(dissenting) .
As I see it the rather elaborate corporate maneuverings so stressed by the majority opinion fail utterly to disguise the fact that petitioner’s predecessor, as part of the purchase price of Securities common stock, guaranteed the preferred *320stock dividends of that company. The losses so incurred were therefore deductible only from capital gains and not as business expenses, losses or bad debts. That is the well-settled rule.1
The first major step in this matter took place when Koppers made alternative offers to the holders of common stock in New Haven: to buy outright a minimum of 100,000 shares at $61.00 per share or the deal that was ultimately consummated. Under the latter the New Haven shareholders exchanged each of their shares for one share of Securities preferred with Koppers guaranty of its $3.00 dividend and % share of Securities common which Koppers agreed to purchase for ninety days at $25.00 per share. That was the consideration to the transferors of the shares over which Koppers desired control. Koppers gave certain shares in other Connecticut utilities and the above consideration to the New Haven shareholders in exchange for % of Securities common. There were only two parties of substance involved. Securities had nothing to give but paper. Plainly, the dividend guaranty, was part of the cost of what Koppers received— the controlling shares of Securities.
Koppers then exchanged its share of the deal — ⅔ of Securities common — for a common stock interest in petitioner and indemnification for its liability under the dividend guaranty and its obligation to purchase Securities common at $25.00. Petitioner agreed to have Koppers saved harmless by causing, through its majority stock interest, one of its subsidiaries, Connecticut Light, to agree to indemnify Koppers for its guaranty on the Securities preferred. The majority gives this last circumstance talismanic significance. In this record there is no proof that Connecticut Light ever executed an indemnity agreement. Petitioner did not allege such execution in the pleadings and it was not so stipulated in the Tax Court.2 Nor is there anything to show petitioner was an authorized agent for Connecticut Light in this transaction. Actually the record reveals nothing tangible by way of consideration to Connecticut Light for undertaking the indemnity obligation. The court opinion goes no further than to suggest that the quid pro quo was “considerations satisfactory to it” (Connecticut Light).3 The Commissioner is ordered to accept whatever this nebulous phrase represents as Con*321necticut Light’s recompense for undertaking, if it did, a multi-million dollar guaranty, and further scrutiny is eliminated as violative of the rule that the parent and subsidiary are separate taxable entities. It would seem at least a bit doubtful that the Connecticut public utility regulatory body would allow Connecticut Light, an operating utility company of that state, to waste its assets on or to include in its cost of operations or rate base, this strange obligation with illusory consideration to it but with substantial present enrichment to its holding company parent. The minority shareholders of Connecticut Light could have surely attacked this overreaching by the parent. There is no good reason why the Commissioner cannot. Furthermore, the first time any payment was called for under the guaranty, petitioner relieved Connecticut Light, if it was ever bound, and assumed the indemnity obligation directly. So without proof of execution, consideration or performance a multimillion dollar contract emerges on review. It is not claimed that there was consideration to petitioner for taking over directly the indemnity in 1935. But petitioner would have lost control of Securities to the preferred stockholders, if the guaranteed dividend had not been paid by someone. In the face of this factual situation it is not easy to accept the pronouncement that these payments were not part of the cost of obtaining and keeping the ⅔ common stock interest in Securities.
The regulation (Section 29.24-2) quoted in the majority opinion covers this precise kind of circumstance. Petitioner undertook the same transaction as Koppers. Koppers assumed the guaranty “for the purpose of securing new capital for the subsidiary” (Securities)— namely, the New Haven common stock. The fact that the plan originated with Koppers and was transferred in toto to petitioner some months later does not change its inherent substance. Both of the reasons for the payments by petitioner when made arose directly out of the acquisition of the Securities common, namely, to indemnify Koppers in accordance with the right of indemnification given with other consideration to Koppers in exchange for the Securities common and “for the purpose of * * * increasing the value of its stockholdings in the subsidiary” (Securities) as petitioner would have lost control of Securities if the dividends were not paid.
The letter agreements to reimburse petitioner if and when earnings above the preferred stock dividends became available to Securities do not take those payments out of the regulation because by general law the guarantor would be subrogated to the rights of the subsidiary preferred stockholders to the extent of the amounts paid under the guaranty in every case.4 The claimed distinction would render the regulation completely ineffective. It cannot be too strongly urged that the regulation does not merely say payments under the kind of guaranty before us are not deductible in the years paid. And it does not say the said payments are not deductible unless the subsidiary gives a letter agreement to the parent. But it does flatly state that payments under the stipulated circumstances are not deductible at all but are capital expenditures to be added to the cost of the stock in the subsidiary. This regulation has been in effect in practically identical form since the enactment of the Revenue Act of 1918.5 The court’s eon*322elusion cannot be logically reached without invalidating it.
