchase price that was paid in the finalized transaction remained substantially the same as that which had been tentatively agreed upon by the chief executives of Basic and Carborundum, that amount was affected by the form in which the transaction was carried out. Had the transaction involved, say, a sale of assets rather than a sale of stock, then Basic’s price would have been increased by $265,000.
26. With respect to the transaction as finally executed, Basic and Carborundum never discussed alternative purchase prices depending upon Whether or not the transfer of Carbon stock to Basic was carried out. However, plaintiff does admit that methods of transferring the Carbon stock to Basic, other than the distribution of that stock as an intended dividend, would have changed the final purchase price or would otherwise have affected the economics of the transaction.
27. On June 30, 1965, Falls and Carbon were completely liquidated into Carborundum by transfers of all their respective properties and assets, subject to liabilities, in exchange for, and upon surrender of, all the stock of the two companies.
28. The adjusted basis of all the stock of Carbon in the hands of Palls immediately before the transfer of such stock to Basic on November 24,1964, was $501,869.76. On November 5, 1964, at a meeting of its board of directors, Falls declared a cash dividend to Basic of $275,000, payable December 31, 1964, in order to reimburse Basic for cash dividends that it had paid, and would pay through December 1964, on the 68,228 shares of convertible preferred stock issued by Basic in the May 10,1963, merger. This cash dividend was paid to Basic prior to the transfer of the stock of Falls to Carborundum. During the period of Basic’s ownership of Falls, Falls made no distributions to Basic other than *430this cash dividend and the distribution of all the stock of Carbon on November 24,1964.
29. Although the earnings and profits of Falls for the year 1964, plus its earnings and profits accumulated after February 28,1913, exceeded the sum of $176,869.76, and were thus sufficient to cover the dividend distributions to Basic, Falls did have to borrow some money in order to carry out its cash dividend of $275,000.
30. Basic’s adjusted basis for its stock in Falls at the time of its acquisition was $1,134,076.35. Basic’s adjusted basis for this stock at the time of its sale to Carborundum was $1,136,-726.35, the increase being attributable to selling expenses.
31. Throughout the course of the negotiations which culminated in the November 23, 1964, offer of Carborundum to purchase all the stock of Falls and Carbon from Basic and the consummation of the transaction which that offer contemplated, Carborundum and Basic were Unrelated parties that dealt with one another on an arm’s length basis. At all times material hereto, Basic and Carborundum were publicly held corporations whose shares were traded on the New York Stock Exchange.
32. Basic used the accrual method of accounting in keeping its books and records and in reporting income in its calendar year corporation income tax return.
33. In its federal income tax return for 1964, which Basic filed with the District Director of Internal Revenue, Cleveland, Ohio, the company reported dividend income from Falls in the amount of $501,869.76 as a result of the receipt of the stock of Carbon. Also, it claimed a dividends-received deduction with respect to such dividend income and it reported a long-term capital gain of $2,310,217.52 from the sale to Carborundum of the shares of stock of Falls and Carbon. Income tax in the amount of $1,207,406.36, shown due in such return, was timely paid by Basic.
34. During 1970 representatives of the Commissioner of Internal Revenue (the Commissioner) concluded an examination of Basic’s federal income tax return for 1964 and determined that the reported gain from the sale of the stock of Falls and Carbon should be increased by $501,869.76 and that the dividend income reported by Basic should be re*431duced by an equivalent amount. As a result of this determination and other adjustments to Basic’s return for 1964 which are not in controversy, additional income tax of $68,818.12 for 1964 and interest thereon was assessed against Basic, which additional tax was paid by Basic, $18,703.21 on January 3,1967, and $50,114.91 on 'September 3, 1970, with interest thereon as pro vided by law.
35. The period of limitation for assessment of Basic’s income tax for 1964 was extended to December 31, 1970, by timely agreements duly executed. On November 3, 1970, Basic filed a claim for refund of 1964 income tax in the amount of $87,827.22 on the ground that it had correctly reported in its 1964 return a dividend of $501,869.76 from Falls as a result of the receipt of all stock of Carbon and that the reduction of its dividend income by that amount and the increase by an equivalent amount in the gain from the sale of the stock of Falls and Carbon were erroneous.
36. By letter, dated August 11,1971, Basic was notified by the Commissioner that its refund claim was disallowed in full. Basic has received no credit or refund of any income tax or interest thereon paid for the year 1964.
ULTIMATE VENDING
37. The transfer of the ownership of the shares of Carbon from Falls to Basic was a transfer that was dictated by the sole shareholder, the parent, Basic, in furtherance of a sale of the business which the parent had decided upon for its own purposes.
Alternatively, if the transfer is taken as a self-initiated move on the part of the distributing corporation rather than as a shareholder-dictated distribution, the tax consequences would remain the same. For a corporate transfer that is undertaken in furtherance of an agreed-to sale of the distributed property at the hands of the distributee is, in reality, a sale by the corporation itself. Under this alternative view, the gain realized by Falls on the sale of its own property (namely, the shares of Carbon) would reach Basic’s treasury upon the latter’s sale of Falls. There would, however, be no dividend.
*432CONCLUSION OF LAW
Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed.