OPINION.
HaRron, Judge:
The petitioner, who was an officer and director of United Drug, Inc., owned shares of stock in the corporation which he had purchased in 1938 and 1940. On October 25,1945, and December 1, 1945, he sold 1,000 shares of this stock for $25,441.50, realizing a long term capital gain of $20,469.62. Less than 6 months after these sales, the petitioner purchased 1,000 shares of the company’s stock under an option which had been granted to him and other executives of the corporation at an option price of $12.75 per share. Incidental expenses raised the total cost of the shares to $12,782.50. Because the purchase was made less than 6 months after the sale of the 1,000 shares previously held by the petitioner, the Securities and Exchange Commission determined that the petitioner had violated section 16 (b) of the Securities Exchange Act of 19341 and that United Drug, Inc., was entitled to recover $12,659, which was the difference between the $12,782.50 paid by the petitioner for 1,000 shares and the $25,441.50 realized by him from the sale of 1,000 shares less than 6 months previously. The Securities and Exchange Commission thereupon notified the United Drug, Inc., that the Commission would not approve the corporation’s annual proxy statement unless either the petitioner paid over $12,659 to United Drug, Inc., or it was disclosed in the company’s annual proxy statement that the petitioner was indebted to United Drug, Inc., for $12,659, which was recoverable by the company or any holder of one of its equity securities suing in its behalf under section 16 (b) of the Securities Exchange Act of 1934. Thereafter, upon demand by United Drug, Inc., pursuant to section 16 (b), the petitioner paid to the corporation $12,659 on April 8,1946. The petitioner now seeks to deduct this payment either as a business expense under section 23 (a) (1) of the Internal Revenue Code or as a loss under section 23 (e).
The respondent bases his determination that the payment is not a proper deduction under either section 23 (a) (1) or section 23 (e) primarily on the ground that the payment was a penalty imposed on the petitioner by section 16 (b) of the Securities Exchange Act of 19342 and that to allow its deduction would frustrate the clear policy defined in section 16 (b). The petitioner, however, contends that the obligation imposed by section 16 (b) of the Securities Exchange Act of 1934 upon an officer or director of a corporation to pay over to his company the “insider’s profits” realized from transactions within section 16 (b) is not a penalty, and that even if the payment of such an obligation is a penalty, the allowance of a deduction for its payment would not contravene the public policy expressed in section 16 (b).
Decision that the payment in question was in the nature of a penalty will not resolve the ultimate issue in this proceeding. The essential inquiry must be not only into the character of the payment made but also into the cognate question of whether the deduction of the payment in issue will frustrate any sharply defined public policy expressed in section 16 (b) of the Securities Exchange Act and subvert the purposes of that statute. As was said in National Brass Works, Inc. v. Commissioner, 182 F. 2d 526:
The real reason for denying the deductibility of “penalties” is not that they are characterized as such but because allowance in many cases would be against public policy. As the Supreme Court stated in Commissioner v. Heininger, 320 U. S. 467, 473 (1943), a tax deduction must not “frustrate * * * [any] sharply defined * * * policies” of the sovereign. It is true that neither the tax statute nor the treasury regulations condition deductibility upon the lawful character, either directly or remotely, of the expenditure made, * * * But, in the nature of things, public policy must narrow the field of allowable deductions which rest as they do upon legislative indulgence.
See also, Rossman Corp. v. Commissioner, 175 F. 2d 711, reversing 10 T. C. 468; Farmers Creamery Co. of Fredericksburg, Va., 14 T. G. 879.
Based upon our examination of the extent and nature of the liability imposed by section 16 (b) and the application of that section to the petitioner’s transactions, we have concluded that the obligation imposed by the section is in the nature of a penalty and that allowance of its deduction under the circumstances of this proceeding would frustrate the public policy expressed in the section. The Securities Exchange Act of 1934 is a comprehensive statute whose prime objective was the establishment and maintenance of a free and open market for trading in securities in which the prices obtained would represent an evaluation of worth based upon a full knowledge by all traders of the pertinent and available data. Securities Exchange Act of 1934, section 2, 48 Stat. 881 (1934), 15 IT. S. C., section 78 (b) (1946). Because corporate directors, officers, and substantial stockholders, by reason of their inside position, have access to information not available to the market generally and, by reason of their managerial control, are able to influence the destinies of their companies in order to profit from market activities, section 16 (b) was devised to deprive such insiders of an incentive to take advantage of their corporate positions by removing the profit from all short-swing speculations by corporate .directors, officers, or substantial stockholders. Report of the Senate Committee on Banking and Currency, S. Kept. No. 1455, 73d Cong., 2d Sess., p. 55 (1934); Smolowe v. Delendo, 136 F. 2d 231; Benisch v. Cameron, 81 F. Supp. 882; Grossman v. Young, 70 F. Supp. 970. Section 16 (b) provides that any profits realized by corporate insiders from “any purchase and sale, or any sale and purchase, of any equity security [of their own corporation] within any period of less than 6 months, shall inure to and be recoverable by” the corporation. The purpose of the section was to be “thoroughgoing, to squeeze all possible profits out of stock transactions, and thus to establish a standard so high as to prevent any conflict between the selfish interest of a fiduciary officer, director, or stockholder and the faithful performance of his duty.” Smolowe v. Delendo, supra.
