OPINION
Issue 1. Distribution of Assets to Petitioner; Ordinary Income \or Capital Gain.
The primary question in this case is whether the distribution by Lammerts (Old) of certain property, not transferred to Lammerts (New), resulted in ordinary income to the estate (pursuant to either section 3018 or section 3569) or capital gain (pursuant to section 33110). Respondent denies that such property was distributed pursuant to a section 331 liquidation. Instead, respondent views the several transactions before us as being no more than a continuation of Lam-mert (Old); or, in the alternative, as constituting a corporate reorganization under section 368(a)(1)(F).11 Each, of these theories poses intriguing questions in an area of the law which is marked by uncertainty and conflict. Due to the importance which we attach to respondent’s alternate contention in which he raises the question of an (F) reorganization, we will first address ourselves to this argument.
A. Liquidation or (F) Reorganization
Though aged, section 368(a)(1)(F) has, until recently, received little administrative12 or judicial attention. Our task here is to determine whether the case at bar falls within the narrow grasp of section 368(a) (1) (F). We do not think that it does.
Section 368(a) (1) (F) defines a reorganization as “a mere change in identity, form, or place of organization, however effected.”
In Associated Machine, 48 T.C. 318 (1967), revd. 403 F. 2d 622 (C.A. 9, 1968), we stated as a principle, at page 326 that the “wording of subparagraph (F) is simple and clear. ‘Mere’ means ‘nothing more or other than.’ ”
In Hyman H. Berghash, 43 T.C. 743, 752 (1965), affd. 361 F. 2d 257 (C.A. 2, 1966), we made the following observation with regard to the scope of a reorganization under subparagraph (F) :
Although the exact function and scope of the (F) reorganization in the scheme of tax-deferred transactions described in section 368(a) (1) have never been clearly defined, it is apparent from the language of subparagraph (F) that it is distinguishable from the five preceding types of reorganizations as encompassing only the simplest and least significant of corporate changes. The (F)-type reorganization presumes that the surviving corporation is the same corporation as the predecessor in every respect, except for minor or technical differences. * * *
Hence, while a mere change of corporate domicile would seem to come well within the parameters of subparagraph (F), “a change which involves the retirement of some shareholders, the addition of others, a shift in the proportionate interests of those who continue, and increase in capital”13 would seem to be outside of the literal terms of this provision.
In Berghash, the Commissioner argued that the transaction on which the Court had to pass judgment constituted an (F) reorganizátion. There the taxpayer was a retail druggist who held 99 percent of the stock of a corporation (D-B) which owned and operated a drugstore. The taxpayer and a pharmacist named Lettman, who was then in his employ, entered into a contract to establish a new drugstore corporation (D) in a prospective shopping plaza. The shopping plaza never materialized and no capital was ever paid into D until the transaction which was at issue in the case. After several unsuccessful efforts to find a new location, Lettman insisted that taxpayer sell Lettman a 50-percent share in the D-B corporation or Lettman would be forced to strike off on his own. Taxpayer agreed to the sale of 50 percent of his ownership interest in the corporation. However, since Lettman could only raise $25,000 and since the D-B corporation’s assets were worth well over $100,000, taxpayer and Lettman arrived at the following plan: First, the shareholders of D-B corporation (taxpayer owning 99 percent of the outstanding shares and his wife owning 1 percent of the outstanding shares) adopted a section 331 plan of complete liquidation; second, D-B corporation transferred its operating assets to D corporation in exchange for 50 percent of D’s common stock (valued at $25,000) and a negotiable promissory note for the difference between $25,000 and the value of the assets transferred; third, Lettman purchased the outstanding shares of common stock for $25,000; and fourth, D-B distributed all of its assets, including the D stock, in a complete liquidation.
In holding that the transaction did not constitute an (F) reorganization, we relied upon the following principle stated at page 752:
The decisions involving subparagraph (F) or its counterpart in prior revenue acts consistently have imposed at least one major limitation on transactions that have been claimed to qualify thereunder: if a change in stock ownership or a, ship in proprietary interest occurs, the transaction will fail to guaUfy as an (F) reorganisation. Helvering v. Southwest Corp., 315 U.S. 194, affirming 119 F. 2d 561, affirming a Memorandum Opinion of this Court [Emphasis supplied.]
