Featherston, Judge:
Pursuant to section 6901,2 respondent has detérmined that petitioners are liable as transferees for a deficiency of $216,161.48 in the 1967 Federal income tax of the Cecil M. Webb Holding Co., which was liquidated in 1971. The amounts of the transferee liabilities so determined in respect of each of the petitioners are as follows:
Helen M. Webb. $216,161.48
Charles M. Webb. 202,158.89
William C. Webb. 205,763.57
The following issues have been presented for decision:
(1) Whether the proceeds of the sale of a parent corporation’s stock to a subsidiary corporation, which were received by one of the parent’s shareholders, are taxable to the parent as a dividend under section 304(a)(2), as supplemented by section 304(b)(2)(B).
(2) If issue 1 is answered affirmatively, whether the parent corporation’s failure to report such dividend as income was an omission of a sum in excess of 25 percent of the gross income reported in its 1967 income tax return within the meaning of section 6501(e), thé 6-year statute of limitations on assessments.
(3) If issue 1 is answered affirmatively, whether the parent corporation’s receipt of that dividend caused the parent corporation to become a personal holding company under section 542(a) and hence subject to the personal holding company tax imposed by section 541.
(4) If issues 1 and 3 are answered affirmatively, whether the parent corporation, in computing its personal holding company tax, is allowed a dividends-paid deduction under sections 561 and 562 for the amounts received by the shareholder selling a portion of its stock in the parent corporation.
(5) Whether respondent has carried his burden of showing that petitioners are liable as transferees for any deficiencies owed by the parent corporation for 1967, depending upon our decision of the issues above.
FINDINGS OF FACT
On May 21, 1974, respondent mailed a notice of liability to each of the petitioners, in which he determined that each was liable as a transferee of the assets of Cecil M. Webb Holding Co. (hereinafter Webb Co. or sometimes the parent corporation). The three petitioners, Helen M. Webb, Charles M. Webb, and William C. Webb, were legal residents of Tampa, Williston, and Chipley, Fla., respectively, at the time they filed their petitions with this Court.
Cecil M. Webb (Cecil) died on February 4, 1965, leaving his two sons, Charles M. Webb (Charles) and William C. Webb (William), and his widow, who subsequently remarried and is now Helen M. Frazier (Helen). Helen was Cecil’s second wife and the stepmother of Charles and William. There were no children born of the marriage of Cecil and Helen.
During his lifetime Cecil organized or acquired a group of corporations known as the Dixie Lily group. The corporations, located in Georgia and Florida, were engaged primarily in the manufacturing, packaging, and wholesale distribution of food products under the tradename "Dixie Lily.” The principal corporations of the Dixie Lily group were as follows:
Kinchafoonee Milling Co., Inc. (Kinchafoonee)
Tampa, Fla.
Dixie Lily Milling Co., Inc. (Dixie Lily)
Williston, Fla.
Dixie Lily Milling Co. of West Florida, Inc. (West Florida)
Chipley, Fla.
Phillips Milling Co., Inc. (Phillips)
Tifton, Ga.
In addition, Kinchafoonee and Dixie Lily controlled several subsidiary companies, including Dixie Lily Milling Co. of North Florida, Inc. (North Florida), which were engaged in the distribution of Dixie Lily products and related businesses.
Prior to the creation of Webb Co., Cecil was the majority shareholder of Kinchafoonee and Dixie Lily. Although he did not own controlling interests in the other Dixie Lily group companies, Cecil was the dominant executive officer of the corporate group. Helen was employed by Kinchafoonee and owned stock in that company as well as in Dixie Lily. Charles and William were officers and shareholders of the Dixie Lily group and were primarily involved in the activities of Phillips and West Florida, respectively.
On July 26, 1963, Cecil caused Webb Co. to be formed. Under the corporate articles, two classes of stock were authorized — class A voting stock with 500 authorized shares and class B nonvoting stock with 2 million authorized shares.