Standard Oil Co. of New Jersey v. Commissioner, 1946, 7 T.C. 1310, modified, 1948, 11 T.C. 843. acq. 1949-2 C.B. 3, characterized as an “exact parallel” and a “twin” of this issue by petitioner and obliquely relied on by the majority had to do with a radically different state of affairs. The regulation under Section 24 could have had no application there because Standard was not a stockholder of Export when the disputed payments were made.6 Standard prior thereto had never been a parent of Export, but simply a minority stockholder. In that litigation the Tax Court found that the guaranty of the preferred stock in Export was undertaken jointly and severally with .the other Export common stockholders, as an ordinary and necessary expense or loss for the purpose of retaining Anglo as a customer for the petroleum products of the Export common stockholders.
Even mistakenly applying the- holding of' the Standard decision, supra, to our problem, petitioner’s deduction would be limited to the amount -paid during the suit years, in accordance with the Standard formula.7 As is seen in the quoted language from that opinion the court summarily declined to accept the amaz-' ing proposition that the guaranty payments, though found as a fact to be ordinary expenses or losses, could be held in suspended animation and allowed as a deduction in the year of the windup of the primary obligor. Petitioner did not carry those payments forward as receivables on its books; neither did Standard Oil Co. of New Jersey; nor could this be accomplished by reasonably accurate accountancy practice since it would obliterate the cardinal rule of accounting and taxation of an annual accounting of gains and losses. The current notion of a deduction in 1947 or 1948 for the $1,376,233.66 paid in previous years, apparently did not occur to the tax experts who prepared petitioner’s returns. It was first raised years later in 1952 after the dispute regarding the $605,147.38 was in progress. If those payments were ever ordinary deductions, - they were allowable only in the year paid.
In any event, concludes the majority' opinion, the deductions claimed were- “ * * ' * losses *' * * not compensated for by insurance or otherwise”.' So labeling the payments does not automatically remove them from the capital losses category. Not all payments by a corporation are losses and not all losses are deductible in full under Section 23 (f).8 The tax treatment of a payment *323depends on purpose for which it is made. In Interstate Transit Lines v. Commissioner, 8 Cir., 1942, 130 F.2d 136, affirmed 1943, 319 U.S. 590, 63 S.Ct. 1279, 87 L.Ed. 1607, the Supreme Court faced a quite analogous situation. In that case, the parent corporation had paid the operating deficits of its subsidiary pursuant to a contract by which the parent was to be liable for all such deficits and sought a deduction for the payments. The Court specifically held that the payments could not be deducted by the parent and impliedly that they should be capitalized as part of the cost of the stock in the subsidiary.
The Supreme Court has just now stressed that payments under a guaranty contract are not changed to ordinary losses by that circumstance. Putnam v. Commissioner, 77 S.Ct. 175, 178. With reference to the right of subrogation under such conditions, which in the instant problem was memorialized by the letter agreements the Court, in Putnam stated:
“Under the doctrine of subrogation, payment by the guarantor, as we have seen, is treated not as creating a new debt and extinguishing the original debt, but as preserving the original debt and merely substituting the guarantor for the creditor.”
Here petitioner was subrogated to the rights of the Securities preferred stockholders. The latters’ rights to dividends were not debt obligations of Securities and the guarantors’ rights cannot rise above the rights of the parties for whose benefit the guaranty was made. It follows that the result of the majority cannot be rationalized as a business bad debt deduction.
Though I am satisfied the payments were part of the cost of the Securities common as the Tax Court held, should the finding of this court that the guaranty obligation was not assumed by petitioner until 1935 be accepted as divorcing the assumption of guaranty from the Securities common, petitioner would be no better off. It is agreed that there was no consideration to petitioner in 1935, therefore under that sort of reasoning it must have been a voluntary assumption of guaranty, a gratuity or the like. In those circumstances the payments could not be deductible under Reading Co. v. Commissioner, 3 Cir., 1942, 132 F.2d 306; W. F. Young, Inc., v. Commissioner, 1 Cir., 1941, 120 F.2d 159; American Cigar Co. v. Commissioner, 2 Cir., 1933, 66 F.2d 425, all cited with approval in Putnam, supra, at footnote 13.
The immediate result of ignoring both the principle that deductions are matters of legislative grace and the long standing regulation is an enormous windfall to petitioner. Far more serious than that, a new course is charted for tax avoidance. Instead of the usual purchase of and payment for stock with the buyer limited to capital loss deduction if the stock deteriorates in value, the corporate taxpayer can give the vendor preferred stock in one of its subsidiaries, guaranty the dividends and obtain an ordinary loss deduction on any guaranteed payment if the venture fails. All this despite the fact that in both transactions capital gain results if there is a gain on the investment.
