OPINION.
Tietjens, Judge:
This proceeding involves a deficiency in income tax for tbe taxable year 1954 in the amount of $16,875, and an addition thereto under section 294(d)(2) of the 1939 Code in the amount of $1,012.50.
The issue for decision is whether the transfer by the Christopher Construction Company of a portion of its assets to E. P. Coady and Co. in exchange for all of the Coady Company’s stock, and the subsequent distribution by the Christopher Company of such Coady stock to petitioner in exchange for his Christopher stock, constituted a distribution of stock qualifying for tax-free treatment on the shareholder level under the provisions of section 355 of the 1954 Internal Revenue Code.
All of the facts were stipulated, are so found, and are incorporated herein by this reference.
Edmund P. Coady (hereinafter referred to as the petitioner) and Virginia Coady, husband and wife and residents of Columbus, Ohio, filed their joint Federal income tax return for the taxable year 1954 with the district director of internal revenue at Columbus, Ohio.
Christopher Construction Co., an Ohio corporation, is now engaged, and for more than 5 years prior to November 15, 1954, was engaged, in the active conduct of a construction business primarily in and around Columbus, Ohio. In an average year the Christopher Company undertook approximately 6 construction contracts, no one of which lasted for more than 2 years. Its gross receipts varied between $1,500,000 and $2,000,000 per year.
At its central office, located at 16 East Broad Street in Columbus, the Christopher Company kept its books of account, paid its employees, prepared bids for its jobs, and, excepting minor amounts of tools and supplies, made its purchases. In addition, it maintained temporary field offices at each jobsite. It also maintained a central repair and storage depot for its equipment. Equipment in use on particular jobs was kept at the jobsite until work was terminated. Then, it would either be returned to the central depot or moved to another jobsite.
At all times material hereto, the stock of the Christopher Company was owned by M. Christopher and the petitioner. For a number of years, petitioner owned 35 per cent of that stock and Christopher owned 65 per cent. However, on April 19, 1954, petitioner purchased 15 per cent of the total stock from Christopher. From that date until November 15, 1954, each owned 50 per cent of the company’s stock.
Sometime prior to November 15, 1954, differences arose between the petitioner and Christopher. As a result, they entered into an agreement for the division of the Christopher Company into two separate enterprises. Pursuant to that agreement, the Christopher Company, on November 15, 1954, organized E. P. Coady and Co., to which it transferred the following assets, approximating one-half the Christopher Company’s total assets:
A contract for the construction of a sewage disposal plant at Columbus, Ohio, dated June 1, 1954.
A part of its equipment.
A part of its cash, and certain other items.
In consideration for the receipt of these assets, E. P. Coady and Co. transferred all of its stock to the Christopher Company. The Christopher Company retained the following assets, which were of the same type as those transferred to E. P. Coady and Co.:
A contract for a sewage treatment plant in Charleston, West Virginia.
A part of its equipment.
A part of its cash.
Immediately thereafter, the Christopher Company distributed to the petitioner all of the stock of E. P. Coady and Co. held by it in exchange for all of the stock of the Christopher Company held by petitioner. The fair market value of the stock of E. P. Coady and Co. received by petitioner was $140,000. His basis in the Christopher Company stock surrendered was $72,500.
Since the distribution, both E. P. Coady and Co. and the Christopher Company have been actively engaged in the construction business.
On their 1954 Federal income tax return, petitioner and his wife reported no gain or loss on the exchange of the Christopher Company stock for the stock of E. P. Coady and Co.
Respondent determined that petitioner realized a capital gain on that exchange in the amount of $67,500, 50 per cent of which was taxable in 1954.
Petitioner contends that the distribution to him of the E. P. Coady and Co. stock qualified for tax-free treatment under the provisions of section 355 of the 1954 Code,1 arguing that it was received pursuant to a distribution of a controlled corporation’s stock within the meaning of that section.
Respondent on the other hand maintains petitioner’s receipt of the Coady stock did not fall within those distributions favored by section 355, inasmuch as the 5-year active business requirements of 355(b) were not met. More particularly he argues that section 355 does not apply to the separation of a “single business”; and, inasmuch as the Christopher Company was engaged in only one trade or business (construction contracting), the gain realized by petitioner upon receipt of the Coady stock was taxable. As authority for his position respondent points to that portion of his regulations which expressly provides that section 355 does not apply to the division of a single business.2
Conceding that the Christopher Company was engaged in a “single business” immediately prior to the instant transaction, petitioner contends that the regulations, insofar as they limit the applicability of section 355 to divisions of only those corporations which have conducted two or more separate and distinct businesses for a 5-year period, are without support in the law, are without justification, are unreasonable and arbitrary, and therefore are invalid.
