# Alabama Asphaltic Limestone Co. v. Commissioner > United States Board of Tax Appeals · February 14, 1940 · 41 B.T.A. 324 URL: https://www.frixlaw.com/law-library/cases/4497919 ## Case - **Full name:** ALABAMA ASPHALTIC LIMESTONE COMPANY, v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Board of Tax Appeals - **Decided:** February 14, 1940 - **Citations:** 41 B.T.A. 324; 1940 BTA LEXIS 1193 - **Precedential status:** Published - **Opinion:** Dissent by Disney - **Judges:** Both, Issents, Expressed, Disney, Mellott, Steenhagen, Murdock, Fossan, Agree, Leech, Hill - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4497919 ## Opinion text Disney, dissenting: I agree with all that Mr. Murdock has said in his dissent. In addition, even if we assume reorganization and the applicability of section 112 (b) (4), in spite of the fact that the section applies only where the exchange is solely for stock or securities, and such was not the case here, we would still be under the necessity of considering the modification of section 112 (b) (4) by section 112 (d). Under section 112 (d) it is necessary to inquire whether the corporation receiving “other property or money” distributes it in pursuance of the plan of reorganization. If such distribution does not take place, gain is recognized not in excess of the money and value of other property received. This whole question the majority opinion does not consider, though money was in fact received, a dividend paid *339 only to nonassenting creditors, administration costs and receiver’s certificate and preferred paid claims. In addition, there was an obligation to pay A. Iselin & Co. $40,000, apparently on behalf of the old corporation. I think we should have considered the application of United States v. Hendler, 303 U. S. 564 , to these obligations and therefore should have considered adjustment of base under section 112 (d), and that without examination of such questions the case is not completely disposed of, even on the theory that there was reorganization, with which I disagree. I therefore dissent. Mellott agrees with the views expressed in both of the above d issents. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4497919. Public record. Not legal advice.