(dissenting).
I am unable to concur in the opinion of the Court.
On March 1, 1929, the directors of the corporation, at the suggestion of the company’s accountant, in order to avoid an overstatement of the company’s balance sheet assets, adopted a resolution providing for the charging of all the debit balances of the Hudson stockholders to surplus, the material part of which is as follows: “Be it resolved that the overdrafts shown on the accounts of Charles Hudson, Galvin Hudson, Administrator, Mrs. Charles Hudson and Miss Marie Hudson be cleared out of the assets of the Hudson and Dugger Company by charging them and each of them to surplus, it being the sense of this resolution and so understood by all that the accounts above set out are not being forgiven and that Hudson and Dugger Company still owns its equity therein ; that at such time as may be convenient and appropriate proper settlement will be made to the Company by the parties of such account.”
On March 15, 1929, there was charged to surplus and credited to the petitioner by journal entries $16,271.96; Marie Hudson, $2,089.64; and on May 31, 1929, Charles Hudson, $43,910.10; and Galvin Hudson, administrator, $58,768.81. Galvin Hudson reported in his individual income tax return for 1925, $10,000 administrator’s fees, withdrawn from the corporation.
In 1929, the Hudsons owned no property except the stock of the Hudson & Dugger Company and the indebtedness of each of them to the corporation could have been collected only by its subjection.
In September, 1931, after a controversy had arisen between the Hudsons and the Internal Revenue Bureau, concerning their income taxes for the calendar year 1929, the stockholders of the company declared by resolution that there was no understanding between the company and the Hudsons in 1929, that they or any one of them should be relieved of any indebtedness to it by reason of their withdrawals, or those of their intestate, Charles Hudson. They then agreed with the other stockholders of the company that the $43,-910.19 due by Charles Hudson at the date of his death and the $58,768.81 due by Galvin Hudson, Administrator, be settled by his surrendering to the company 340.27 shares of its capital stock par value $100 per share, by the petitioner surrendering 343.26 shares and surrendering as trustee of Marie Hudson, 343.26 shares.
The president of the company was authorized to negotiate further with the petitioner, individually, and as trustee for a settlement of their indebtedness to the company of $16,271.96 and $2,089.64 respectively and on March 13, 1932, petition*634er settled these debts by surrendering to the company 162.72 shares, and 20.90 shares respectively.' There was no formal declaration' of a dividend by the corporation.
The Commissioner of Internal Revenue, .basing his decision on the resolution of the directors and the books of the company, found that Galvin Hudson, the petitioner, individually, and as trustee for Marie Hudson, each received a taxable dividend for the year 1929 of $34,226.33 by reason of the receipt by each of them in 1926 of one-third of the capital stock of the corporation belonging to their intestate, and that their liability arose from the charge-off of the indebtedness to the corporation of Charles Hudson and his administrator, Galvin Hudson. He further found that petitioner had in addition received a. taxable dividend of $16,271.96, the amount of her indebtedness charged-off in 1929 and Marie Hudson a dividend of $2,089.64. The Board of Tax Appeals sustained the Commissioner.
' Section 115(a) of the Revenue Act of 1928, 26 U.S.C.A. § 115(a), makes taxable as a dividend any distribution by a corporation to its stockholders, in money or other property, out of earnings or profits accumulated after February 28, 1913. This statute taxes a distribution in money or its equivalent even though to a single stockholder. Lincoln National Bank, Executor, v. Burnet, Commissioner, 61 App. D.C. 54, 63 F.2d 131.
Dividends need not be formally declared. Chattanooga Savings Bank v. Brewer, 6 Cir., 17 F.2d 79, and the can-' cellation of the indebtedness of a stockholder may result in the payment of a dividend. Moses Cohen v. Commissioner of Internal Revenue, 6 Cir., 77 F.2d 184.
Under the laws of Tennessee, the heirs or devisees become personally responsible for decedent’s debts, to the extent of the value of the estate received. American Surety Company v. Grace, 151 Tenn. 575, 271 S.W. 739.
In December, 1926, when the Hudsons accepted the capital stock of the Hudson & Dugger Company distributed out of the estate of Charles Hudson, it passed to them charged with the payment of his indebtedness and the expenses of the administration of his estate which trust was impressed upon all of the stock until these obligations were discharged.
If the corporate resolution of March 1st and the subsequent debiting of surplus and crediting of the accounts of the Hudson stockholders resulted in cancelling their indebtedness to the corporation, each of them received a taxable dividend. If the effect of the resolution was to postpone the payment of the debts, no dividend was received. The resolution is not free from ambiguity and, in considering it, we must so reconcile conflicts as to give effect to all of it.