When Webb Co. was formed, the stock of the principal companies in the Dixie Lily group was held as follows:
Dixie West Stockholder Kinchafoonee Lily Florida Phillips
Cecil. 180 172 50.0 0
Helen. 100 88 0 0
Charles. 35 25 33.5 58
William.,. 35 25 51.5 52
Dixie Lily. 0 0 0 50
North Florida. 0 0 0 50
' 350 310 135.0 210
Cecil transferred all of his stock in the Dixie Lily group to Webb Co. in exchange for the 500 class A voting shares and 1,904,000 of the class B nonvoting shares. Charles and William exchanged a portion of their holdings in Phillips and West Florida for shares of class B Webb Co. stock. The following is a summary of the transfer of Dixie Lily group stock to Webb Co.:
Dixie Lily group Webb Co. shares Stockholder shares transferred received
Cecil.172 Dixie Lily 500 class A 180 Kinchafoonee and 50 West Florida 1,904,000 class B
Charles.6 Phillips 4,861 class B
William.18 West Florida 10,082 class B
Dixie Lily.50 Phillips 40,509 class B
North Florida.50 Phillips 40,509 class B
At all times relevant to this proceeding and after the transfer of the Dixie Lily group stock to Webb Co., the parent corporation owned the following percentages of the total combined voting power of the companies in the corporate group:
Percentage of Percentage of Company ownership Company ownership
Kinchafoonee. 51.43 West Florida. 50.37
Dixie Lily. 55.48 Phillips. 50.48
On August IB, 1963, Cecil, as grantor, executed a trust agreement, transferring into the trust his 500 class A voting shares of Webb Co. The beneficiaries of the trust included petitioners as well as the children of Charles and William. The trust was to terminate upon the death of the last surviving of the petitioners. Petitioners and two business associates of Cecil’s served as trustees.
After its formation Webb Co.’s essential business function was to consolidate and to vote its majority stockholdings in the Dixie Lily group corporations and, along with the trust, to serve as a management entity to control, unify, and coordinate the operations of the Dixie Lily group.
Shortly after Cecil’s death on February 4,1965, his will was admitted to probate and letters testamentary were issued to the First National Bank of Tampa, Fla., as executor of the estate. The stock ownership of Webb Co. did not change from the time of its formation until Cecil’s death. On the Federal estate tax return, Cecil’s estate included in the determination of the gross estate for Federal estate tax purposes 1,904,000 class B Webb Co. shares and the 500 class A Webb Co. shares held in trust. The value of the Webb Co. stock constituted more than 35 percent of Cecil’s gross estate and more than 50 percent of his taxable estate. Helen, Charles, and William were named as beneficiaries in Cecil’s will.
On December 7, 1967, Cecil’s estate sold 515,900 shares of Webb Co. class B non voting stock to Kinchafoonee, one of the principal companies in the Dixie Lily group. The estate received $288,904 in cash on the sale. This amount did not exceed the amount of Cecil’s funeral and administration expenses allowable as deductions to the estate under section 2053 and the sum of the estate, inheritance, legacy, and succession taxes imposed because of his death. Because of the application of sections 303 and 1014, no gain to the estate was recognized on the sale transaction. No other transaction involving Webb Co. stock occurred during the remainder of 1967, and except for the 515,900 shares sold to Kinchafoonee, the stock ownership of Webb Co. was unchanged after the sale.
On August 1, 1969, Webb Co., Helen, Charles, and William entered into an agreement with Nebraska Consolidated Mills Co. (hereinafter ConAgra), wherein all of their Dixie Lily group stock was to be exchanged for 122,154 shares of ConAgra. Pursuant to the reorganization plan, Webb Co. redeemed its stock held by Kinchafoonee, Dixie Lily, and North Florida for 22,154 shares of ConAgra stock and retired the shares received in redemption. Respondent had determined that the transaction qualified as a reorganization within the meaning of section 368 and that no gain on the exchange was to be recognized by Webb Co. or petitioners.
On July 2, 1971, Webb Co.’s board of directors voted to dissolve and liquidate the company completely. On August 3, 1971, after the liquidation, the respective shareholdings in Webb Co. were as follows:
Class A Shares
Webb Trust. 500
Class B Shares
Helen. 812,179.96
Charles. 292,821.02
William. 298.042.02
Total class B stock outstanding.. 1,403,043.00
Upon Webb Co.’s dissolution, its assets were distributed to the shareholders of Webb Co. in proportion to their respective stockholdings as follows:
Escrowed Shares of ConAgra Stockholder Cash ConAgra shares
Helen. $703.33 27,867 6,818
Charles. 248.26 10,047 2,098
William. 261.94 10,226 2,135
Webb Trust. 353.27 0 0
1,566.80 48,140 10,051
From the time of its formation until its dissolution in 1971, Webb Co. reported no taxable income. Although the companies in the Dixie Lily group were actively engaged in the milling and distribution business during this period, no dividends were formally declared to Webb Co.
