(dissenting in part).
I concur in the opinion of Judge MADDEN, except to the extent that it is held “that the intermediate move, unless and without any purpose except to reduce taxes, ought to be disregarded,” and the conclusion therefrom on authority of the case of Commissioner v. Court Holding Company, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981, that plaintiff and other partners of Ladenburg, Thalman and Company were not entitled in their income tax returns to treat the distribution by the Standard Utilities Corporation of the 150,000 shares of stock of the Standard Power and Light Corporation, as a dividend in kind and compute their tax with respect to such dividend at the capital gain rate of 12y2 percent to the extent that the fair market value of said 150,000 shares at the time of the distribution exceeded the sum of $4,361,964.25 representing the earnings and profits of the corporation available for distribution as a dividend.
I think, as pointed out by Judge Whitaker in his concurring opinion, that the distribution by the corporation of the 150,000 shares of stock as a dividend was in all respects a legal and valid distribution, and that the sale of such stock was made by the partnership for its own account and not for and on behalf of the Standard Utilities Corporation; and on the facts of this case it is clearly distinguishable from the ultimate finding by the Tax Court in the Court Holding Company case, supra, and the decisions of the Tax Court and of the Supreme Court on such finding. In the case of Commissioner v. Court Holding Company, supra, the facts which formed the basis of the decisions therein disclosed that, between October 1, 1937 and February 1940, while the corporation still had legal title to the property, which it attempted later to distribute to its stockholders as a liquidating dividend, negotiations for the sale by the corporation of this property took place, and these negotiations were between the corporation and the lessees of the property. As a result of these negotiations an oral agreement was reached as to the terms and conditions of sale by the corporation to said lessees, and on February 22, 1940, the parties met to reduce the agreement to writing. The purchaser was thereupon advised by the corporation’s attorney that, for tax reasons, the sale could not be consummated, and on the next day the corporation declared a liquidating dividend, which passed the property involved to its two stockholders, who then made the sale to the same person or persons who had agreed to purchase the property from the corporation, substantially the same as had been previously agreed upon by the corporation and such person. We do have such facts in this case.
I am, therefore, of the opinion that the first decision of the Commissioner of Internal Revenue in plaintiff’s case on June 19, 1933, in which he treated the value of the 150,000 shares of stock of the Standard Power and Light Company as a dividend taxable to the partners as a net capital gain, to the extent that the fair market value of such stock at the time of distribution exceeded $4,361,962.25, representing the earnings and profits of the corporation available for distribution as a dividend.
The plaintiff argues, and I agree with his argument that the case before this Court does not involve the creation of an artificial or temporary device to escape taxation. In fact, the parties did not even foresee the result for which plaintiff now contends. The corporation declared a valid dividend in kind. Both the corporation and its shareholders continued in business. Not being aware that the dividend was taxable, as such, only to the extent of the earnings and profits available for distribution, the shareholders reported the full value thereof as ordinary income. There is no basis for failing to give full effect to what was done. (Chisholm v. Commissioner, 2 Cir., 79 F.2d 14, 101 A.L.R. 200.) To the extent that the dividend exceeded the accumulated earnings and profits, plus the shareholders’ bases for the stock, the distribution is admittedly taxable as a capital gain.
The sale of the stock involved in this case was negotiated and contracted for by the *136partnership. The purchaser did not know of the existence of any other owner. Having negotiated the sale, the partnership then, as it had a perfect right to do, had the corporation declare the dividend. The partnership paid a tax for the right of thus taking down the stock. If the sale had been halted, as was threatened by a minority group at the last minute, the choice would have resulted in a substantial detriment to the partnership. Having elected to follow this course, the partnership is entitled to be taxed accordingly.
WHALEY, Chief Justice, took no part m the decision of this case.