The Tax Court followed the controlling regulation and the pertinent case law. Atlantic Coast Line Railroad Co. v. Commissioner, 31 B.T.A. 730, affirmed 4 Cir., 1936, 81 F.2d 309, certiorari denied, 1936, 298 U.S. 656, 56 S.Ct. 676, 80 L.Ed. 1382. And see our own Newark Milk & Cream Co. v. Commissioner, 3 Cir., 1929, 34 F.2d 854. I think the decision of that court should be affirmed.
. Where a shareholder pays additional amounts arising out of his stockholdings, the payments are capital losses. Arrow-smith v. Commissioner, 1952, 344 U.S. 6, 73 S.Ct. 71, 97 L.Ed. 6; Commissioner of Internal Revenue v. Switlik, 3 Cir., 1950, 184 F.2d 299; Commissioner of Internal Revenue v. Adam, Meldrum & Anderson Co., 2 Cir., 1954, 215 F.2d 163; Interstate Transit Lines v. Commissioner, 8 Cir., 1942, 130 F.2d 136, affirmed, 1943, 319 U.S. 590, 63 S.Ct. 1279, 87 L.Ed. 1607.
. The stipulation states:
“12. Under the said agreement of July 11, 1927, as more fully set forth therein, petitioner and Koppers also agreed, inter alia, that The Connecticut Light and Power Company, then a subsidiary of petitioner, of which petitioner owned a majority of the voting stock, should indemnify and save Koppers harmless on Koppers’ above recited guaranty of dividends on the preferred stock of Securities Company.
“13. No payments were made by The Connecticut Light and Power Company pursuant to the above indemnification agreement.”
. Petitioner characterizes the consideration to Oonnecticut Light on brief as follows:
“Connecticut Light had a very substantial stake in this agreement of July 11, 1927, to which it was, through the agency of its parent (petitioner), in effect a principal party. The various provisions therein for its benefit, its contemplated participation in the joint plan for the manufacture and sale of gas in Connecticut, and the protection and development of its market represented ample consideration for its assumption of the burden of Koppers’ guarantee of the preferred stock dividends of Securities Company.” elsewhere:
“These new arrangements can be seen in the agreement of July 11, 1927, which petitioner clearly negotiated with Koppers in part for itself and in part for Connecticut Light. This agreement called for a long-term and elaborate business relationship between Connecticut *321Light and the Koppers group, contemplating the purchase of gas by Connecticut Light from the latter and the resale thereof to utility companies operating in a half-dozen or more areas in the state of Connecticut.”
. Standard Oil Co. of New Jersey v. Commissioner, 1946, 7 T.C. 1310, modified, 1948, 11 T.C. 843. acq. 1949-2 C.B. 3.
. See Article 582 of the Treasury Regulations 45 (1920 and 1921 eds.), and Treasury Regulations 62, 65 and 69, promulgated under the Revenue Acts of 1921, 1924 and 1926, respectively; Article 282 of Treasury Regulations 74 and 77, promulgated under the Revenue Acts of 1928 and 1932, respectively; Article 24-2 of Treasury Regulations 86, 94 and 10.1, promulgated under the Revenue Acts of *3221934, 1936 and 1938, respectively; Section 19.242 of Treasury Regulations 103 promulgated under the Internal Revenue Code of 1939; Section 29.24-2 of Treasury Regulations 111, promulgated under the Internal Revenue Code of 1939 (applicable to taxable years beginning after December 31, 1941), here involved; and Section 39.24(a)-2 of Treasury Regulations 118, also promulgated under the 1939 Code but applicable to taxable years beginning after December 31, 1951.
. At 7 T.C. 1320, the Tax Court states:
“Petitioner, although no longer a stockholder of Export, still remained liable-under its guaranty contract dated November 6, 1929. During the period from January 1/1930, to June 30, 1936, inclusive, the preferred stockholders of. Export were paid dividends of $24,860,-. 118.30. Of this -amount $21,271,525.37, was paid by the guarantors, and of the amount paid by the guarantors petitioner paid 40 per cent or $8,508,610.15. Only $764,914.24 of the amount paid by petitioner is involved in this proceeding. The years in which such other amounts were paid are now closed. The amount of $764,914.24 represents 40 per cent of the final dividend of $1,912,285.60 paid on the preferred stock of Export for the first 6 months of 1936. The amount was paid-by petitioner on June 30, 1936, after it had ceased on May 19, 1936, to be a stockholder of Export.”
. See quotation from the Standard Oil opinion in note 5, supra.
. Income Tax Regulations 111, Section 29.23 (f) -1:
“Losses sustained by domestic corporations during the taxable year and not compensated for by insurance or otherwise are deductible in so far as not prohibited or limited by sections 23(g), 23(h), 24(b), 112, 117, 118, and 251.” (Emphasis supplied.)