Respondent determined that in the liquidation, Charles and William received assets totaling $202,158.89 and $205,763.57, respectively, and that the extent of their individual liabilities is limited to those amounts. Respondent also determined that in the liquidation, Helen received assets exceeding Webb Co.’s determined deficiency and that she is liable as transferee for the full amount of such deficiency.
OPINION
Restated concisely, the essential facts are that in 1967, the Webb estate owned most of the class B stock of Webb Co., which, in turn, owned 51.43 percent of Kinchafoonee’s stock. The Webb estate sold about one-fourth of its class B stock in Webb Co. to Kinchafoonee for $288,904. Since this $288,904 did not exceed the taxes and expenses related to Cecil’s death and administration of his estate, respondent agrees that section 3033 protects the estate from any tax as a result of this transaction. But respondent maintains that the amount of the selling price of the stock was a dividend from Kinchafoonee to Webb Co. and that the following avalanche of tax consequences must fall on the subsequently liquidated Webb Co.4 and, ultimately, on its former shareholders as transferees:
(1) An income tax (subject to the 85-percent intercorporate dividends-received deduction) on the $288,904 paid to the Webb estate by Kinchafoonee on the theory that the payment for the stock was a "constructive” dividend from Kinchafo-onee to Webb Co.
(2) A 70-percent personal holding company tax of $201,303.23 on the theory that the alleged "constructive” dividend caused Webb Co. to become a personal holding company during 1967 and, even though the Webb estate received the full amount of the dividend distribution, Webb Co. is not entitled to a dividends-paid deduction because the distribution was not made proportionately among Webb Co.’s shareholders within the meaning of sections 561 and 562.
(3) Webb Co.’s failure to report the $288,904 as gross income in 1967 was an "omission” of a sum in excess of 25 percent of the gross income reported on its return for that year within the meaning of section 6501(e). The result is that the bar of the section 6501(a) 3-year limitation period is lifted for an assessment against Webb Co.
(4) Since petitioners received a portion of the proceeds of the subsequent liquidation of Webb Co., they are liable as transferees for the Webb Co. income and personal holding company taxes so determined.
Respondent’s determination depends upon whether Webb Co. realized a taxable dividend when the Webb estate sold its Webb Co. stock to Kinchafoonee for cash. The answer to this central issue turns on the meaning of section 304(a)(2) and (b)(2)(B). We think it quite evident that both the language and legislative history of these subsections clearly establish that the proceeds of the Webb estate’s sale of the Webb Co. stock to Kinchafoonee were not a dividend to Webb Co., and we so hold.5
Section 304(a)(2) and (b)(2)(B) and its predecessor, 1939 Code section 115(g)(2), are the congressional response to Rodman Wanamaker Trust, 11 T.C. 365 (1948), affd. per curiam 178 F.2d 10 (3d Cir. 1949), where this Court held that a wholly owned subsidiary corporation’s purchase of its parent’s stock from shareholders of the parent did not result in a taxable dividend to the selling shareholders under 1939 Code section 115(g)(1) (the predecessor of current section 302). The problem to which 1939 Code section 115(g)(2), added to that Code in 1950, was addressed and the adopted solution were described as follows in H. Rept. No. 2319, to accompany H.R. 8920 (Pub. L. No. 814), 81st Cong., 2d Sess. (1950), 1950-2 C.B. 380, 420:
Section 115(g) of the Internal Revenue Code provides that where a corporation redeems its stock in such a manner as to make the redemption essentially equivalent to the distribution of a taxable dividend, the amount distributed in redemption of the stock shall be treated as a taxable dividend to the extent that it represents a distribution of earnings or profits. Such a provision was necessary to prevent stockholders from drawing off accumulated corporate profits through the device of selling part of their stock to the corporation.
The recent case of Commissioner v. Wanamaker (178 Fed. (2d) 10), however, has revealed a loophole through which this result can be accomplished without coming within the words of section 115(g). Section 115(g) was held in that case to be applicable only where a corporation cancels or redeems its own stock. It was held not to be applicable when a subsidiary corporation purchased the stock of its parent corporation from the shareholders of the parent, even though the effect was, in fact, identical with that which would have resulted if the parent had itself purchased the stock.
