DISSENTING OPINION
CRAIG, District Judge.The majority opinion well states the issues before this Court. Based upon the record in this case, I would disagree with the conclusion of the majority opinion that the steps taken to liquidate Mof-fatt and Nichol, Inc. constituted a part of an integrated plan of reorganization.1
*269The real issue in this case seems to me to be the interpretation of Section 354(b) (1) (A). Assuming, however, that the majority is correct in its conclusion that there was in fact an integrated plan of reorganization, the transaction in my opinion would still not qualify under the provisions of Section 368(a) (1) (D) because of the effect of Section 354, which is, as the majority opinion states, a prerequisite to the operation of Section 368(a) (1) (D). Section 354(b) (1) (A) requires that the corporation to which the assets are transferred acquire substantially all of the assets of the transferor of such assets before the transaction qualifies under Section 368, supra.
The total liquidation to the petitioner stockholders was $239,522.67, which may be itemized as follows:
*270Of these amounts it is not seriously disputed that the land and building plans worth $84,995.85 have not been transferred to the new company, nor is it contested that the following definitely were transferred:
The Commissioner contended that much of the cash was technically transferred to the new company, since the petitioners made some large loans to Engineers after receiving cash from Inc.’s liquidation.
The Commissioner first contends that “substantially all of the assets” means “substantially all of the operative assets”. I cannot agree. If Congress intended to limit the transfer to “operative assets” it would have said so. Congress did not, and the Court should not read into the Code that which is not there. Pillar Rock Packing Company v. Commissioner, 9 Cir., 90 F.2d 949 (1937); C. T. Inv. Co. v. Commissioner, 88 F.2d 582 (1937).
Petitioners cite numerous cases which indicate that “substantially all of the properties” under the 1939 Code was interpreted as meaning at least 80% if not more of the properties, including intangibles such as accounts receivable. Pillar Rock Packing Company v. Commissioner, supra; Western Industries Co. v. Helvering, 65 App.D.C. 205, 82 F.2d 461 (1936); Schuh Trading Co. v. Commissioner, 95 F.2d 404 (2 Cir., 1938); National Bank of Commerce of Norfolk v. United States, 158 F.Supp. 887 (D.C., 1958). In Halliburton v. Commissioner, 9 Cir., 78 F.2d 265 (1935), the Court held that the term “property” in the tax law includes “money”, unless otherwise expressly provided by Congress. There is no way of knowing precisely why Congress adopted the new terminology of “assets” over the old “properties”, but the effect was certainly not to narrow the scope of the phrase. Therefore, were the Court to conclude, and it should not, that the building and the land were the only assets which were not transferred to the new company, this would constitute a transfer of only 64.-52% of the assets, which is not “substantially all of the assets”. It is not necessary to decide where the demarcation line of “substantially all” may lie, but it should be held that it is certainly somewhere above 64.52%.2
In appraising the evidence as to whether there was a “substantial transfer”, the respondent seeks to place a value on “intangibles”, which may also be described as “good will”. This suggestion arises from the nature of Engineers’ business.
The record discloses the fact to be that at no time in the operation of either company was "good will” considered to be an asset, nor was any value placed thereon. Moreover, this Court should be foreclosed from considering this factor in determining the value of the assets transferred. (T.R. Yol. II, pg. 12, line 24 through pg. 13, line 4.)
While Congress may be presumed to have exercised its taxing power to the fullest, that presumption does not authorize this Court to supply additional language- to the act. Moreover, if we were to disregard the record in this case and assign a “thin air” value to good will, or intangibles, or whatever name may be applied, even to the extent of $180,000.00, we would still have under 80% of the assets transferred.
It has been suggested that a loan should be treated as a “transfer of assets” *271within the meaning of the statute. The two terms are wholly and completely incompatible. A transfer of assets under any interpretation denotes an investment with the attendant risks. A loan carries with it an obligation to repay with a fixed rate of interest. We must take the record as we find it, and in this case the record does not support the defense that there was a transfer of “substantially all of the assets” as required in order to tax as ordinary income.
The Respondent contends that an historical analysis of Congressional action produces the startling conclusion that Congress intended “substantially all” in Section 354 to mean 50%. This conclusion is reached by inferring that a proposed Section 357 (H.R. 8300), which was never enacted, was incorporated in Section 354. This is unrealistic and untenable. If Congress says “substantially all”, it means just that, and not 50%.
It is my opinion, therefore, that substantially all of the assets were not transferred from Inc. to Engineers, and this transaction does not qualify as a corporate reorganization under Section 354 and Section 368(a) (1) (D). Under the circumstances of these cases, it is not necessary to determine whether there was a plan of reorganization or whether an exchange of stock from the old company to the new was made.
The Commissioner claims, however, that at any rate Section 368(a) (1) (F) should apply. That section would define reorganization as: “ [A] mere change in identity, form, or place of organization, however effected.”
The cases under consideration do not fall within the purview of this section, for, as has been noted, there was more than a “mere change”. The new company did not do any contracting or engage in joint ventures. There was a new shareholder who did not own stock in Inc., and Engineers did not acquire some of the major assets which Inc. possessed. See: Joseph C. Gallagher, 39 T.C. 144, at 161, 162. Section (F) seems the complement of Section (D) to the extent that finding, as we should, there was not a transfer of substantially all of the assets, we could not then say there was a “mere change in identity or form”.
