(dissenting).
I am unable to concur in the foregoing opinion. The reasons therefor will be briefly stated. The prevailing opinion recites the facts at some length but seems to lose sight of the emphasis that should be placed upon certain determinative and uncontradicted findings of the Board of Tax Appeals. Prior to December, 1925, when the transactions in question took place, Elkhorn Coal & Coke Company and Mill Creek Coal & Coke Company, both organized under the laws of West Virginia, had been actively engaged in coal mining operations; the former since its organization in 1889, and the latter since its organization in 1891. One of the Elkhorn Company’s mines was located in McDowell county, W. Va.; the other at Maybeury in that state. Mill Creek’s mines were located at Maybeury, adjacent to the property of Elkhorn. Owners of a controlling interest in the stock of Elkhorn likewise owned a controlling interest in Mill Creek, and the officers of the two companies were largely the same. In December, 1925, it was decided that it would be in the interest of economy to have all of the Maybeury properties owned by the two companies under one management, and for this purpose the reorganization plans outlined in the prevailing opinion were perfected. No claim is made that the transactions between Elkhorn Coal & Coke Company and Elkhorn Coal Company are taxable. The contention is that the transaction between Elkhorn Coal & Coke Company and Mill Creek Coal & Coke Company is taxable. Admittedly, if this transaction is isolated from the antecedent transactions, it was a transfer of all of the assets then owned by the one company to the other in exchange for stock. It is argued, however, that the antecedent transactions, which included the organization of the Elkhorn Coal Company, and the transfer to it by the original company of approximately 80 per cent, of its properties in exchange for stock, and the ultimate liquidation of the original company, showed that the whole transaction was a mere device to permit the sale of the Maybeury mines without incurring the liability for income and profits tax. In this connection we call attention to the fact that the very purpose of the statute in question was to permit, through corporate reorganization, an exchange of corporate stock without tax liability at the time, permitting the holder of the stock to await its sale before incurring such liability. Two facts should be borne in mind in determining the questions at issue; first, that the Elk-horn Coal & Coke Company received nothing but stock and in turn transferred to its stockholders nothing but stock in exchange for its properties; second, that the primary purpose of the plan of reorganization related to a more economical operation of the mining properties which had previously been carried on for many years, and which have since been carried on for approx1 imately twelve years. The case is in striking contrast with that of Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355, and, so far from regarding that case as requiring a reversal of the decision of the Board of Tax Appeals, I am convinced that it furnishes ample authority for sustaining the Board. In the Gregory Case, the court said that if a reorganization is in reality effected within the meaning of the statute, its ultimate purpose will be disregarded since the legal right of the taxpayer to decrease the amount of what would otherwise be his taxes, or altogether avoid them by means which the law permits, cannot be doubted. The court held, however, that : “When subdivision (B) speaks of a transfer of assets by one corporation to another, it means a transfer made ‘in pursuance of a plan of reorganization’ (section 112(g) [26 U.S.C.A. § 112 note]) of corporate business; and not a transfer of assets by one corporation to another in pursuance of a plan having no relation to the business of either, as plainly is the case here.” (Italics ours.) It was further held that that case involved “Simply an operation having no business or corporate purpose — a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplish*737ment of which was the consummation ot a preconceived plan, not to reorganize a business or any part of a business, but to transfer a parcel of corporate shares to the petitioner. .No doubt, a new and valid corporation was created. But that corporation was nothing more than a contrivance to the end last described. It was brought into existence for no other purpose; it performed, as it was intended from the beginning it should perform, no other function. When that limited function had been exercised, it immediately was put to death.” In that case, Mrs. Gregory was the owner of all of the stock of the United Mortgage Corporation, which held among its assets 1,000 shares of the Monitor Securities Corporation. For the sole purpose of procuring a transfer of these shares to herself in order to sell them, as she did immediately sell them for her individual profit, and at the same time to diminish the amount of income tax which would have resulted from direct transfer by way of dividend, she organized the Averill Corporation of which likewise she was the sole owner, and had the United Mortgage Corporation transfer to it the 1,000 shares of Monitor stock in exchange for all the corporate shares of the Averill Corporation. Having been organized on September 18, 1928, and transacted the business for which it was brought into .life, the Averill Corporation was six days later, on September 24th, dissolved by distributing all of its assets, namely, the Monitor shares, to Mrs. Gregory. No other business was ever transacted or intended to be transacted. Contrast these facts with those above set out in the instant case, where the new corporation immediately entered into the active business of mining and has ever since discharged the mining functions for which it was chartered, and in which also the Mill Creek Company, in which other shares were acquired, was then fulfilling, and is still fulfilling, its corporate business of mining. There was no sham or pretense about the whole matter. It seems to me that the case comes more nearly under the decision of the Fifth Circuit Court of Appeals, David Gross v. Commissioner of Internal Revenue, 88 F.(2d) 567, which reverses David Gross, 34 B.T.A. 395; the last-mentioned case being one of those relied upon by the dissenting members of the Board of Tax Appeals in the Elkhorn Case.