Finally, in distinguishing Berghash from the facts which were presented to us in Pridemark, Inc., 42 T.C. 510 (1964), affirmed in part and reversed in part 345 F. 2d 35 (C.A. 4, 1965), we made the following observation at page 754 relating to the fact that, in Berghash, the D corporation, once it obtained all of the operating assets of the D-B corporation, continued in exactly the same capacity as its predecessor:
Despite the fact that all of the operating assets were carried over to the successor corporation, which continued exactly the same business, in the same location, as had been conducted by the predecessor, the radical shift in stock ownership which occurred precludes us from holding that the transaction amounted to no more than “a mere change in identity, form, or place of organization” within the meaning of section 368(a) (1) (F). Cushman Motor Works v. Commissioner, * * * [130 F. 2d 977]; Joseph C. Gallagher, * * * [39 T.C. 144]. [Emphasis supplied.]
Though the facts presented in the instant case do not closely parallel those which we had before us in Berghash, we believe the principles developed in that case are determinative of the issue herein presented.
Prior to Henry’s death, Lammerts (Old) was owned exclusively by Henry and Parkinson; while subsequent to Henry’s death, and prior to the distribution of assets in liquidation of the “old” corporation, Henry’s estate and Parkinson held all the outstanding stock of Lam-merts (Old). By contrast, Plildred and Parkinson owned all the shares of stock in Lammerts (New) with Parkinson owning all the common stock, and Hildred owning all the preferred stock. Hence, there was a marked difference in the ownership of Lammerts (Old) vis-a-vis Lam-merts (New).14
Our finding is to be contrasted with the holding of the Second Circuit in Bard-Parker Co. v. Commissioner, 218 F. 2d 52 (C.A. 2, 1954), affirming 18 T.C. 1255 (1952), certiorari denied 349 U.S. 906 (1955), which is urged upon us by respondent. There it was held that liquidating trustees served merely as a “conduit” through which title to the assets of the transferring corporation passed to the acquiring corporation in a tax-free reorganization. The taxpayer in Bard-Parher contended that the transfer of the assets did not constitute a tax-free reorganization under then section 112(b) (4) 15 because: (a) In accordance with the applicable New York statute, once the old company was dissolved, title to its assets then vested in its former directors as liquidating trustees; (b) therefore, these individuals (as opposed to the old corporation) transferred the assets of the old corporation to the new corporation; and (c) the literal terms of the statute could, therefore, not be complied with since section 112(b) (4), related solely to a reorganization in which a corporation exchanged property for securities in another corporation. In holding that the transactions did constitute a reorganization, the Court of Appeals at pages 56-57 used the following language, part of which was quoted from Helvering v. Limestone Co., 315 U.S. 179 (1942) :
“the separate steps were integrated parts of a single scheme. Transitory phases of an arrangement frequently are disregarded under these sections of the revenue acts where they add nothing of substance to the completed affair. * * * Here they were mo more than intermediate procedural devices utilized to enable the corporation to acquire all the assets of the old one pursuant to a single reorganization plan.” 2 * * * [Footnote omitted.]
See also Davant v. Commissioner, 366 F. 2d 874, 884 (C.A. 5, 1966), affirming in part and reversing on other grounds 43 T.C. 540 (1965), in which the Fifth Circuit rejected an argument similar to the argument posited by the taxpayer in Bard-Parker.
Given the facts which we have before us, we cannot say that the separate steps which took place in this case were “integrated parts of a single scheme” in which Henry’s executors merely served as conduits for the distribution of the corporation’s operating assets, and should, therefore, be disregarded. In the first place, a period of approximately 3 years passed between the execution of the testamentary instrument by Henry and his demise. Secondly, the decision to liquidate and to distribute the assets of the corporation was made on the advice of counsel. Hence, the executors acted under the mandate of Henry’s will only after being instructed by counsel that no other recourse was available to them. Thirdly, the decision to reincorporate was made several months after Henry’s death.
With the above firmly in mind, it remains to be determined whether the shareholders of record prior to the transactions which are alleged to have constituted the (F) reorganization were predominantly the same as those persons who wound up with the proprietary interest in the corporation subsequent to such transactions. See, e.g., Helvering v. Southwest Corp., 315 U.S. 194 (1942), reversing 119 F. 2d 561 (C.A. 5, 1941), affirming a Memorandum Opinion of this Court; Joseph O. Gallagher, 39 T.C. 144 (1962); and Hyman H. Berghash, supra.
