The opinion
Seawell,
dissenting: I disagree with the conclusion reached on the second issue.
When petitioner’s board of directors resolved, as it did, that “ $619,760.00 be and it is appropriated and set aside from the surplus profits of the company for the payment of a ten hundred sixteen percent (1,016%) dividend upon its outstanding capital stock,” it created a liability of itself to its sole stockholder in the sum of $619,760. W. E. Caldwell Co., 6 B.T.A. 47 . When petitioner discharged that liability, under a further resolution of its directors and the consent and acquiescence of the stockholder, by the transfer to the stockholder of assets of the petitioner at a valuation equal' to the liability, as it did, petitioner received income in an amount equal to the difference between the cost of those assets to petitioner and the liability so discharged. Callanan Road Improvement Co., 12 B.T.A. 1109 ; Bacon-McMillan Veneer Co., 20 B.T.A. 556 . If a dividend in kind was intended there is no apparent reason to mention the amount of the dividend in dollars or the percentage of the capital stock, for neither was involved.
Black, Sternhagen, and Adams agree with this dissent.