If the stockholders of a corporation which owns all the stock of a subsidiary corporation obtain cash from that subsidiary, in effect they have received a dividend to the same extent as would be the case if the cash had been paid by the subsidiary to the parent corporation and had then been distributed by the parent to the stockholders. And where such stockholders "sell” part of their stock in the parent corporation to the subsidiary they nevertheless retain ownership and control of both corporations, since the "sold” stock is one of the assets which the parent corporation owns by virtue of its possession of all the stock of the subsidiary. Therefore, section 207 of your committee’s bill amends section 115(g) of the Internal Revenue Code, so as to cover indirect redemption of shares in a parent corporation through purchases by its subsidiaries. * * *[6]
The language used in 1939 Code section 115(g)(2)7 to close the loophole revealed in Wanamaker provided for treatment of the amount paid for the acquisition of the stock as a "taxable dividend from the issuing corporation” (emphasis added), i.e., from the parent corporation to its selling shareholder. Nothing in this language suggests that such amount was also to be treated as a dividend to the parent ("issuing”) corporation. The "extent” of the dividend from the "issuing” corporation was the amount which would have been "essentially equivalent to a taxable dividend” if such amount had been distributed by the subsidiary ("acquiring”) corporation to the parent and "had been applied by the issuing corporation in redemption of its stock.” The language prescribing this procedure for measuring the extent of the dividend provided no basis for taxing the parent corporation with a dividend.
The substance of 1939 Code section 115(g)(2) was incorporated into the 1954 Code as section 304(a)(2),8 which was supplemented by section 304(b)(2)(B).9 See H. Rept. No. 1337, to accompany H.R. 8300 (Pub. L. No. 591), 83d Cong., 2d Sess. A79 (1954); S. Rept. No. 1622, to accompany H.R. 8300 (Pub. L. No. 591), 83d Cong., 2d Sess. 239 (1954). Again, the 1954 Code language does not purport to recharacterize the transaction as one in which the parent ("issuing”) corporation receives a dividend. Rather, section 304(a)(2) provides that the "property” received in return for the stock "shall be treated as a distribution in redemption of the stock of the issuing corporation.” This language obviously refers to a distribution by the parent corporation to the shareholder, not a distribution to the parent corporation. Such treatment of the property received by the parent corporation’s shareholder in exchange for his stock provides no basis for taxing the parent corporation with a dividend from its subsidiary.
Thus, the technique adopted by Congress in closing the loophole is to treat the "property” received by the shareholder as a "distribution in redemption” of the parent corporation’s stock. The distribution is then to be tested against the redemption provisions of sections 302 and 303 for the purpose of determining whether the transaction was, in substance, a redemption resulting in capital gain or a redemption to be treated as a distribution to the selling shareholder resulting in dividend equivalency.
Evidencing this intent, the first words of the text of section 304(a)(2) are: "For purposes of sections 302 and 303.” To qualify for taxation as capital gain, the sale proceeds, treated as a distribution in redemption of the stock, must meet one of the so-called "safe harbor” requirements of section 302(b) or constitute a redemption to pay death taxes qualifying under section 303. Only where the sale proceeds, so treated, meet one of those requirements is the amount of the selling price of the stock afforded capital gain treatment. Otherwise, that amount is treated as a distribution from the parent corporation to the selling shareholder, to which section 301 applies.10 Where the capital gain requirements of section 302 or 303 are not met, section 304(b)(2)(B) comes into play to provide a means for determining the amount of the deemed section 301 distribution which constitutes a dividend. Section 304(b)(2)(B) states that the determination of "the amount which is a dividend” shall be made "as if’ the property were distributed by the acquiring corporation to the parent ("issuing”) corporation and immediately thereafter distributed by the parent corporation, thus providing the earnings and profits needed for dividend treatment.
Respondent focuses on the section 304(b)(2)(B) clause "as if the property were distributed by the acquiring corporation to the issuing corporation” and a statement in S. Rept. No. 1622, supra at 239, that "the proceeds of such sale shall be considered to be first a distribution by the subsidiary to the parent and then immediately thereafter a distribution by the parent corporation in redemption of its own stock.” He argues that this language "requires the taxing of a dividend to the parent corporation and the parent corporation is subject to tax on this dividend income regardless of whether there is a dividend taxable at the shareholder level.”
