The opinion
Smith,
concurring: The respondent asks the Board to find that “Cia had no office or place of business in the United States and was not engaged in any trade or business therein.” In his brief the respondent states: “The entire income which the respondent seeks to tax came from the United States and it was paid to Cia solely because of the commerce which Cia carried on in the United States.” In the opinion of the Board it is stated: “The question of whether or not a foreign corporation does business within the United States by broadcasting a program from a foreign country designed for listeners within the United States is one which may have to be decided in later cases.” It seems to me that the question which the Board refuses to answer is inherent in this case. It is the whole predicate for the respondent’s argument that the petitioner is liable to tax as withholding agent. I think that it should be held that a foreign corporation does not transact business within the United States simply by broadcasting a program from a foreign country designed for listeners within the United States. There is no merit in the respondent’s contention upon this point. The petitioner was not a withholding agent within the purview of the taxing statute.