Thus, the issue is narrowed to the question of whether the challenged portion of the regulations constitutes a valid construction of the statute, or whether it is unreasonable and plainly inconsistent therewith. Though this appears to be a case of first impression, the question has not gone without comment.3
Section 355 of the 1954 Code represents the latest of a series of legislative enactments designed to deal with the tax effect upon shareholders of various corporate separations. Where the 1939 Code contained three sections, 112(b) (3), 112(b) (11), and 112(g) (1) (D), which controlled the tax impact of these exchanges, present law groups the statutory requirements into two sections, 355 and 368(c). A careful reading of section 355, as well as the Finance Committee report4 which accompanied its enactment, reveals no language, express or implied, denying tax-free treatment at the shareholder level to a transaction, otherwise qualifying under section 355, on the grounds that it represents the division or separation of a “single” trade or business.
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OPINION.
Tietjens, Judge:
This proceeding involves a deficiency in income tax for tbe taxable year 1954 in the amount of $16,875, and an addition thereto under section 294(d)(2) of the 1939 Code in the amount of $1,012.50.
The issue for decision is whether the transfer by the Christopher Construction Company of a portion of its assets to E. P. Coady and Co. in exchange for all of the Coady Company’s stock, and the subsequent distribution by the Christopher Company of such Coady stock to petitioner in exchange for his Christopher stock, constituted a distribution of stock qualifying for tax-free treatment on the shareholder level under the provisions of section 355 of the 1954 Internal Revenue Code.
All of the facts were stipulated, are so found, and are incorporated herein by this reference.
Edmund P. Coady (hereinafter referred to as the petitioner) and Virginia Coady, husband and wife and residents of Columbus, Ohio, filed their joint Federal income tax return for the taxable year 1954 with the district director of internal revenue at Columbus, Ohio.
Christopher Construction Co., an Ohio corporation, is now engaged, and for more than 5 years prior to November 15, 1954, was engaged, in the active conduct of a construction business primarily in and around Columbus, Ohio. In an average year the Christopher Company undertook approximately 6 construction contracts, no one of which lasted for more than 2 years. Its gross receipts varied between $1,500,000 and $2,000,000 per year.
At its central office, located at 16 East Broad Street in Columbus, the Christopher Company kept its books of account, paid its employees, prepared bids for its jobs, and, excepting minor amounts of tools and supplies, made its purchases. In addition, it maintained temporary field offices at each jobsite. It also maintained a central repair and storage depot for its equipment. Equipment in use on particular jobs was kept at the jobsite until work was terminated. Then, it would either be returned to the central depot or moved to another jobsite.
At all times material hereto, the stock of the Christopher Company was owned by M. Christopher and the petitioner. For a number of years, petitioner owned 35 per cent of that stock and Christopher owned 65 per cent. However, on April 19, 1954, petitioner purchased 15 per cent of the total stock from Christopher. From that date until November 15, 1954, each owned 50 per cent of the company’s stock.
Sometime prior to November 15, 1954, differences arose between the petitioner and Christopher. As a result, they entered into an agreement for the division of the Christopher Company into two separate enterprises. Pursuant to that agreement, the Christopher Company, on November 15, 1954, organized E. P. Coady and Co., to which it transferred the following assets, approximating one-half the Christopher Company’s total assets:
A contract for the construction of a sewage disposal plant at Columbus, Ohio, dated June 1, 1954.
A part of its equipment.
A part of its cash, and certain other items.
In consideration for the receipt of these assets, E. P. Coady and Co. transferred all of its stock to the Christopher Company. The Christopher Company retained the following assets, which were of the same type as those transferred to E. P. Coady and Co.:
A contract for a sewage treatment plant in Charleston, West Virginia.
A part of its equipment.
A part of its cash.
Immediately thereafter, the Christopher Company distributed to the petitioner all of the stock of E. P. Coady and Co. held by it in exchange for all of the stock of the Christopher Company held by petitioner. The fair market value of the stock of E. P. Coady and Co. received by petitioner was $140,000. His basis in the Christopher Company stock surrendered was $72,500.
Since the distribution, both E. P. Coady and Co. and the Christopher Company have been actively engaged in the construction business.
On their 1954 Federal income tax return, petitioner and his wife reported no gain or loss on the exchange of the Christopher Company stock for the stock of E. P. Coady and Co.
