OPINION.
Mubdock :
The Commissioner determined a deficiency of $21,019.38 in the petitioner’s income tax for the calendar year 1929. In determining the deficiency the Commissioner added to the total income reported $7,520.90, representing dividends which he held were received through revocable trusts. The petitioner assigned this action [967]*967as error, and in his brief the Commissioner concedes that the income from these trusts was not taxable to the petitioner. The Commissioner also added to total income as reported “ Gain on sale $99,250”, which he explained as follows:
Gain on the sale of contracts of James M. Harrison, Inc., to the Ross Industries Corporation has been determined as follows:
Received 1,000 shares of preferred stock of Ross Industries Corporation, market value-$100, 000. 00
Less:
Cost of 150 shares of James M. Harrison, Inc_ 750. 00
$99, 250. 00
It is held that proceeds from the sale represent income taxable to you on the liquidation of the corporation James M. Harrison, Inc.
The petitioner assigns this action of the Commissioner as error and contends that under section 112 of the Revenue Act of 1928 the gain from this transaction was not recognized, and, furthermore, that only one fourth of the 1,000 shares was received by and belonged to him.
The facts have been presented by a stipulation which is set forth in full in the companion case to this one, J. M. Harrison, Inc., 30 B.T.A. 455. J. M. Harrison, Inc., (hereinafter referred to as the Harrison Co.) was an Ohio corporation, organized on July 11, 1927. for the purpose of .developing a market for drying equipment and processes employed in baking enamel used extensively in the automobile industry and for other drying operations under patents owned by the petitioner. Prior to March 1929 this company had entered into several contracts for the manufacture and sale of this equipment. In the case of J. M. Harrison, Inc., supra, we held that these contracts were valuable assets on March 21, 1929, and constituted property as that term is used in the statute. On March 21, 1929, the Harrison Co. transferred these assets to the Ross Industries Corporation of New York (hereinafter referred to as the Ross Co.) in exchange for $100,000 par value of the preferred stock of the latter company. In the case of J. M. Harrison, Inc., supra, we held that this transaction constituted a reorganization to which the two corporations were parties, the property was exchanged solely for stock pursuant to a plan of reorganization, and no gain or loss to the Harrison Co. was recognized under section 112 of the Revenue Act of 1928. The Harrison Co. had agreed, as a part of the plan of reorganization, to distribute to its stockholders the shares of preferred stock which it received in exchange for its assets, to wind up its affairs, and to dissolve. On March 20, 1929, there were 150 shares of the Harrison Co. stock outstanding. Gertrude A. Harrison, the wife of the petitioner, owned 20 of these shares, and the petitioner owned the remaining 130 shares. On that day he made [968]*968actual and bona fide gifts of 17 *4 shares to his wife and 87y2 shares to each of their two children. Two hundred and fifty shares of preferred stock of the Ross Co., received by the Harrison Co. on March 21,1929, were distributed in accordance with the plan of reorganization to each of the four stockholders of the Harrison Co. without the surrender by those stockholders of their Harrison Co. stock. Thus the petitioner and his wife each received 250 shares and their two children each received 250 shares. Thereafter, the Harrison Co. had assets of $2,209.24 which it had reserved for taxes and contingencies pending its dissolution. The taxes and contingencies against which these assets were reserved included:
Auditors’ fees- $225.00
Attorneys’ fees- 1,750.00
Income tax- 477. 70
Total_ 2, 452. 70
These amounts were paid by the corporation subsequent to March 21, 1929, and on August 24, 1929, the Harrison Co. dissolved. The petitioner filed a joint return for himself and wife for the calendar year 1929 in which he did not report any income from the receipt by him and his wife of 500 shares of the preferred stock of the Ross Co.
The ownership of the shares at the time of the distribution has been settled by agreement of the parties. The only question left for decision is whether the gain realized by the petitioner and his wife from the distribution of the Ross Co. stock is recognized under the Revenue Act of 1928 and, therefore, is taxable to them on their joint return, or whether their gain is not recognized. The Commissioner’s whole argument on this point is that the transaction between the two corporations was a sale, not a reorganization within the meaning of section 112 (i) (1) (A), and, therefore, none of the nonrecognition provisions of section 112 would relieve the gain to the shareholders from tax. His argument falls under our decision in J. M. Harrison, Inc., supra, that the transaction was a reorganization within the meaning of section 112 (i) (1) (A). He has not argued that the petitioner would be taxable if there was a reorganization within the meaning of the statute. The petitioner contends that his gain and that of his wife is not recognized because of the provisions of sections 112 (g) and 112 (b) (3) of the Revenue Act of 1928. He does not care which provision is applied so long as the gain is not recognized. The stipulated facts in this case and the conclusion reached by the Board in the companion case of J. M. Harrison, Inc., supra, bring the distributions to this petitioner and his wife squarely within the letter of the provisions [969]*969of section 112 (g) of the Kevenue Act of 1928. Those provisions are as follows:
(g) Distribution of stock on reorganization. — If there is distributed, in pursuance of a plan of reorganization, to a shareholder in a corporation a party to the reorganization, stock or securities in such corporation or in another corporation a party to the reorganization, without the surrender by such shareholder of stock or securities in such a corporation, no gain to the distributee from the receipt of such stock or securities shall be recognized.