As stated earlier, we hold that the stock ownership in Lammerts, Inc. (Lammerts (New)), after the transactions referred to above, was not the same as the proprietary interest in Lammerts (Old) which existed just prior to the first of these transactions, i.e., the distribution of assets to Parkinson and the estate. This is reflected by the chart which follows. As such, an (F) reorganization could not have taken place under the case law cited above.
Ownership interest in shares (PMT) Lammerts Lammerts Common (Old) (New)
Estate (Henry)_ 634 0
Parkinson _ 66 461
Hildred_ 0 0
Preferred
Hildred_ 0 3,498
Parkinson_ 0 0
Moreover, the capital structure of the new corporation was substantially different from that of the old. This is not the type of transition contemplated by the (F) reorganization framework. Again quoting from our opinion in Berg hash, “The (F)-type reorganization presumes that the surviving corporation is the same corporation as the predecessor in every respect, expect for minor or technical differences.” 16
We hold that the transactions commencing with the distribution of Lammerts (Old) assets to its then shareholders did not collectively or independently constitute the type of occurrence contemplated by section 368(a) (1) (F).
In arriving at the above conclusion we are not unmindful of the Ninth Circuit’s holdings in Estate of Stauffer v. Commissioner, 403 F. 2d 611 (C.A. 9, 1968), reversing 48 T.C. 271 (1967), and in Associated Machine, supra; and the Fifth Circuit’s opinion in Beef Corporation v. Commissioner, 368 F. 2d 125 (C.A. 5, 1966), affirming in part and reversing in part a Memorandum Opinion of this Court. In each of these cases we held on doctrinal grounds that (F) reorganizations had not taken place and in each instance our determination was reversed on appeal with the result being an attenuation of what we thought to be the fairly narrow terms of the statute.
In Associated Machine we held that even though the fusion of brother-sister corporations may constitute a statutory reorganization for purposes of section 368(a) (1) (A), it did not constitute a “mere change in identity, form, or place of organization”17 for purposes of section 368(a) (1) (F). Eelying in part on the legislative history of the (F)-type reorganization and on our holding in Hyman H. Berg-hash, supra, we adopted the view that “the wording of subparagraph (F) * * * envisions a corporate rearrangement involving changes in the structure of only one corporation — a transaction where both prior to and after the reorganization there is only one corporation.”18
In the Stauffer case we were presented with an issue almost identical to the (F) reorganization question presented in the Associated Machine case and there, too, we held that no (F) reorganization had occurred. The basis for our determination in Stauffer is summed up, in part, by the following language which appears at page 300 of our opinion:
Certainly, it is necessary that there be continuity of both proprietary interest and enterprise in order to qualify as an (F) reorganization. But that is not enough, for there may be other changes that are too significant to be ignored in determining whether there was a “mere change in identity, form, or place of organization.” And in this ease substantial changes did occur when the separate businesses of three separate corporations were united in a new corporation.
Relying heavily on the language of Dewant v. Commissioner, supra, the Ninth Circuit reversed both cases on the general principle that where there is a shift in the operating assets from the transferor corporation to its alter ego (whether it be a viable corporation or a corporate shell) and where the identity of proprietary interest remains intact and the business enterprise of the transferor corporation continues unimpaired, an (F) reorganization has taken place.19
We do not believe that the above appellate court decisions detract from the conclusions we have reached in the instant proceeding. Without commenting on the overall approach used by the circuit court in these decisions, it need only be stated that in neither instance could there have been an (F) reorganization without an identity of shareholder interest. Therefore, although the above holdings of the Ninth Circuit are at loggerheads with this Court’s interpretation of sub-paragraph (F) ,20 we do not find these cases to be in conflict with the conclusions we have reached herein.21
Reef Corporation v. Commissioner, supra, involved a fact pattern different from the two cases discussed above. In Beef, the old corporation (RF) was composed of two groups of shareholders — the Butler group which owned 52 percent of the stock and the Favrot group which owned 48 percent of the stock. The Butler group was determined to buy out the Favrot group and the following plan was devised to accomplish this objective. A new corporation was formed (R) and the Butler group received all the common stock of R in exchange for a portion of their holdings in RF stock. Both groups sold the remaining RF stock to a third party (S) and each received notes of S in return. The Favrot group also received some cash. R then sold its holdings in RF stock to S for S’s notes. This placed all of the stock of RF in S. S then caused RF to sell all of its assets to R in a section 337 sale. RF received R notes in the transaction which were distributed to S in complete liquidation of RF. S then distributed the R notes pro rata to the holders of his personal notes (R, the Butler group and the Favrot group) in complete satisfaction of his personal notes. The net result of the above transactions was that the Butler group which formerly owned 52 percent of the continuing enterprise now owned a 100-percent interest. Under these facts we held that though a (D) reorganization had taken place, the changes which occurred in the proprietary interests were such that (F) reorganization treatment would not be proper.22
"At least where there is a complete identity of shareholders and their proprietary interests, as here, we hold that the type of transaction involved is a type (E) reorganization. * * »” (Emphasis theirs.)