Respondent determined that petitioner realized a capital gain on that exchange in the amount of $67,500, 50 per cent of which was taxable in 1954.
Petitioner contends that the distribution to him of the E. P. Coady and Co. stock qualified for tax-free treatment under the provisions of section 355 of the 1954 Code,1 arguing that it was received pursuant to a distribution of a controlled corporation’s stock within the meaning of that section.
Respondent on the other hand maintains petitioner’s receipt of the Coady stock did not fall within those distributions favored by section 355, inasmuch as the 5-year active business requirements of 355(b) were not met. More particularly he argues that section 355 does not apply to the separation of a “single business”; and, inasmuch as the Christopher Company was engaged in only one trade or business (construction contracting), the gain realized by petitioner upon receipt of the Coady stock was taxable. As authority for his position respondent points to that portion of his regulations which expressly provides that section 355 does not apply to the division of a single business.2
Conceding that the Christopher Company was engaged in a “single business” immediately prior to the instant transaction, petitioner contends that the regulations, insofar as they limit the applicability of section 355 to divisions of only those corporations which have conducted two or more separate and distinct businesses for a 5-year period, are without support in the law, are without justification, are unreasonable and arbitrary, and therefore are invalid.
Thus, the issue is narrowed to the question of whether the challenged portion of the regulations constitutes a valid construction of the statute, or whether it is unreasonable and plainly inconsistent therewith. Though this appears to be a case of first impression, the question has not gone without comment.3
Section 355 of the 1954 Code represents the latest of a series of legislative enactments designed to deal with the tax effect upon shareholders of various corporate separations. Where the 1939 Code contained three sections, 112(b) (3), 112(b) (11), and 112(g) (1) (D), which controlled the tax impact of these exchanges, present law groups the statutory requirements into two sections, 355 and 368(c). A careful reading of section 355, as well as the Finance Committee report4 which accompanied its enactment, reveals no language, express or implied, denying tax-free treatment at the shareholder level to a transaction, otherwise qualifying under section 355, on the grounds that it represents the division or separation of a “single” trade or business.
In general, section 355(a) prescribes the form in which a qualifying transaction must be cast, providing that a divisive distribution will not give rise to taxable gain or loss if: (1) The distributing corporation distributes stock or securities of a corporation of which it has, immediately prior to the distribution, 80 per cent control as defined in section 368(c); (2) the distribution is not principally a device for distributing earnings and profits of either the distributing or controlled corporations; (3) the 5-year active business requirements of 355(b) are satisfied; and (4) the distributing corporation distributes either all its stock and securities in the controlled corporation, or so much thereof as constitutes control, as defined in 368(c), and retention of the balance is shown not to be in pursuance of a plan having as one of its principal purposes tax avoidance. The distribution itself must be either tó a shareholder with respect to its stock, or a security, holder with respect to its securities. With respect to a distribution of stock, the distribution need not be on a pro rata basis; the shareholder need not surrender stock in the distributing corporation; and the distribution need not have been made in pursuance of a plan of reorganization. However, subsection (a) contains no language which would require that distributing corporation be engaged in more than one trade or business prior to the distribution.
The-aclive busiiT^S £equirements of 355(b)(1) prohibit the tax-free separation of a corporation into active and inactive entities. Section 355(b) (1) (A) extends the provisions of 355(a) only to those divisive distributions where the distributing corporation and the controlled corporation are engaged immediately after the distribution in the active conduct of a trade or business. In the- case of those distributions which involve liquidation of the transferor, 355(b) (1) (B) requires that immediately before the distribution the transferor have no assets other than stock or-securities in the controlled corporations, and that immediately thereafter each of the controlled corporations is engaged in the active conduct of a trade or business. Neither 355(b)(1) (A) nor (B) concerns itself with the existence of a plurality of businesses per se; rather both speak in terms of a plurality of corporate entities engaged in the active conduct of a trade or business, a distinction we believe to be vital in light of provisions of 355(b) (2).
