(dissenting).
If the Kimberly Compahy had merely transferred its Kotex shares to the Cellucotton Corporation, and taken in exchange the Cellucotton shares for distribution, the transaction would have been within section 203 (h) (1) (A) Revenue Act 1926 (44 Stat. 12); that is, it would have been “the acquisition by one corporation” of a majority of the shares “of another corporation,” and therefore a “reorganization.” But the transaction did not take that form. The Kimberly Company declared the Kotex 'shares as a dividend to its own shareholders, and it was they, acting through the deposit committee, who exchanged them for Cellucotton shares. It is true that the Kimberly shareholders had already agreed that the Kotex shares, when distributed to them, should be delivered to the committee with power to exchange them for Cellucotton shares; and it is also true that that agreement prevented the shares from being taxable income of the Kimberly shareholders, who never got complete dominion over them. Avery v. Commissioner, 292 U.S. 210, 54 S.Ct. 674, 78 L.Ed. 1216; Matchette v. Helvering, 81 F.(2d) 73 (C.C.A.2). The Kimberly shareholders received any income only when the committee distributed the Cellucotton shares to them; but the Kimberly Company had finally parted with the Kotex shares when it declared the dividend, and the limitation upon the rights of its shareholders arose, not from- any power or interest reserved to itself, but because of the cross interests created by the agreement between all the Kotex shareholders including those who were not Kimberly shareholders. There was never a “reorganization” between the Kimberly 'Company and the Cellucotton Corporation in the sense required by section 203 (h) (1) (A), because the Kimberly Company neither' transferred the Kotex shares to the Cellucotton Company, nor acquired the Cellucotton shares itself. The only “reorganization” was between the Kotex Company and the Cellucotton Corporation when that company got all the Kotex assets in exchange for Kotex shares. Nor do I think that the Kimberly Company was “a party” to that “reorganization”; I do not believe that this phrase includes all corporations which are parties to one of the contracts of reorganization; as to that I cannot agree with the Board. “A party to the reorganization" is one of the necessáry parties to a transaction detailed in section 203 (h) (1); such transactions are either (A), mergers and consolidations, or (B), purchases of property; or they are unilateral transactions, (C) and (D). Section 203 (h) (2) was added merely out of abundant caution; really it adds nothing to what went before. Thus the Kimberly shareholders were not shareholders of “a party” to any “reorganization” which took place.
In substance when all was over, what had happened was that the Kimbei-ly Company having exchanged part of its property for new property had distributed it as a dividend to its own shareholders. I acknowledge that in substance what had happened was also that the Kimberly Cornpa*225ny had exchanged its Kotex shares for shares of the Cellucotton Company and had had these issued direct to its own shareholders. These two situations have different legal consequences, and the facts fit both equally well. It is indeed often said that taxation is a matter of substance, not of form, and perhaps at times that may be true, though I must own that to me it seems a doctrine more often disregarded than observed; but when a statute is drafted upon a concept like that of the reality of corporate personality, I do not see how that concept can fail to be determinative. I know of no way to solve the verbal riddle before us than by treating the form as real, and by forbearing to invoke a putative “substance” which on pursuit turns out to be an ignis fatuus. My brothers agree so far, but they choose a different formal mould from mine, which supports the ruling of the Board.