(concurring specially).
It seems to me that if it appears that Swed and Sullivan, who owned all or substantially all of the corporation’s outstanding stock, intended to procure a cancellation of the Hinzpeter contract for the benefit of the corporation and intended to contribute the amount required for that purpose to the corporation, the same result would be reached, for the purposes of this case, as if there had been an intention that the corporation should make repayment to the stockholders of the amount paid by them to Hinzpeter.
The contract was an onerous one from the standpoint of the corporation. Swed, the manager of the corporate business, asked the Vice President of Anheuser-Busch, “to do everything possible to get Mr. Hinzpeter some kind of a settlement so we can pay him off and get out for Swed Distributing Company.” If the intent was “to pay him off” and “get out for” the petitioner, that intent seems hardly effected by the purchase of the contract by the stockholders. If the intent was to get Swed Distributing Company “out” of the liabilities of the burdensome contract, that intent can hardly be accomplished by leaving the corporation fully liable to perform it. I am reluctant to have the Tax Court, on remand, hornbooked into holding that there was a sale and a purchase unless it be shown that there was fraud or that there was an intention that the corporation repay the stockholders the amount of their advance for the settlement with Hinz-peter.
HUTCHESON, Circuit Judge, concurs.