The Fifth Circuit, on cross-appeal from the Commissioner, reversed our determination with regard to this issue on the ground that (a) continuity of shareholder interest was present through the Butler group and (b) the elimination of the Favrot group’s proprietary interest represented a section 302 redemption “functionally unrelated” to be (F) reorganization entered into by the Butler group.
To the extent that the circuit court in Beef predicated its holding on the premise that the discontinuance of the minority group’s proprietary interest in R resulted from a redemption “functionally unrelated” to the transactions comprising the reorganization which was there held to have taken place, we do not feel that the Reef case forbids the conclusion which we have reached in the case at bar. However, to the extent that the circuit court’s opinion in Reef can be read as being in conflict with the continuity-of-interest rules laid down in the Berghash23 and Southwest Corf, cases, we would have to respectfully disagree with the Fifth Circuit and follow Berghash, which was upheld by the Second Circuit in which an appeal from this case would lie.24
B. Section SSI Liguidation or Section 301 Dividend
Respondent’s other argument is that a complete liquidation within the intendment of section 331 did not take place and that Lammerts (New) is merely a continuation of Lammerts (Old). Under respondent’s theory the distribution of the Ramp Garage and accounts receivable not retained by Lammerts (New) would be taxable to the estate as a dividend by virtue of sections 301 and 316.25 We do not accept respondent’s theory.
In Joseph C. Gallagher, supra, we stated at page 157 that—
The concept of a continuation of the existing business through a section 331 liquidation,13 coupled with an intercorporate transfer, falls into the general area of corporate reorganizations, so that it is in the so-called reorganization sections, if anywhere, that we should expect it to be dealt with. ['Footnote omitted.]
This principle was reaffirmed in Hyman Berghash, supra.26 We now find it apposite to the issue at hand. We have already found that a reorganization under subparagraph (F) did not take place, and since no other form of reorganization is urged by respondent, we find the language quoted from Gallagher to be determinative of the issue at hand. Even so, because of the complexities which inhere in this area of the law, we deem it wise to consider the various arguments raised by respondent with regard to this issue.
Respondent relies, in part, on the following language from Davant v. Commissioner, supra, in support of his argument that the transactions described above did not constitute a complete liquidation under section 331:
Clearly, this liquidation cannot come within the intention of Congress in enacting the complete liquidation provisions. Those provisions contemplate that operating assets will no longer toe used by the stockholders to carry on the business as a corporation. It has long been recognized that taxpayers cannot liquidate a corporation with the intention of immediately reineorporating it in order to hold back liquid assets and cash for the purpose of getting capital gains treatment * ⅜ ⅜. Such a liquidation reincorporation transaction does not qualify for section 331 treatment. * * * [366 F. 2d 882, 883.]
We find the facts of Davani to be distinguishable from those presented herein; and we do not, therefore, find the above-quoted language to be binding in the instant case. For, in Davant there was a complete identity of shareholder interest. After the transactions there had been fully consummated, the four families who owned all the shares of stock in the transferor corporation wound up with all the shares of stock in the transferee corporation. As determined earlier in this opinion, the shareholders of Lammerts (New) were not the same as the shareholders in Lammerts (Old). Hence, we are not concerned with the kind of alleged abuse which concerned the Court of Appeals in Davant.
