Haystone Sec. Corp. v. Commissioner

*957OPINION.

The petitioner maintains that a distribution received by it in the amount of $368,200 on March 1, 1923, under the resolution of February 15,1923, declaring a dividend of which its share was that amount, was an ordinary dividend to the extent of $206,983.42, *958the amount of earnings of the Pond Creek Coal Co. accumulated since February 28,1913, included in such distribution; that the balance of such distribution, amounting to $161,216.58, representing a distribution of paid-in surplus, should be applied against and reduce the cost of the stock to the petitioner; and that the distribution to the petitioner of $105,200 on May 9, 1923, in liquidation of the Pond Creek Coal Co., resulted in a loss of $191,401.42, this being the amount by which the cost of the stock, $457,818, exceeded the sum of the above mentioned $161,216.58, and the above mentioned $105,-200. Counsel for the respondent made no oral argument and filed no brief, so the only justification for the Commissioner’s action we find in the explanation of the deficiency notice, which was in part as follows:

Article 1545, Regulations 62 provides that “ where a corporation distributes all its property in complete liquidation or dissolution, the gain realized by the stockholder from this transaction, computed under section 202, is taxable as a dividend to the extent that it is paid out of earnings or profits of the corporation accumulated since February 28, 1913.”

Accordingly the difference between the $473,400.00 received in liquidation and the cost of the stock $457,818.00 or $15,582.00 is held to be profit taxable as dividends.

Following the principles laid down in our previous decisions, our judgment in this case must be for the petitioner, regardless of whether the portion of the dividend in question was an ordinary dividend or a distribution in liquidation. E. G. Perry, 9 B. T. A. 796; Deposit Trust & Savings Bank, Executor, 11 B. T. A. 706; Frank D. Darrow, 8 B. T. A. 276; Philetus W. Gates, 9 B. T. A. 1133; Eric A. Pearson, 16 B. T. A. 1405. Cf. James Dobson, 1 B. T. A. 1082; A. B. Nickey & Sons, 3 B. T. A. 173.

Judgment will be entered for the petitioner.