The opinion
Van Fossan, /., dissenting: The prevailing opinion holds, in effect, that the payment in compromise of the suit for damages under the Federal antitrust laws has not been shown to constitute a restoration of capital. I can not agree.
The injury to Raytheon was tortious. There was no contract, express or implied, between Raytheon and RCA. The pleadings in the suit brought under the Sherman and Clayton Acts charge only the tortious conduct of the defendant. They neither claim nor suggest as a measure of damage the loss of profits, nor is there any indication in the record that the compromise settlement was predicated on such basis. The charge was based on the illegal injury to plaintiff’s business and property, specifically its good will. The case thus comes squarely within the decision of the court in Farmers & Merchants Bank of Catlettsburg, Ky. v. Commissioner, 59 Fed. (2d) 912. That case was cited with approval by the Board of Tax Appeals in Edward H. Clark, 40 B. T. A. 333, and Highland Farms Corporation, 42 B. T. A. 1314. See also Strother v. Commissioner, 55 Fed. (2d) 626; Henri Chouteau, 22 B. T. A. 850.
The cases in which damages have been held to be includible in income seem to rest on the fact that the suits in question were based on loss of profits. Herman J. Sternberg, 32 B. T. A. 1039; Dexter Sulphite Pulp & Paper Co., 23 B. T. A. 227; Swastika Oil & Gas Co., 40 B. T. A. 798; affd., 123 Fed. (2d) 382.
I am likewise unable to concur in the conclusion that the case involves a question of basis. The character of the item, the treatment thereof by petitioner and the respondent, in my judgment, raise no such question.
In my judgment the record amply demonstrates that the payment here involved constituted a restoration of petitioner’s capital and did not constitute income to recipient. I would reverse respondent’s action.