Respondent also relies upon' the following language used by the Court of Appeals in Pridemark, Inc. v. Commissioner, 345 F. 2d 35, 41 (C.A. 4, 1965):
The Code provides no definition of “complete liquidation” * * ⅜ [An] indication of what distributions are meant to be accorded favored treatment is found in'an early report of the Senate Finance Committee. S. Ren. No. 398. 68th Cong., 1st Sess. 12 (1924). There a distribution in complete liquidation was analogized to a sale of stock in that the shareholder “surrenders his interest in the corporation and receives money in place thereof.” The corporation must have ceased to be a going corporate concern, or if the enterprise is continued in corporate form, the shareholder must have disassociated himself from it. See Regs. 1.332-2(c) (1955). * * *
We agree with the respondent that the Code provides no definition of a “complete liquidation.” However, we cannot agree that the excerpt from the Senate Finance Committee report (which appears quoted above) sheds any light on either the liquidation-reincorporation area generally, or on the particular facts presented in the instant case.27
In this regard, we note the following language of the Court of Appeals in Berghash:
The only point upon which we see any need to expand upon the Tax Court’s decision is the Commissioner’s argument [rejected by the Tax Court] that, if the business of the liquidated corporation is continued by the new corporation, there is no “complete liquidation” within the meaning of Sections 331 and 337. This argument, apparently derived from an early report of the Senate Finance Committee, S. Rep. No.-398, 68th Cong., 1st Sess. 12 (1924) and from Treas. Regs. § 1-332-2(c) (1955) has been accepted in a dictum by the Fourth Circuit * * * [in] Pridemark, Inc. v. Commissioner, 345 F. 2d 35, 41 (4 Cir. 1965).
We are in complete agreement with the Tax Court’s resolution of this issue; its interpretation reflects the normal meaning of the words “complete liquidation” in Sections 331 and 337. * * * [361 F. 2d 260.]
ISTor, as respondent further argues, are we persuaded that section 1.331-1 (c) of the regulations constrains us to find that a complete liquidation did not, in fact, occur in the instant case. Section 1.331-1 (c) reads as follows: ⅝
(e) A liquidation winch is followed by a transfer to another corporation of all or part of the assets of the liquidating corporation or which is preceded by such a transfer may, however, have the effect of the distribution of a dividend or of a transaction in which no loss is recognized and gain is recognized only to the extent of “other property.” See sections 301 and 366. [Emphasis supplied.]
As we read section 1.331-1 (c), a liquidation followed by a transfer to another corporation of all or part of the assets of the liquidating corporation may be denied capital gains status under section 331. However, it is our belief that the above regulations do not compel such a finding where a denial of section 331 liquidation status is not warranted by the facts. We hold on the facts presented herein that a denial of section 331 liquidation status would be unwarranted in the case at bar.
The basis for the regulations quoted above seems to be found in the legislative history of the 1954 Code. The first legislative effort intended to deal explicitly with the reincorporation problem was passed by the House in 1954, but rejected by the Senate. The Senate-House conference committee, which also rejected it, commented as follows:
The House bill in section 357 contained a provision dealing with a device whereby it has been attempted to withdraw corporate earnings at capital gains rates by distributing all the assets of a corporation in complete liquidation and promptly reineorporating the business assets. This provision gave rise to certain technical problems and it has not been retained in the bill as recommended by the accompanying conference report. It is the belief of the managers on the part of the House that, at the present time, the possibility of tax avoidance in this area is not sufficiently serious to require a special statutory provision. It is believed that this possibility can appropriately be disposed of by judicial decision or by regulation within the framework of other provisions of the Mllf[28] [Emphasis supplied.]
Just what force should be given to the conferees’ report and the regulations seemingly promulgated thereunder is somewhat unclear. Pride-mark, Inc. v. Commissioner, supra. While the conference report cannot be regarded as law, it appears clear that the committee was aware of the liquidation-reincorporation problem and, nevertheless, concluded that the present statutory scheme, case law, and regulations which might be promulgated in the future were adequate to deal with it. We are in accord with this approach and at the same time we find that the regulations quoted above add little to the case law which we have already found to be not in conflict with the results we have reached.
Respondent next urges that liquidation of Lammerts (Old) did not take place for the following reasons: (a) No interruption of the automobile agency business occurred as a result of the foregoing transactions; (b) the employees of Lammerts (New) were the same persons who had been employed by Lammerts (Old); (c) the agency business telephone number was left unchanged; (d) bank account numbers and stationery were left unchanged; (e) Lammerts (Old) taxpayer identification number was left intact; (f) no notice was given to the public that the dual automobile agency was being operated under a new corporate structure; (g) only the office manager and bookkeeper were aware of the fact that a transition in ownership and management had occurred; and (h) an information return, as required by section 6043(1), was never filed with the district director’s office of the Internal Revenue Service.29
We do not feel that, under the particular facts of this case, any of the reasons set forth above singularly or collectively militate against our decision herein. Petitioners cannot be condemned for the expeditiousness with which the transactions described herein were accomplished. The mere fact that business, under the auspices of Lam-merts (New), was resumed without interruption at the termination of Lammerts (Old) does not prove that there was not, in fact, a termination of Lammerts (Old). Cf. Hyman H. Berghash, supra.