The Commissioner finally contended that if there was no reorganization under Sections 354 and 368, then the amounts involved were still corporate dividends under Section 301, and were not received in liquidation of a corporation. The specific governs over the general and Sections 331(a) (2) and 346 are directly applicable here.
Finally, it seems to me that the majority opinion abrogates the judicial function in the interpretation of “substantially all” when it judicially approves the interpretation “espoused by Rev.Rul. 57-518, 1957-2 C.B. 253.” It seems to me that this phase of the majority opinion goes a step beyond judicial legislation. In effect it gives a judicial blessing to the arrogation, by a branch of the Executive Department, of the legislative process. If Congress had intended “substantially all” to mean what the Internal Revenue Department thinks it means, it would have said so. I would hold that the Tax Court erred and that its finding was contrary to the weight of the evidence. It is my opinion that the transaction involved here was a liquidation under Sections 331(a) (2) and 346 of the Internal Revenue Code of 1954. The amounts received by Petitioners represented distributions in partial liquidation, taxable under Sections 331 and 346, supra, as capital gains, and should be treated as such. It is my opinion that for the reasons stated the decisions of the Tax Court in these cases should be reversed.
. Petitioners, John G. Moffatt, Prank E. Nichol and George G. Murray, were the sole stockholders of Moffatt and Nichol, Inc. Inc. was organized in 1947, and its primary business was the practice of consulting engineering; it was also licensed, however, as a building contractor and engaged in some large-scale speculative joint ventures in that endeavor.
On July 22, 1957, Moffatt and Nichol, Engineers, was incorporated. Messrs. Moffatt, Nichol and Murray became officers in the new company, while retaining the same officer positions in Inc. There was one new stockholder, W. J. Bobisch, who purchased ten per cent of the stock in the new company. The new company’s activities were restricted to consulting engineering work, thus avoiding the inherent risk involved in speculative joint ventures. The old company, Inc., continued negotiations for joint venture operations as it had in the past. Inc. retained all of its existing engineering contracts, but arranged for the remaining work to be performed by Engineers as-its agent. There is disagreement as to the purpose of the organization of Engineers. The Commissioner contended, and the majority opinion upholds that contention, that it was a part of an over-all plan to reorganize Inc. The Petitioners, on the other hand, contended that there was no intent to reorganize, for the new corporation was formed in order that certain key employees, including Bobisch, could invest in a company which did not: engage in construction or joint ventures.
Until December 23, 1958, both corporations carried on operations. Most of Inc.’s *269activity involved speculation on certain joint ventures and the purchase of land for a new building. On December 23, 1958, Inc. adopted a resolution to dissolve. The subjective reason for this dissolution is, of course, in dispute. The Commissioner contends that it was merely another step in a planned reorganization. The petitioners claim that the large losses being sustained by Engineers coupled with the passage by Congress on August 28, 1958, of Internal Revenue Code §§ 1371-1377, triggered the decision. The petitioners would thus have assets to invest in the new corporation, and upon electing to be taxed as a partnership, they could deduct the losses attributable to Engineers on their individual returns.
There are three requirements which must be met for a transaction to qualify as a corporation reorganization under Sections 354 and 368(a) (1) (D):
(1) The corporation to which assets were transferred must acquire “substantially all of the assets” of the transferor corporation.
(2) There must be a plan of reorganization.
(3) The stockholders must exchange stock in the old company for stock in the new.
The contention of the Commissioner that there was a planned reorganization is apparently based upon two circumstances : First a new accounting firm was employed by Inc. in April of 1957 to examine the records of Inc. as of December 31, 1956 (T.R. Vol. II, p. 26.) One on the partners of the firm, a Mr. Henry Howard, attended a conference witli Inc.’s counsel, a Mr. Kennedy, at which several subjects were discussed, including the tax problems of Inc. At the request of Mr. Kennedy, Mr. Howard prepared a memorandum for Mr. Kennedy, setting forth a number of recommendations. (Exhibit No. MM.) The record does not disclose that the contents of the memorandum were communicated to the principals or anyone other than Mr. Kennedy. To the contrary, there is testimony that the contents of the memorandum were not communicated to the principals of Inc. or Engineers by anyone. The record does not disclose any action by the Board of Directors of either Inc. or Engineers upon the contents of the memorandum. Second, the dissolution and liquidation of Inc. in December, 1958, over a year and a half after submission of the memorandum, and subsequent to the passage by Congress in August of 1958 of IRC §§ 1371-1377; some of the activities of Inc. in December, 1958, and subsequently, had been suggested in the memorandum of May, 1957, from Mr. Howard to Mr. Kennedy. The lapse of time, the activities of the parties, the economic conditions as they affected the two corporations, all as disclosed in the record, seem to dispel the idea of a “plan of reorganization”.
. For a discussion of the meaning of “substantially all” see Dudderar v. Commissioner, 44 T.C. 632, where it was held that the words “substantially all” as used in Section 264(b) (1) must be given their ordinary meaning of all but a small negligible amount.