There was distributed, in pursuance of a plan of reorganization, to the petitioner and his wife, shareholders in a corporation a party to the reorganization, stock in another corporation a party to the reorganization, without the surrender by these shareholders of their certificates of stock in the first corporation. The provision, on its face at least, seems to provide that under such circumstances no gain to these shareholders shall be recognized from the receipt of the Ross Co. stock. Cf. Rudolph Boehringer, 29 B.T.A. 8.
It is suggested, however, that this transaction does not come within the spirit and intent of section 112 (g) and the gain is taxable just as any other gain from the liquidation of a corporation. The alleged justification for this view is that the failure to surrender the Harrison Co.
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OPINION.
Mubdock :
The Commissioner determined a deficiency of $21,019.38 in the petitioner’s income tax for the calendar year 1929. In determining the deficiency the Commissioner added to the total income reported $7,520.90, representing dividends which he held were received through revocable trusts. The petitioner assigned this action [967]*967as error, and in his brief the Commissioner concedes that the income from these trusts was not taxable to the petitioner. The Commissioner also added to total income as reported “ Gain on sale $99,250”, which he explained as follows:
Gain on the sale of contracts of James M. Harrison, Inc., to the Ross Industries Corporation has been determined as follows:
Received 1,000 shares of preferred stock of Ross Industries Corporation, market value-$100, 000. 00
Less:
Cost of 150 shares of James M. Harrison, Inc_ 750. 00
$99, 250. 00
It is held that proceeds from the sale represent income taxable to you on the liquidation of the corporation James M. Harrison, Inc.
The petitioner assigns this action of the Commissioner as error and contends that under section 112 of the Revenue Act of 1928 the gain from this transaction was not recognized, and, furthermore, that only one fourth of the 1,000 shares was received by and belonged to him.
The facts have been presented by a stipulation which is set forth in full in the companion case to this one, J. M. Harrison, Inc., 30 B.T.A. 455. J. M. Harrison, Inc., (hereinafter referred to as the Harrison Co.) was an Ohio corporation, organized on July 11, 1927. for the purpose of .developing a market for drying equipment and processes employed in baking enamel used extensively in the automobile industry and for other drying operations under patents owned by the petitioner. Prior to March 1929 this company had entered into several contracts for the manufacture and sale of this equipment. In the case of J. M. Harrison, Inc., supra, we held that these contracts were valuable assets on March 21, 1929, and constituted property as that term is used in the statute. On March 21, 1929, the Harrison Co. transferred these assets to the Ross Industries Corporation of New York (hereinafter referred to as the Ross Co.) in exchange for $100,000 par value of the preferred stock of the latter company. In the case of J. M. Harrison, Inc., supra, we held that this transaction constituted a reorganization to which the two corporations were parties, the property was exchanged solely for stock pursuant to a plan of reorganization, and no gain or loss to the Harrison Co. was recognized under section 112 of the Revenue Act of 1928. The Harrison Co. had agreed, as a part of the plan of reorganization, to distribute to its stockholders the shares of preferred stock which it received in exchange for its assets, to wind up its affairs, and to dissolve. On March 20, 1929, there were 150 shares of the Harrison Co. stock outstanding. Gertrude A. Harrison, the wife of the petitioner, owned 20 of these shares, and the petitioner owned the remaining 130 shares. On that day he made [968]*968actual and bona fide gifts of 17 *4 shares to his wife and 87y2 shares to each of their two children. Two hundred and fifty shares of preferred stock of the Ross Co., received by the Harrison Co. on March 21,1929, were distributed in accordance with the plan of reorganization to each of the four stockholders of the Harrison Co. without the surrender by those stockholders of their Harrison Co. stock. Thus the petitioner and his wife each received 250 shares and their two children each received 250 shares. Thereafter, the Harrison Co. had assets of $2,209.24 which it had reserved for taxes and contingencies pending its dissolution. The taxes and contingencies against which these assets were reserved included:
Auditors’ fees- $225.00
Attorneys’ fees- 1,750.00
Income tax- 477. 70
Total_ 2, 452. 70
These amounts were paid by the corporation subsequent to March 21, 1929, and on August 24, 1929, the Harrison Co. dissolved. The petitioner filed a joint return for himself and wife for the calendar year 1929 in which he did not report any income from the receipt by him and his wife of 500 shares of the preferred stock of the Ross Co.
