(dissenting, joined by O’Connor, L). I dissent. The court has concluded that the Appellate Tax Board (board) has appropriately followed the decision in Commissioner of Revenue v. Shafner, 392 Mass. 256 (1984), in its treatment of a liquidation distribution as a dividend. Although both this case and Shafner involve liquidation distributions, the cases are distinguishable in a meaningful way, thus justifying a differing result. First, and most importantly, different taxpayers and business entities are involved ■— individual shareholders and a liquidating corporate trust in Shafner and a corporate shareholder and a liquidating corporation here — requiring the application of different chapters of the General Laws in each instance. Second, the statutory provisions at issue differ. Chapter 62, which was considered in Shafner, specifically included a definition of the term dividend; c. 63 includes no such definition. Third, the liquidating corporate trust in Shafner was taxed by the State. Consequently, taxation of the individual shareholder receiving the liquidating distribution would result in double taxation. Under c. 63, a liquidating corporation is not taxed by the State, and, thus, if the shareholder receiving the corporate liquidation is not taxed, the transaction occurs tax free. Because this does not occur for Federal tax purposes, it is unlikely that the Legislature intended that it occur for State tax purposes.
The board adopted the definition of dividend as provided in I.R.C. § 316 (and as referenced by G. L. c. 62, § 1 [e]) for three reasons:
(1) “Since the Internal Revenue Code provides the source for the definition of Massachusetts gross income, it seems appropriate to use the same source for defining the various components of gross income . . . .” This point does not support *51the board’s determination, however, because gains on liquidation distributions are not included in gross income as a dividend but as dealings in property. Thus, if the Internal Revenue Code is to be looked to for guidance, it should be for the manner in which similar transactions are treated and not for the bald definitions.
(2) “[I]n G. L. c. 63, § 38 (a), ‘dividends’ is used in the same sentence to refer to dividends received on shares in a corporate trust and to those received on any class of stock owned by a corporation, further undercutting the argument that a ‘dividend’ for corporate excise purposes is something different than a personal income tax ‘dividend’.”1 This point also fails to support the board’s conclusion. Northeast contends that, because G. L. c. 63, § 38 (a) (1) (Hi), does not apply in this instance, the liquidation distribution will be deductible if it is determined to be a dividend. Because Shafner has already determined that a liquidation distribution from a corporate trust is a dividend, it will not be deductible under § 38 (a) (1) (i). Given our decision in Shafner and our desire to avoid double taxation, the liquidating distribution from a corporate trust is a distribution that should be deductible. The contrary result required by the statute indicates that the principles in Shafner should not apply.
(3) Finally, the board determined that the term “ ‘[dividend’ ha[d] acquired a peculiar meaning in law by virtue of its definition in the Internal Revenue Code.” While I agree with this statement, and thus we cannot decide this case on the basis of the common understanding of the word dividend, we must look to the treatment of a liquidation distribution and not to the definition of the term dividend under the Internal Revenue Code. When we examine the treatment of this transaction for *52Federal tax purposes, no dividend is involved. Thus, it distorts the analysis to look to the Internal Revenue Code in this instance but return with a result that is inconsistent with the Code.
The court expresses the thought that we remanded this case to the board in order that it should consider the effect of Shafner, and now, after the board accepted the analysis of Shafner, the court should affirm the board’s decision. However, the earlier opinion provided no instructions to the board to apply the principles of Shafner. Thus, a reversal of the board’s decision is not inconsistent with that opinion.2 Furthermore, the board found “troublesome distinction[s]” between Shafner and the instant case and the result produced by the application of Shafner “unpalatable.” Nevertheless, the board found its decision compelled “as a matter of law.” This is a case of statutory construction, and even if we conclude that the views of the board are relevant, we should not be influenced by the reluctant conclusions (as judged by the tone of the decision) reached by the board. I submit that the statutes, properly construed, mandate that the board’s decision be reversed and the liquidation distribution be taxed.
General Laws c. 63, § 38 (a), states in relevant part: “(1) Dividends included [in Net Income] shall be deducted other than dividends from or on account of the ownership of: (z) shares in a corporate trust, as defined in section one of chapter sixty-two, engaged in business in the commonwealth, or . . . (z'z'z) any class of stock, if the corporation owns less than fifteen per cent of the voting stock of the corporation paying such dividend. ”
We stated: “In light of the similarities between Shafner and the facts of the instant case, we conclude that it is appropriate to let the board pass on the question of the applicability of G. L. c. 63, § 38 (a) (1), before we render a judgment on .the question .... Although Shafner involved the taxation of a trust under analogous provisions of G. L. c. 62, the board could apply the principles of that case to the distribution by Energy. . . . On the other hand, the board may decide that the principles of Shafner do not control.” Northeast Petroleum Corp. v. Commissioner of Revenue, 395 Mass. 207, 213-214 (1985).