But respondent’s argument takes the quoted words out of context and ignores both the legislative history and the substantive thought conveyed by section 304(a)(2) and (b)(2)(B). The function of section 304(a)(2) and (b)(2)(B) is to insure that the redemption-distribution provisions of sections 301 through 303 are not circumvented by a sale of a parent’s stock to a controlled subsidiary, nothing more. See H. Rept. No. 2319, supra, 1950-2 C.B. at 420. Under section 304(b)(2)(B), headed "Amount constituting dividend,”11 the amount of the dividend to the selling shareholder is to be determined "as if’ the subsidiary corporation had first distributed the stock’s selling price to the parent corporation and the parent immediately distributed it to the shareholder. This provision is simply a mechanism by which earnings and profits of the parent corporation are adjusted for the purpose of "the determination of the amount which is a dividend” (emphasis added). It has nothing to do with the amount of the income of the parent corporation.
Section 1.304-3(a), Income Tax Regs., explaining section 304(a)(2) and (b)(2)(B), confirms that the "as if’ language was intended to deal with the earnings and profits of the parent corporation where the "distribution” does not meet the capital gain requirements of section 302 or 303, as follows:
If a subsidiary acquires stock of its parent corporation from a shareholder of the parent corporation, the acquisition of such stock shall be treated as though the parent corporation had redeemed its own stock. * * * The determination whether the amount received shall be treated as an amount received in payment in exchange for the stock shall be made by applying section 303, or by applying section 302(b) with reference to the stock of the issuing parent corporation. If such distribution would have been treated as a distribution of property (pursuant to section 302(d)) under section 301, the entire amount of the selling price of the stock shall be treated as a dividend to the seller to the extent of the earnings and profits of the parent corporation determined as if the distribution had been made to it of the property that the subsidiary exchanged for the stock. * * * [Emphasis added.]
Respondent next urges that: "The statutory scheme of Code sections 301 through 304 supports the conclusion that the cash used to effectuate any redemption of a parent’s stock by a subsidiary is constructively paid to the parent.” Without this result, the argument goes, "there can be no 'redemption’ of stock by a parent corporation where an entity other than the corporation which issued the stock purchases the stock.”
But the Webb Co. stock purchased by Kinchafoonee was not actually redeemed as a result of the purchase. It became an asset of Kinchafoonee’s and, as such, was subject to resale by Kinchafoonee and levy by Kinchafoonee’s creditors. Like its other assets, the Webb Co. stock was held by Kinchafoonee, subject to the trust obligations of its directors to protect, preserve, and manage it for the benefit of all the shareholders, including the owners of Kinchafoonee stock (48.57 percent thereof) other than Webb Co.
As a result of Kinchafoonee’s stock purchase, Webb Co.’s balance sheet was unchanged. Webb Co. retained the same assets, liabilities, and outstanding stock. Kinchafoonee’s balance sheet was changed in only one respect: That company’s cash was reduced by $288,904 and the Webb Co. stock was added to its other assets. Had Kinchafoonee immediately sold the Webb Co. stock for $288,904 in a separate transaction, Kinchafoonee’s balance sheet would have been the same as before it acquired that stock. Indeed, the Internal Revenue Service has recognized that had Kinchafoonee sold the Webb Co. stock to outside interests in a separate transaction, such a transaction would have resulted in gain or loss to the subsidiary corporation (Kinchafoonee) measured by the excess or deficit of the selling price over the cost in acquiring the stock. Rev. Rui. 70-305, 1970-1 C.B. 169,12 modified in other respects by Rev. Rui. 74-503, 1974-2 C.B. 117.
Section 304(a)(2) and (b)(2)(B) does not purport to convert the sale of a parent corporation’s stock to a subsidiary corporation into an actual redemption of that stock. That section merely creates a series of fictions which are to be applied in order to close the loophole revealed by the Wanamaker opinion. Under that section the payment of the selling price is "t. eated” as a "distribution in redemption” of the parent corporation’s stock. The stock is not actually redeemed but becomes an asset of the subsidiary corporation. The amount of the selling price of the stock is actually paid by the subsidiary corporation to the selling shareholders but is treated "as if’ it were distributed to them by the parent corporation. And "the determination of the amount [if any, of such distribution] which is a dividend” to the selling shareholders is made "as if’ the subsidiary corporation had distributed the amount of the selling price to its parent and the parent immediately thereafter distributed those proceeds to its selling shareholders, even though neither the subsidiary corporation nor the parent makes an actual distribution.13 These fictions do not change the reality that the parent’s stock is not actually redeemed.