Although “the words ‘penal’ and ‘penalty’ have many different shades of meaning, and are in fact among the most elastic terms known to law,” Ward v. Rice, 29 F. Supp. 714, 715, in Rossman Corp. v. Commissioner, supra, the Court of Appeals for the Second Circuit examined the functional nature of a penalty and determined that:
Taken in its broadest sense that word [penalty] has a pnnitiye, as opposed to a remedial, meaning; it covers fines and other exactions which are not restitution for a wrong, and are only justified as a deterrent, or in order to satisfy an atavistic craving for retaliation.
See also, Huntington v. Attrill, 146 U. S. 657; Atchison, Topeka & Santa Fe Ry. v. Nichols, 264 U. S. 848; [Restatement, Conflict of Laws, section 611.
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OPINION.
HaRron, Judge:
The petitioner, who was an officer and director of United Drug, Inc., owned shares of stock in the corporation which he had purchased in 1938 and 1940. On October 25,1945, and December 1, 1945, he sold 1,000 shares of this stock for $25,441.50, realizing a long term capital gain of $20,469.62. Less than 6 months after these sales, the petitioner purchased 1,000 shares of the company’s stock under an option which had been granted to him and other executives of the corporation at an option price of $12.75 per share. Incidental expenses raised the total cost of the shares to $12,782.50. Because the purchase was made less than 6 months after the sale of the 1,000 shares previously held by the petitioner, the Securities and Exchange Commission determined that the petitioner had violated section 16 (b) of the Securities Exchange Act of 19341 and that United Drug, Inc., was entitled to recover $12,659, which was the difference between the $12,782.50 paid by the petitioner for 1,000 shares and the $25,441.50 realized by him from the sale of 1,000 shares less than 6 months previously. The Securities and Exchange Commission thereupon notified the United Drug, Inc., that the Commission would not approve the corporation’s annual proxy statement unless either the petitioner paid over $12,659 to United Drug, Inc., or it was disclosed in the company’s annual proxy statement that the petitioner was indebted to United Drug, Inc., for $12,659, which was recoverable by the company or any holder of one of its equity securities suing in its behalf under section 16 (b) of the Securities Exchange Act of 1934. Thereafter, upon demand by United Drug, Inc., pursuant to section 16 (b), the petitioner paid to the corporation $12,659 on April 8,1946. The petitioner now seeks to deduct this payment either as a business expense under section 23 (a) (1) of the Internal Revenue Code or as a loss under section 23 (e).
The respondent bases his determination that the payment is not a proper deduction under either section 23 (a) (1) or section 23 (e) primarily on the ground that the payment was a penalty imposed on the petitioner by section 16 (b) of the Securities Exchange Act of 19342 and that to allow its deduction would frustrate the clear policy defined in section 16 (b). The petitioner, however, contends that the obligation imposed by section 16 (b) of the Securities Exchange Act of 1934 upon an officer or director of a corporation to pay over to his company the “insider’s profits” realized from transactions within section 16 (b) is not a penalty, and that even if the payment of such an obligation is a penalty, the allowance of a deduction for its payment would not contravene the public policy expressed in section 16 (b).
Decision that the payment in question was in the nature of a penalty will not resolve the ultimate issue in this proceeding. The essential inquiry must be not only into the character of the payment made but also into the cognate question of whether the deduction of the payment in issue will frustrate any sharply defined public policy expressed in section 16 (b) of the Securities Exchange Act and subvert the purposes of that statute. As was said in National Brass Works, Inc. v. Commissioner, 182 F. 2d 526:
The real reason for denying the deductibility of “penalties” is not that they are characterized as such but because allowance in many cases would be against public policy. As the Supreme Court stated in Commissioner v. Heininger, 320 U. S. 467, 473 (1943), a tax deduction must not “frustrate * * * [any] sharply defined * * * policies” of the sovereign. It is true that neither the tax statute nor the treasury regulations condition deductibility upon the lawful character, either directly or remotely, of the expenditure made, * * * But, in the nature of things, public policy must narrow the field of allowable deductions which rest as they do upon legislative indulgence.
