The opinion
Sternhagen,
dissenting: I think the Commissioner has proved enough to establish prima facie that petitioner is liable in equity for the unpaid deficiencies of the transferor. While there is still the possibility that the transferor was, after conveying his residence to the corporation, the owner of assets sufficient to satisfy the deficiencies, this could have been shown by the petitioner, which was Ms privately created corporation; and I think it fair and not a violation of the rules of evidence to require the petitioner to go forward with evidence *271 to show it or suffer the reasonable inference that the transferor retained nothing with which his tax liability could he satisfied.
There is no need here to import all the technique of setting aside fraudulent conveyances. The question is one of equitable liability. The individual taxpayer, while his deficiency was being litigated in the Board, set up a new corporation to which he transferred his residence and took all its shares, one directly and five to his nominees, members of his family. The corporation was not an innocent stranger. It knew all that the taxpayer knew. So far as this record shows, its shares continued to be owned by the same persons. Without more, there is ground for equitable liability. Seven or eight months later, the taxpayer transferor was found to be insolvent. This, taken with all the earlier circumstances, should establish the liability sufficiently to require rebuttal. What such rebuttal might have been to be effective need not be suggested; but since the transferee has preferred to rest with none at all, the case against it should be held to be established.
Mellott agrees with this dissent.