Respondent casts his argument in the equity-oriented terms of a "constructive dividend,” but Webb Co. received nothing which, in ordinary tax parlance, can be so characterized. No obligation undertaken by Webb Co. was discharged by Kinchafoonee, cf. Shalk Chemical Co. v. Commissioner, 304 F.2d 48, 50 (9th Cir. 1962), affg. 32 T.C. 879 (1959); Edgar S. Idol, 38 T.C. 444, 457-458 (1962), affd. 319 F.2d 647 (8th Cir. 1963), and no transfer of assets was made by Kinchafoonee for the benefit of Webb Co. or anyone else for an amount less than full consideration, cf. Harry L. Epstein, 53 T.C. 459, 474-475 (1969); Challenge Manufacturing Co., 37 T.C. 650, 662-663 (1962). If Webb Co. realized any benefit whatever as a result of Kinchafoonee’s purchase of the Webb Co. stock, that benefit was derivative in nature and was not a constructive dividend to Webb Co. Cf. Sammons v. Commissioner, 472 F.2d 449, 453 (5th Cir. 1972); R. T. French Co., 60 T.C. 836, 855 (1973); PPG Industries, Inc., 55 T.C. 928, 1002-1003 (1970); Columbian Rope Co., 42 T.C. 800, 812-813 (1964); Benjamin H. Freeman, 41 T.C. 379, 385-386 (1963); Milton F. Priester, 38 T.C. 316, 327 (1962).
Indeed, adoption of respondent’s position would frustrate the purposes of section 304 and related provisions. Where the capital gain requirements of sections 302 and 303 are not met and the parent has no other earnings and profits, respondent’s position would permit the shareholders to receive most of the proceeds of the sale of their stock without incurring dividend taxation. Of the $288,904 received by the Webb estate, for example, imputed earnings and profits of some $220,000 would be consumed by Webb Co.’s taxes (income plus personal holding company taxes), leaving earnings and profits of only about $68,904 in Webb Co.’s hands. Thus, if neither section 302 nor 303 were applicable, the redeeming shareholders would receive the full $288,904 but would be taxed on dividend income of only approximately $68,904.14 And the economic impact of the parent corporation’s taxes on that dividend income would fall not on the shares treated as redeemed but on the remaining shares even though they had generated no economic benefit to their holders.15 Such treatment is not consistent with the statutory scheme.
The case of Union Bankers Insurance Co., 64 T.C. 807 (1975), which respondent cites, involved a substantially different factual situation and a different set of related statutes. In that case all the parties, the parent and subsidiary corporations as well as the redeeming shareholder, were corporations, and there was no determination of personal holding company tax liability. Nor was section 303 involved. The issue there presented required the meshing of section 304 with another set of directions in section 815 on how distributions to shareholders are to be charged in computing the phase III tax of life insurance companies. That case must be read in the context of the language and purposes of section 815. However, we shall no longer follow the reasoning of either Union Bankers or Broadview Lumber Co. v. United States, an unreported case (N.D. Ind. 1975, 36 AFTR 2d 75-6367, 75-2 USTC par. 9832), insofar as they hold that, in a situation described in section 304(a)(2) and (b)(2)(B), the "issuing” or parent corporation realizes a taxable dividend.
Since Webb Co. did not realize dividend income as a result of Kinchafoonee’s stock purchase from the Webb estate, respondent has failed to show that Webb Co. omitted from its income tax return for 1967 a sum in excess of 25 percent of the reported gross income within the meaning of section 6501(e). The 3-year statute of limitations on assessments prescribed by section 6501(a) bars the determined income tax deficiency. Since Webb Co. received no dividend income from Kinchafoonee, Webb Co. was not a personal holding company in 1967. Accordingly, petitioners are not liable as transferees of Webb Co.
To reflect the disposition of certain issues which have been settled,
Decisions will be entered under Rule 155.
Reviewed by the Court.