It was stated in the resolution that the purpose of the charge-off was because “there appears to be little probability of the Company realizing on these accounts for at least some time to come” and “that there may be no overstatement of the Company’s assets in its balance sheet.” It was also set out that these so-called “assets” are to be cleared out of the Company “by charging them, and each of them, to surplus.” This was followed by a statement that it was not to be understood by any of the parties “that the accounts above set out are being forgiven and that Hudson & Dugger still owns its equity therein.” It was further stated “that at such time as may be convenient and appropriate, proper settlement will be made to the Company by the parties of such account.”
The phrase “convenient and appropriate” means suitable or well adapted to easy action or performance. It is not synonymous with forgiveness or cancellation.
In the case of Newsam v. Finch, 25 Barb., N.Y., 175, 177, where part payment of a note was made before it was legally demandable, in consideration of the time for the payment of the balance being extended until convenient to the maker to-pay it, the court said: “The effect of that agreement was, to postpone the time for the payment of the balance after the note should become due by its terms, for such a period as under all the circumstances of the case should be reasonable.”
In the case of Black v. Bachelder, 120 Mass. 171, the appellees became indebted to the appellant under an advertising contract and the creditor agreed to postpone the payment by providing in the contract “payable as convenient.” The court said this phrase “can only mean that some indulgence as to the length of credit was to be allowed to the debtors.”
In the case of Samuels v. Larrimore, 11 Cal.App. 337, 104 P. 1001, the court said1 *635one who borrows money “to be repaid ‘when convenient or when business picked up,’ [is] bound to repay within a reasonable time, and [is] not entitled to hold the money indefinitely at his election.” [Page 1002.]
In Howes’ Ex’rs v. Woodruff, 21 Wend., N.Y., 640, 642, the court, in construing an agreement to pay a certain sum with interest “whenever it is convenient to make a final settlement,” said: “The legal effect ■of such a stipulation is, I think, that the act shall be done within a reasonable time. It cannot mean that the thing shall be done on the demand of the party, for then he might demand immediately, and before a proper time had elapsed. ‘Convenient,’ as here used must mean such a time for doing the act, as, under all the circumstances of the case, should be reasonable.”
A contract or corporate resolution must be construed in the light of its subject matter and the surrounding circumstances. The acts of the parties thereto may be scrutinized in determining the intent, if the language or terms of the instrument are ambiguous or uncertain. What one intends is best determined by what he does.
In 1931, the Hudson stockholders surrendered a part of their stock in the Company and were unequivocably relieved of their indebtedness to it, and not until that time was there a final and complete settlement. The entries on the books of the corporation do not agree with the directors’ resolution. Surplus was charged and the accounts of the stockholders credited, which balanced the accounts.
Correct accounting in accordance with the resolution would have required a charge against surplus and a credit to reserve for the Hudson overdrafts. However, book entries, though evidential, are not determinative of tax liability. The minute books of the corporation setting out the resolution of the Board of Directors reflect more clearly the true nature of the transaction than the bookkeeping entries. The action of the Board of Directors ' is more authentic and carries greater weight as evidence. Compare Helvering v. Midland Mutual Life Insurance Company, 300 U.S. 216, 227, 57 S.Ct. 423, 81 L.Ed. 612, 108 A.L.R. 436; Eaton v. English & Mersick Company, 2 Cir., 7 F.2d 54; Taplin v. Commissioner, 6 Cir., 41 F.2d 454; Doyle v. Mitchell Bros. Co., 247 U.S. 179, 189, 38 S.Ct. 467, 62 L.Ed. 1054.
Income tax is laid upon income, not capital. When receipts come to a taxpayer in the ordinary course of business, or from dealing in property, they bear no label clearly identifying them as income. Consideration of the substance rather than the form out of which the alleged taxable transaction arises, is the basic rule to be applied. The Government should not distort the things men do in order to collect taxes and individuals should not conceal or disguise their business transactions or dealings in property in order to prevent their imposition. Credits, as well as cash, may give rise to taxable income. A credit to a stockholder in order to constitute a dividend, must have finality and be for a definite amount, unequivocal and subject to no substantial contingency. When the credits to the Hudson stockholders and charges to the company’s surplus in 1929 are integrated with the resolution of the Board of Directors, the alleged dividends lack finality and are contingent.
The decision of the Board of Tax Appeals should be reversed.