The ownership of the shares at the time of the distribution has been settled by agreement of the parties. The only question left for decision is whether the gain realized by the petitioner and his wife from the distribution of the Ross Co. stock is recognized under the Revenue Act of 1928 and, therefore, is taxable to them on their joint return, or whether their gain is not recognized. The Commissioner’s whole argument on this point is that the transaction between the two corporations was a sale, not a reorganization within the meaning of section 112 (i) (1) (A), and, therefore, none of the nonrecognition provisions of section 112 would relieve the gain to the shareholders from tax. His argument falls under our decision in J. M. Harrison, Inc., supra, that the transaction was a reorganization within the meaning of section 112 (i) (1) (A). He has not argued that the petitioner would be taxable if there was a reorganization within the meaning of the statute. The petitioner contends that his gain and that of his wife is not recognized because of the provisions of sections 112 (g) and 112 (b) (3) of the Revenue Act of 1928. He does not care which provision is applied so long as the gain is not recognized. The stipulated facts in this case and the conclusion reached by the Board in the companion case of J. M. Harrison, Inc., supra, bring the distributions to this petitioner and his wife squarely within the letter of the provisions [969]*969of section 112 (g) of the Kevenue Act of 1928. Those provisions are as follows:
(g) Distribution of stock on reorganization. — If there is distributed, in pursuance of a plan of reorganization, to a shareholder in a corporation a party to the reorganization, stock or securities in such corporation or in another corporation a party to the reorganization, without the surrender by such shareholder of stock or securities in such a corporation, no gain to the distributee from the receipt of such stock or securities shall be recognized.
There was distributed, in pursuance of a plan of reorganization, to the petitioner and his wife, shareholders in a corporation a party to the reorganization, stock in another corporation a party to the reorganization, without the surrender by these shareholders of their certificates of stock in the first corporation. The provision, on its face at least, seems to provide that under such circumstances no gain to these shareholders shall be recognized from the receipt of the Ross Co. stock. Cf. Rudolph Boehringer, 29 B.T.A. 8.
It is suggested, however, that this transaction does not come within the spirit and intent of section 112 (g) and the gain is taxable just as any other gain from the liquidation of a corporation. The alleged justification for this view is that the failure to surrender the Harrison Co. stock was a mere empty gesture, lacking in substance, and done merely for the purpose of avoiding tax by bringing within the letter of section 112 (g) a gain from a distribution which Congress did not intend should go unrecognized. The plan of reorganization involved the prompt dissolution of the Harrison C'o. and the argument is made that this dissolution could have taken place simultaneously with the distribution of the Ross Co. stock and that the continuance of the Harrison Co. for a short time and the retention by its stockholders of their interest in this corporation for that short time were circumstances which lack substance and should be disregarded in the decision of this case. We are unable to say, however, that these circumstances were wholly lacking in substance. They were not done to avoid tax, but had some other purpose.
The statutory provision contained in section 112 (g) of the Revenue Act of 1928 was originally enacted as section 203 (c) of the Revenue Act of 1924. The explanation of its purpose given in the Committee Reports might indicate that it was never intended to cover a reorganization involving the dissolution of the original company. See House Report 179, 68th Cong., 1st sess., p. 14; Senate Report Ho. 398, 68th Cong., 1st sess., p. 15. If the word “ stock ” in this section were interpreted as meaning a shareholder’s actual interest in a corporation, instead of the mere paper evidence of that interest, the provision might be held inapplicable where no real [970]*970interest is retained in the original corporation. However, the words used in the statute are the primary source from which the intention of the legislators should be determined, and unless the meaning of those words is doubtful or ambiguous, resort may not be had to other sources to determine intent. The words used in section 112 (g) are reasonably clear and seem to cover the present case. Cf. Burnet v. Brooks, 288 U.S. 378, 391. But in any event, the question does not have to be decided in this case and may never require a decision in any case. The point was neither raised by the Commissioner nor briefed by the parties. No matter which way it would be decided, the final decision in this case would be the same. The reason for this is that the application of section 112 (g) could only be avoided by holding that in substance the Harrison stockholders exchanged their interest in that company solely for an interest in the Ross Co., and that holding would bring the transaction within the scope and intent of section 112 (b) (3), which provides that no gain or loss shall be recognized where stock of one corporation a party to a reorganization is exchanged solely for stock of another corporation a party to a reorganization. Winston Bros. Co., 29 B.T.A. 905. This seems to demonstrate at least that this transaction comes within the spirit and intent of the nonrecognition provisions of section 112. In form it comes within section 112 (g) and the argument which would take it out of that section would necessarily place it within section 112 (b)(3). Therefore we decide this point for the petitioner.
Reviewed by the Board.
Decision will be entered under Rule 50.