Section 355(b)(2) details the rules for determining whether a corporation is engaged in the active conduct of a trade or business, and provides that a corporation shall be treated as so engaged, if, and only if: (1) It is engaged in the active conduct of a trade or business, or substantially all its assets consist of stock and securities of a corporation controlled by it immediately after the distribution which is so engaged; (2) such trade or business has been actively conducted throughout the 5-year period ending on the date of the distribution; (3) such trade or business was not acquired within that 5-year period in a transaction in which gain or loss was recognized; and (4) control of a corporation, which at the time of acquisition of control was conducting such trade or business, was not acquired within that 5-year period, or, if acquired within that period, was acquired by reason of a transaction in which no gain or loss was recognized, or by reason of such transactions combined with acquisitions made before the beginning of that 5-year period. Again we note the statute avoids the use of the plural when referring to “trade or business,” but rather provides that: “[A] corporation shall be treated as engaged in the active conduct of a trade or business if and only if * * * it is engaged in the active conduct of a trade or business * * * [and] such trade or business has been actively conducted through the 5-year period ending on the date of the distribution.” (Emphasis supplied.)
Eespondent maintains that a reading of 355(b)(2)(B) in conjunction with the requirement of 355(b)(1) that both “the distributing corporation, and the controlled corporation * * *, [be] engaged immediately after the distribution in the active conduct of a trade or business” (emphasis supplied) indicates Congress intended the provisions of the statute to apply only where, immediately after the distribution, there exist two separate and distinct businesses, one operated by the distributing corporation and one operated by the controlled corporation, both of which were actively conducted for the 5-year period immediately preceding the distribution. In our judgment the statute does not support this construction.
As noted, the only reference to plurality appears in section 355 (b)(1), and deals with corporate entities, not businesses. Recognizing the divisive nature of the transaction, subsection (b) (1) contemplates that where there was only one corporate entity prior to the various transfers, immediately subsequent thereto, there will be. two or more corporations. In order to insure that a tax-free separation will involve the separation only of those assets attributable to the carrying on of an active trade or business, and further to prevent the tax-free division of an active corporation into active and inactive entities, (b) (1) further provides that each of the surviving corporations must be engaged in the active conduct of a trade or business.
A careful reading of the definition of the active conduct of a trade or business contained in subsection (b) (2) indicates that its function is also to prevent the tax-free separation of aotwe and mactive assets into actwe and inactwe corporate entities. This is apparent from the use of the adjective “such,” meaning before-mentioned, to modify “trade or business” in subsection (b) (2) (B), thus providing that the trade or business, required by (b) (2) (B) to have had a 5-year active history prior to the distribution, is the same trade or business which (b) (2) (A) requires to be actively conducted immediately after the distribution. Nowhere in (b) (2) do we find, as respondent suggests we should, language denying the benefits of section 355 to the division of a single trade or business.
Nor can respondent derive support for his position by reading subsections (b) (1) and (b) (2) together, inasmuch as the plurality resulting therefrom is occasioned, not by any requirement that there be a multiplicity of businesses, but rather by the divisive nature of the transaction itself: i.e., one corporation becoming two or more corporations. Moreover, from the fact that .the statute requires, immediately after the distribution, that the surviving corporations each be engaged in the conduct of a trade or business with an active 5-year history, we do not think it inevitably follows that each such trade or business necessarily must.httve been conducted on an individual basis throughout that 5-year period. As long as the trade or business which has been divided has been actively conducted for 5 years preceding the distribution, and the resulting businesses (each of which in this case, happens to be half of the original whole) are actively conducted after the division, we are of the opinion that the active business requirements of the statute have been complied with.
Kespondent argues his construction of section 355 is confirmed by the report of the Senate Committee on Finance which accompanied the 1954 Internal Kevenue Code.5 He refers us to that portion of the report which provides:
Present law contemplates that a tax-free separation shall involve only the separation of assets attributable to the carrying on of an active business. Under the House bill, it is immaterial whether the assets are those used in an active business but if investment assets, for example, are separated into a new corporation, any amount received in respect of such an inactive corporation, whether by a distribution from it or by a sale of its stock, would be treated as ordinary income for a period of 10 years from the date of its creation. Your committee returns to existing law in not permitting the tax free separation of an existing corporation into áctive^n.tí inactive^entities. It is not believed that the business need for this“Eind of'Iransaction is sufficiently great to permit a person in a position to afford a 10-year delay in receiving income to do so at capital gain rather than dividend rates. Your committee requires that both the business retained by the distributing company and the business of''the corporation the stock of which is distributed must have been actively conducted for the 5 years preceding the distribution, a safeguard against avoidance not contained in existing law. [Emphasis supplied.]
He argues that use of the term “both,” with reference to the business retained by the distributing corporation and that operated by the controlled corporation, indicates that Congress intended there be in operation and existence during the 5 years preceding the distribution two or more separate and distinct businesses. We do not agree.