We recognize that Lammerts (Old) was derelict in failing to file a notice of liquidation per section 6043(1) and that Lammerts (New) was derelict in failing to obtain a new taxpayer identification number; however, we cannot see how either of these failures may be construed to prevent liquidation status under section 331.
Lastly, respondent has stated on brief that:
If respondent is incorrect and an estate that causes a corporation to go through a purely formal liquidation qualifies automatically under section 331, then “a new horizon of tax avoidance possibilities would be opened.” ⅞ * * For if respondent loses this case, a rush of new codicils may naturally be expected.
In response to this contention, we note that it was the direction of Henry’s will which caused the executors of Henry’s estate to liquidate Lammerts. It was not an act of their own volition which brought about the liquidation. Assuming arguendo that respondent is correct in his fear, we would not he justified in altering our conclusions merely because a taxpayer, in a given set of circumstances, experiences favorable income tax consequences. Quoting, in part, language cited by the Court of Appeals in Lewis v. Commissioner, 176 F. 2d 648, “Our determination of the substantive question must not be controlled by whether in the particular case it is to the advantage of the Government or of the taxpayer” to hold that a section 331 liquidation has been effected. “Father, the effort should be to seek out the true intendment of the law, [and] let the chips fall how they may in the particular litigation. Otherwise, to change the metaphor, interpretative chickens may come home to roost at a time when the barnyard wears quite a different aspect.” 176 F. 2d at 648.
Issue 8. Redemption of Preferred Stools
On December 15,1962, a special meeting of the stockholders of Lam-merts (Few) was held. Present at that meeting were Hildred, Parkinson, and Paul H. Eeid, Jr., the petitioners’ attorney. The following is an excerpt from the minutes of that meeting:
A general review of the business operations for the year 1962 was had and a discussion was had relative to the preferred stock of the Corporation. It was unanimously agreed that it would be in the best interest of the Corporation that such preferred stock be retired in part.
As a result, Lammerts (New) redeemed 180 shares of its 6-percent noncumulative, nonvoting preferred stock from Hildred for $18,000 (its book value) .30 During the year 1962, Lammerts (New) reported a taxable income of $25,714.12. No dividends were paid on the preferred shares by Lammerts (New) during the year 1962.
Kespondent contends that redemption of the 180 shares of preferred stock referred to above was essentially equivalent to a dividend under section 302 and subject to ordinary-income tax rates under section 301.31 we agree with respondent.
The problem of determining whether a redemption of stock should be treated as an exchange (pursuant to section 302) or a distribution (pursuant to section 301) is indeed a vexing one.32 The burden of proof on ⅛-⅛ issue rests mtih. petitioner. Petitioner concedes, in its reply brief, that the redemption of Hildred’s abares does not fit within either of the specific safe-harbor tests of section 302(b) (2) and (3)33 which, if met, would require capital gains treatment. Petitioner, however, contends that the distribution was not essentially equivalent to a dividend under section 302(b) (l).34 We hold that petitioner has failed to meet its burden of proof with regard to this question and that the redemption of Hildred’s shares was essentially equivalent to a dividend.
The regulations under section 302, in pertinent part, contain the following statements:
Sec. 1.302-2. Redemptions not taxable as dividends.
(a) The fact that a redemption fails to meet tbe requirements of paragraph (2), (3) or (4) of section 302(b) shall not be taken into account in determining whether the redemption is not essentially equivalent to a dividend under section 302(b) (1). See, however, paragraph (b) of this section. For example, if a shareholder owns only nonvoting stock of a corporation which is not section 306 stock and which is limited and preferred as to dividends and in liquidation, and one-half of such stock is redeemed, the distribution will ordinarily meet the requirements of paragraph (1) of section 302(b) but will not meet the requirements of paragraph (2), (3) or (4) of such section. * * *
(b) The question whether a distribution in redemption of stock of a shareholder is not essentially equivalent to a dividend under section 302 (b) (1) depends upon the facts and circumstances of each case. One of the facts to be considered in making this determination is the constructive stock ownership of such shareholder under section 318(a). * * *
Two distinct inferences may be drawn from the above language: The first being that a redemption of nonvoting, non-306 preferred stock from a person owning only preferred stock will ordinarily, but not necessarily, meet the requirements of section 302(b) (1);35 and, the second being that the analysis of any transaction alleged to fit within section 302(b)(1), including the example cited in section 1.302-2(a) of the regulations, must take into consideration the constructive-ownership rules of section 318.36 See, e.g., Levin v. Commissioner, 385 F. 2d 521 (C.A. 2, 1967), affirming 47 T.C. 258 (1966); and Thomas G. Lewis, 35 T.C. 71 (1960). Petitioner has not argued to the contrary.
