(dissenting).
I think the decision of the Tax Court is correct and should be affirmed. I agree that the two contemporaneous contracts must be considered together and for the purpose of this opinion they will be so considered. When the opinion of the Tax Court is considered in its entirety, it appears that it did consider both contracts in reaching its conclusions. It gave no effect to the contract between the Bower-sock Trust and the Common Stockholders because it was of the opinion that it threw no light upon the new relationship existing between the Trust and the company after the execution of their contract of January 1, 1939. With this conclusion, I agree.
Prior to the execution of the contract in question, the Bowersock' Trust was not only a ■ creditor of the company but it was, in fact, the first preferred creditor thereof. With this outstanding preferred debt, the company-was unable to obtain the banking credit it needed in its business affairs; In order, therefore, for the company to obtain the banking credit necessary to carry on its business, it was necessary for the Trust toi give up this preferred creditor status. It was to accomplish this that the agreement of January 1, 1939 with the company was executed. This contract is clear and unambiguous and we must therefore look to it to determine whether thereafter the status of the Trust was that of a creditor or whether if became a stockholder. That the Trust intended thereafter to maintain the status of a creditor is beside the point. The sole and only question is what relationship did the parties spell out in their written contract. The contract with the stockholders is important only if and as it modifies the relationship created in the first contract.
It is true that the mere fact that preferred stock was issued may not in all cases be sufficient to establish a stockholder relationship rather than a debtor-creditor relationship. See Arthur R. Jones Syndicate v. Commissioner of Internal Revenue, 7 Cir., 23 F.2d 833. The facts in that case are, however, quite different from those in this case. No written contract specifically setting forth the transaction between the parties was executed, neither was an existing debtor-creditor relationship involved. Preferred shares were issued *909which differ materially from the ones in this case.
The preamble clause of the contract between the Trust and the company recited the existing debtor-creditor relationship, the necessity for the release of this indebtedness, the desire to change the form of the indebtedness so the mortgage could be released, the proposal that 5500 shares of preferred stock be issued in payment of the principal of the bonds and the release of the mortgage, and that 500 shares of such stock be issued in payment of the deferred interest.
The contract recited that it was agreed that 6000 shares of such stock should be issued; that the stock should provide that it would be preferred both as to dividends and assets; that such stock should have voting rights as to the sale, mortgage or pledge of the fixed assets of the corporation, the dissolution, discontinuance, merger or consolidation with any other corporation, any amendments of or change in the charter of incorporation, or any action taken to effect -the reorganization pursuant to the bankruptcy laws or relating to the appointment of a receiver. As to all of these matters, the Trust, as the owner of this stock, had equal voting rights with the common stockholders. The stock was made retirable at par and accrued dividends on call of the corporation. It was also provided that no debenture bonds, mortgage or other fixed liens should be issued by the company without the consent of the preferred stockholders; that no dividends should be paid on the common stock until all dividends, current or accumulated, if any, had been paid on the preferred stock. It further provided that if in any year dividends in excess of three per cent were declared on the common stock, one-half of such excess should be paid on the preferred stock as an additional dividend. The contract provided that when the company had performed these agreements and had delivered preferred stocks containing these recitals, the Trust agreed to cancel and surrender its first mortgage bonds in the amount of $550,000.00, and release the mortgage securing the same of record. Pursuant to the terms of the contract, the Trust cancelled and surrendered its bonds, released its mortgage and accepted the preferred stock in lieu thereof.
It must be conceded that the effect of the contract between the Trust and the company was to abolish the debtor-creditor relationship existing between them and to substitute therefor a stockholder relationship. If a debtor-creditor relationship existed between the parties thereafter, such relationship must be sought and found in the provisions of the contemporaneous contract between the Trust and the common stockholders of the company. In this contract, the Trust agreed to sell and the common stockholders agreed to purchase the 6,000 shares of preferred stock which the Trust had received from the company in payment of its bonded indebtedness. The stockholders agreed to purchase this preferred stock beginning January 1, 1944, at an agreed price so that the annual pay-, ment to the Trust of dividends on the stock and purchase price thereof would amount to not less than $31,500.00 per year. It was agreed that the common stockholders should not become personally liable but they, in effect, did agree to hypothecate all their common stock in the company with a trustee to be held upon condition that if the company had not retired enough of its preferred stock1 at the beginning of each year to pay the Trust $31,500.00, and if the common stockholders, thereafter, for a period of six months failed to purchase the preferred stock of the Trust as provided for in this contract, then their common stock should upon demand of the Trust be delivered to it by the trustee as liquidated damages. If, thereafter, the common stockholders failed to redeem the stock as provided for in the contract, the Trust became the absolute owner of all the common stock.
The second contract was solely between the common stockholders and the Trust. The company was not a party to it. It neither assumed any liabilities nor obtained any benefits thereunder. The Trust could *910make no demand on the corporation by virtue of any of the terms or provisions of this contract. The sole purpose of this contract was to make sure that the Trust would receive $31,500.00 per year, either from the company by its voluntary retirement of this preferred stock or from the common stockholders under their agreement to purchase this stock from the Trust to this extent, if the company failed in any year to redeem preferred stock in the amount of $31,500.00. I think the Tax Court was correct in not giving any effect to the second contract in determining the relationship between the Trust and the company because it had no bearing thereon.
In short,- here was the situation. A creditor-debtor relationship existed between the Trust and the company. The Trust was a preferred creditor, having a first mortgage on the assets of the company. This placed it in a strong position. This debtor relationship was also beneficial to the company for income tax purposes, but that relationship also embarrassed both parties in that it -impaired the company’s credit standing. In order then to improve the credit standing of the company, it became necessary to wipe out this relationship. The Trust was willing to do this but it was not willing to surrender any of -the bundle of -rights which it held. Realizing that it must surrender them as against the company, it entered into a contract with a third party, the common stockholders, in which tliey gave it all the rights it had relinquished to the company to the full extent of the entire issue of the common stock. The company likewise was willing to abolish the debtor-creditor relationship and substitute a stockholder relationship instead for the credit benefits which Would result. Having received these benefits which followed the establishment of the stockholder relationship and after having obtained the credit it needs, it then wants to lay aside this cloak and again enshroud itself in the garb of a debtor when it comes time to file its income tax return. This, it may not do. No one has yet been able to devise a scheme by which one may eat his cake and yet have it.
As noted, the preferred stock certificates gave the company the option to retire the stock at any time.