See also, Rossman Corp. v. Commissioner, 175 F. 2d 711, reversing 10 T. C. 468; Farmers Creamery Co. of Fredericksburg, Va., 14 T. G. 879.
Based upon our examination of the extent and nature of the liability imposed by section 16 (b) and the application of that section to the petitioner’s transactions, we have concluded that the obligation imposed by the section is in the nature of a penalty and that allowance of its deduction under the circumstances of this proceeding would frustrate the public policy expressed in the section. The Securities Exchange Act of 1934 is a comprehensive statute whose prime objective was the establishment and maintenance of a free and open market for trading in securities in which the prices obtained would represent an evaluation of worth based upon a full knowledge by all traders of the pertinent and available data. Securities Exchange Act of 1934, section 2, 48 Stat. 881 (1934), 15 IT. S. C., section 78 (b) (1946). Because corporate directors, officers, and substantial stockholders, by reason of their inside position, have access to information not available to the market generally and, by reason of their managerial control, are able to influence the destinies of their companies in order to profit from market activities, section 16 (b) was devised to deprive such insiders of an incentive to take advantage of their corporate positions by removing the profit from all short-swing speculations by corporate .directors, officers, or substantial stockholders. Report of the Senate Committee on Banking and Currency, S. Kept. No. 1455, 73d Cong., 2d Sess., p. 55 (1934); Smolowe v. Delendo, 136 F. 2d 231; Benisch v. Cameron, 81 F. Supp. 882; Grossman v. Young, 70 F. Supp. 970. Section 16 (b) provides that any profits realized by corporate insiders from “any purchase and sale, or any sale and purchase, of any equity security [of their own corporation] within any period of less than 6 months, shall inure to and be recoverable by” the corporation. The purpose of the section was to be “thoroughgoing, to squeeze all possible profits out of stock transactions, and thus to establish a standard so high as to prevent any conflict between the selfish interest of a fiduciary officer, director, or stockholder and the faithful performance of his duty.” Smolowe v. Delendo, supra.
Although “the words ‘penal’ and ‘penalty’ have many different shades of meaning, and are in fact among the most elastic terms known to law,” Ward v. Rice, 29 F. Supp. 714, 715, in Rossman Corp. v. Commissioner, supra, the Court of Appeals for the Second Circuit examined the functional nature of a penalty and determined that:
Taken in its broadest sense that word [penalty] has a pnnitiye, as opposed to a remedial, meaning; it covers fines and other exactions which are not restitution for a wrong, and are only justified as a deterrent, or in order to satisfy an atavistic craving for retaliation.
See also, Huntington v. Attrill, 146 U. S. 657; Atchison, Topeka & Santa Fe Ry. v. Nichols, 264 U. S. 848; [Restatement, Conflict of Laws, section 611. The payment made by the petitioner to United Drug, Inc., under section 16 (b) was not a restitution of a profit which properly belonged to the corporation, nor was the cause of action granted by the section a remedy predicated upon specific injury to a stockholder; rather, the cause of action was created to police insider activity, and the payment was imposed as a deterrent to action in violation of the statute. Because of the great difficulty of proving a conscious misuse of inside information by officers, directors, or substantial holders of securities in short-swing sales and purchases with a resulting profit, section 16 (b) imposes on these parties as a prophylactic measure absolute liability for the profit resulting from the short-swing transactions. The profit realized is forfeited to the corporation, not restored to a stockholder who may have been injured. The statutory accountabili ty to the corporation imposed by section 16 (b), however, does not supersede any common-law liability to the person from whom the securities were bought or to whom they were sold. Securities Exchange Act of 1934, section 28 (a), 48 Stat.,903 (1934), 15 U. S. C. section 78 (bb) (1946); A stockholder aggrieved by a fraudulent misrepresentation or failure to disclose inside information may still sue the insider to recover either the shares sold or his damages from the transaction, despite the fact that the corporation is entitled to a separate recovery under section 16 (b). Strong v. Repide, 213 U. S. 419; cf. Ballantine, Law of Corporations, 217 (rev. ed. 1946).