A reading of the quoted section of the report in its entirety reveals that the committee was addressing itself to the nature and the use of the particular assets which were transferred (active v. inactive) , rather than to any distinction between one or more businesses This is obvious when the entire paragraph is considered in the light of its topic sentence. The committee notes that under present law only assets attributable to the carrying on of an active trade or business may be separated tax free. After acknowledging a departure from this requirement in the House bill, the committee disapproves of the position taken by the House, and indicates it is returning to existing law by not permitting the tax-free separation of a corporation into active and inactive entities, and strengthens this provision by requiring that both the business retained by the distributing corporation and that of the controlled corporation must have been actively conducted for 5 years preceding the distribution. The excerpt makes no mention of trades or businesses per se.
Respondent next argues the regulations upon which he relies are entitled to additional stature due to the fact that the Technical Amendments Act of 1958 (72 Stat. 160), which was intended to eliminate unintended benefits and hardships contained in the 1954 Code, was enacted subsequent to- their promulgation, and, while making extensive changes in many sections of the statute, made no change in section 355. He relies upon the rule which attributes congressional approval to long-standing regulations under a section of the Internal Revenue Code where the section has been often amended without a revision of its administrative interpretation. See Lykes v. United States, 343 U.S. 118 (1952), rehearing denied 343 U.S. 937 (1952).
We note that the final regulations under subchapter C of the 1954 Code became effective on December 2, 1955, and that the Technical Amendments Act of 1958 was enacted on September 2, 1958. Further we note that section 355 has not been amended since its enactment in August of 1954. Thus, it is apparent that the challenged ‘jregulations have neither the longevity nor the congressional approval Alluded to in Lykes v. United States, supra.
There being no language, either in the statute or committee report, which denies tax-free treatment under section 355 to a transaction solely on the grounds that it represents an attempt to divide a single trade or business, the Commissioner’s regulations which impose such a restriction are invalid, and cannot be sustained. Commissioner v. Acker, 361 U.S. 87 (1959).
Finally, respondent argues that there is presently pending in Congress legislation (H.R. 4459) which would revise section 355(a)(1) (B) so as to permit a nontaxable distribution if either: (1) The active business requirements of 355(b) are met; or (2) it is established to the satisfaction of the Secretary or his delegate that the distribution is not made for the purpose of avoiding tax. As interpretative of this pending legislation, respondent directs our attention to a report dated December 11, 1958, of The Advisory Group on Subchapter C of the Internal Revenue Code of 1954, appointed by the House Subcommittee on Internal Revenue Taxation, wherein it is stated at page 65:
It is further provided in section 355(a) (1) (B) (ii) of the proposed revision that even though the transaction does not otherwise qualify under section 355 because of failure to satisfy the active business requirements or the 20 percent distribution requirement, it will nevertheless qualify under section 355 if it is established to the satisfaction of the Secretary or his delegate that the distribution is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income tax. For example, eveni^ihe. controlled corporation and the distributing corporation are not engagecTin separate bustness.cs, the Secretary or his delegate might find thdFáTdivísioñróf a singfiTbUsiness qualifies under section S55, particularly where after the division certain stockholders will own stock in only one of the corporations and the remaining stockholders will own only stock in the other corporation. Permitting some latitude in administration of the section should serve to prevent a rigid interpretation of the requirements of clause (i). [Emphasis supplied.]
Relying on the italicized language, respondent argues that under the law as presently written, the division of a single trade or business does not qualify for tax-free treatment under section 355.
The short answer to this argument is that fending legislation in no way is binding on this Court. Until enacted, H. R. 4459 represents a course of action Congress may or may not take. Moreover, the cited report was not prepared by any congressional committee, but rather by an advisory group appointed to assist in a study of subchapter C of the 1954 Code. Quite possibly, the proposed revision of section 355 was occasioned by the restrictive nature of the Commissioner’s regulations, rather than by any interpretation of the nature of existing law. In any event, respondent’s reliance upon' either the bill or the report as indicative of existing law is misplaced.
Inasmuch as the parties treat the distribution as otherwise qualifying under section 355 for tax-free treatment, and inasmuch as we have found that portion of the regulations denying application of section 355 to the division of a single business to be invalid, we con-elude that petitioner properly treated the distribution to him of the stock of E. P. Coady and Co. as a nontaxable transaction.
No evidence having been introduced with respect to the addition to tax under section 294(d) (2) of the 1939 Code, it is sustained subject to our holding on the above issue.
Eeviewed by the Court.
Decision will be entered under Bule 50.
Pierce, J., dissents.