It is our conclusion that the application of the attribution rules of section 318(a) (1) (A) (ii) 37 to the facts of this case precludes us from holding that the redemption of Hildred’s shares of preferred stock was not essentially equivalent to a dividend. As we stated in Perry 8. Lewis, 47 T.C. 129,134 (1966), “We think that the indispensable first step in determining dividend equivalency is whether the redemption of stock has caused a meaningful change in the position of the shareholder with relation to his corporation and the other shareholders.” (Quotation marks and brackets omitted.) In the instant case, the redemption of the 180 shares of Hildred’s preferred stock created no change in her relationship to either Lammerts (New) or her son, Parkinson. Both before and after the redemption she owned directly 100 percent of the outstanding shares of Lammerts (New) preferred and constructively 100 percent of Lammerts (New) common since her son, Parkinson, owned directly all the outstanding common stock. Moreover, Hildred’s relationship to the corporation was not significantly changed by virtue of the redemption. Neither before nor after the redemption did she take an active role in the management of the corporation. Hence, the facts of this case are distinguishable from Perry S. Lewis, supra, the only case relied upon by petitioners. In Lewis, the redemption of the shares of stock held by the taxpayer was in conjunction with an overall plan whereby the taxpayer relinquished his duties as president and completely terminated his active role as an officer and director of the corporation. Under these circumstances, we found that the taxpayer’s desire to withdraw from both the ownership and management of the business constituted a change in position sufficient to “dispel the aura of dividend equivalence.” 47 T.C. at 135. We find no such change of position in the case at bar.
In arriving at the above determination we do not deny that Hildred experienced some change in the ownership rights attached to her preferred shares, to wit, participation in current earnings and the right to corporate asset's on liquidation. However, on the facts of this case, we do not feel that these changes weigh heavily enough to alter our determination of dividend equivalency. Compare Himmel v. Commissioner, 338 F. 2d 815 (C.A. 2, 1964), reversing 41 T.C. 62 (1963), distinguishable on its facts, in which relative changes with respect to ownership attributes of preferred stock (i.e., rights to earnings and assets) were considered by the Court of Appeals in arriving at its determination of nondividend equivalency.
The redemption of Hildred’s shares came at the heels of a profitable year for Lammerts (New) during which its current earnings and profits exceeded the $18,000 paid to Hildred for her preferred shares. In light of the “aura of dividend equivalence” suggested by these factors we believe that, in order to find for petitioners, there would have to be present in this case “some raison d’etre for the redemption reasonably related to business exigencies and not founded upon the personal whims of the taxpayer or, * * * upon the machinations of other shareholders whose shares would be attributable to [her].” 47 T.C. at 134. Cf. Northup v. United States, 240 F. 2d 304 (C.A. 2, 1957), reversing a District Court case. In tRe instant case, no business purpose for the redemption is urged by petitioners.
Finally, in light of the fact that we have treated Hildred as constructive owner of 100 percent of the common stock of Lammerts (New), we believe the so-called net-effect test, under which dividend equivalency is determined by comparing the economic effect of a hypothetical dividend to that of the actual distribution in redemption of preferred shares, has no application to the facts of this case.38
Issue 3. Penalty for Late Filing
Petitioners (in this instance, the Estate of Henry Lammerts) contend that the late filing of the fiduciary income tax return for the estate was due to reasonable cause, within the meaning of section 6651(a) ,39 since the executors of the estate relied upon DeLyden, their long-time accountant, and Paul H. Reid, Jr., attorney to the estate, to file all necessary tax returns. Petitioners also contend that the failure of the executors to file on time should be excused since neither Parkinson nor Hildred had previously acted as executors of an estate and were unaware of the necessity of filing a fiduciary income tax return.