The liability imposed by section 16 (b) springs from an act in violation of statute and is arbitrarily exacted for the violation. Unlike the situation under the O. P. A. regulations in the Rossinan case supra, good faith, innocent transgression, or fair dealing neither excuse nor abate the statutory exaction,3 which does not compensate for a financial loss suffered by the corporation but instead seeks to regulate human behavior through the threat of financial retribution. And the payment does not lose its character as a penalty because it is recoverable in a civil action, United States v. La Franca, 282 U. S. 568, 572-4; United States v. Chouteau, 102 U. S. 603, 611; or because in the exercise of its discretion the legislature has provided that it is to be paid to an individual rather than to the sovereign. Liberty Warehouse Co. v. Burley Tobacco Growers’ Co-op. Marketing Assn., 276 U. S. 71, 97; St. Louis I. M. & S. R. Co. v. Williams, 251 U. S. 63.
The petitioner has referred us to the Eeport of the Securities and Exchange Commission on Proposal for Amendments to the Securities Act of 1933 and the Securities Exchange Act of 1934, dated August 7, 1941, page 36, in which, in opposing a proposal to repeal section 16 (b), the Commission said:
The consequences of failing to comply with this standard [section 16 (b)] are not penal. The section does not make insiders’ trading unlawful; it does not even subject insiders to injunctive proceedings.
However, we are no more swayed by the characterization made under the conditions of that report than we are by the use of the word “penalty” in reference to a section 16 (b) payment in Smolowe v. Delendo, supra. Although the sanction imposed by section 16 (b) may not be “penal” in the sense of “criminal,” it still falls within the functional definition of “penalty” contained in the Bossman case and other cases cited supra, with their emphasis on the preventive as opposed to the remedial consequences of such payments.
It is not within the province of the Tax Court to remove any part of the naturally resulting punitive force from penalties imposed for acts contrary to public policy. Congress considered transactions in violation of section 16 (b) to be detrimental to the public welfare and designated a money sanction equivalent to the profit realized from the proscribed short-swing transactions as a substantial deterrent to such activities. The activities of the petitioner fell within the proscription of the statute;4 and after the Securities and Exchange Commission, which is concerned with the practical enforcement of section 16 (b) and is in the best position to determine how important a particular sanction may be, refused to exempt the petitioner’s activities from its operation, he paid the penalty therefor. Allowance of the deduction in question would weaken an effective method of enforcing the sharply defined policy expressed in section 16 (b) by mitigating the deterrent effect of the sanction imposed and making the net effect of the transactions profitable through the gaining of a tax advantage.
Cases such as William Zeigler, Jr., 5 T. C. 150; Robert S. Farrell, 44 B. T. A. 238; and Charles R. Stuart, 38 B. T. A. 1147, which were cited by the petitioner, are readily distinguishable. The element common to all of those cases, but which is lacking in this proceeding, is that in each case the payment was made as restitution to make an injured party whole, rather than as the result of a sanction imposed to effectuate the design of a statute. Because of the different nature of the payments in those cases, the question of whether or not their deduction would frustrate public policy as defined by a statute of the sovereign was not involved. In Commissioner v. Longhorn Portland Cement Co., 148 F. 2d 276, reversing in part 3 T. C. 310, cer-tiorari denied 326 IT. S. 728, which held that a compromise payment in settlement of a violation of a state anti-trust law was not deductible, the Court said:
The sense of the rule that statutory penalties are not deductible from gross income is that the penalty is a punishment inflicted by the state upon those who commit acts violative of the fixed public policy of the sovereign, wherefore to permit the violator to gain a tax advantage through deducting the amount of the penalty as a business expense, and thus to mitigate the degree of his punishment, would frustrate the purpose and effectiveness of that public policy.
See also, Universal Atlas Cement Co., 9 T. C. 971, affd. per curiam, 171 F. 2d 294, certiorari denied 336 U. S. 962; Davenshire, Inc., 12 T. C. 958; Helvering v. Superior Wines & Liquors, Inc., 134 F. 2d 373.
The importance of effectively enforcing a regulation which was passed for the general welfare requires neither the lessening of the deterrent effect of the penalty imposed nor the granting of a tax advantage through the allowance of a deduction for the payment made. It is held that the respondent was correct in refusing to allow the deduction in question.
Keviewed by the Court.
Decision will be entered for the respondent.
DisNey and Ratxm, JJ., concur in the result.