The regulations under section 6651(a) defined reasonable cause in accordance with the following standard: “If the taxpayer exercised ordinary business care and prudence and was nevertheless unable to file the return within the prescribed time, then the delay is due to a reasonable cause.” Sec. 301.6651-1 (a) (3), Proced. & Admin. Regs. For a similar definition, see George S. Van Schaick, Supt. of Insurance, 32 B.T.A. 736,744 (1935).
Petitioner has the burden of showing that failure to file the required return was due to reasonable cause. Wm. J. Lemp Brewing Co., 18 T.C. 586 (1952). Moreover, it is well established that ignorance of the necessity for filing a tax return will not of itself relieve a taxpayer of the 6651(a) penalty. Frank Souza, 33 T.C. 817 (1960); Logan Lumber Co. v. Commissioner, 365 F. 2d 846 (C.A. 5,1966), affirming a Memorandum Opinion of this Court; Haywood Lumber & Mining Co., 12 T.C. 735 (1949), reversed on other grounds 178 F. 2d 769 (C.A. 2, 1950). In the instant case, the estate cannot be relieved of its obligation to timely file a fiduciary income tax return simply because the executors of the estate had never before acted in such capacity and were unaware of the duties incumbent upon them, one of which was the filing of a fiduciary income tax return.
Parkinson, as the executor of the estate and as the person who apparently assumed responsibility for such estate matters as the preparation of tax returns, had a positive duty to ascertain the nature of his responsibilities as such. The fact that he, in good faith, believed that he had done all that was required of him when the estate tax return was filed is not an excusable circumstance. See, e.g., Fides, A.G., v. Commissioner, 137 F. 2d 731 (C.A. 4, 1943), affirming 47 B.T.A. 280 (1942), certiorari denied 320 U.S. 797 (1943). In failing to ascertain his obligations as executor, Parkinson’s conduct was in our estimation neither “ordinary” nor “prudent.” See sec. 301.6651-1 (a) (3), Proced. & Admin. Pegs., supra. Inasmuch as both Parkinson and Hildred were unfamiliar with the duties and responsibilities incumbent upon them as executors, at least one of them should have sought advice from either DeLyden or Reid as to what Federal tax returns were required of the estate. The record contains not even the slightest hint that either of the executors sought such advice.
For are we persuaded by petitioner’s contention that the executors of the estate reasonably relied upon Reid and DeLyden for preparation of the fiduciary income tax return required of the estate. DeLyden testified that most of Ms work for the Lammerts family and the Lammerts corporations had to do with repeat returns and that he did not think that his offices would be called upon to prepare the fiduciary income tax return. Moreover, the books and records of the estate were maintained in Reid’s office. Parkinson and DeLyden never even discussed estate matters. Under these circumstances, 'any belief on the part of Parkinson that DeLyden would handle the preparation of all tax returns affecting the estate cannot be regarded as reasonable.
Lastly, petitioners may not escape responsibility under 6651(a) by attempting to show reliance on Reid. It is true that under some circumstances it has been held that reliance by a taxpayer upon professional advice may constitute reasonable cause for failure to comply with the law. However, in such cases the matter involved must be “complicated and unusual, justifying such reliance.” R. A. Bryan, 32 T.C. 104, 133 (1959). In the case at bar, by contrast, the necessity of filing a fiduciary income tax return represented a duty basic to the administration of Henry’s estate. All Parkinson had to do to ascertain the nature of this duty was to ask Reid what he (Parkinson), as executor of his father’s estate, was obligated to do in order to fully satisfy Ms fiduciary obligation. He failed to do this.
Granted that Parkinson’s inadvertence was probably predicated upon his mistaken (though unwarranted) belief that DeLyden would prepare all tax returns required of the estate; however, no basis whatsoever existed which might have glossed this belief with a coating of reasonableness since DeLyden was not even supplied with the books and records of the estate until after it was discovered that the return had been overlooked.
Under these facts, petitioners’ reliance on the Haywood Lumber & Mining Co. case is misguided since in the Haywood case, unlike the instant proceeding, petitioners’ accountant was supplied with all the necessary information for the preparation of the return in question and was specifically requested to prepare it.
To reflect the concessions made by the parties and the conclusions reached herein,
Decisions will be entered u/nder Rule 50 in docket Nos. 6819-65, 738-66, and 733-66.
Decision will be entered for the respondent in docket No. 731¡,-66.
Eeviewed by the Court.
Eatjm, /., dissents.