The opinion
*997 COWEN, Chief Judge
(dissenting):
The construction of a statutory text, unaided by an unequivocal expression of the legislative intent or by crystallized judicial precedent, is a task seldom without its distinctions in preference — distinctions which more often than not are ones of emphasis rather than total disagreement. The stamp tax exemption now before us illustrates such differences of emphasis.
With the majority’s premise that the exemption should be read narrowly, I concur. With its conclusion that the plaintiffs do not fall within the limited confines of the provision, I respectfully dissent.
Section 4382(b) (1) (D) of the Internal Revenue Code speaks in terms of “any plan of reorganization or adjustment * * * whereby a mere change in identity, form, or place of organization is effected.” 1 I am unable to find any indication that Congress intended in that section to distinguish between divisive reorganization and the more familiar type of reincorporation. Cumberland’s fractionation into separate corporate entities was prompted by legitimate business motives and effected no more than a change in its form and place of organization. Moreover, it is acknowledged that the rearrangement of the corporate structure qualified as a reorganization within the meaning of Section 368(a) (1) (D). If we adhere strictly to the wording of Section 4382(b) (1) (D), the reference therein to “any plan of reorganization” is certainly broad enough to encompass the arrangement undertaken by plaintiffs.
The majority has alluded to the scanty legislative history and the paucity of decisional law on the issue presented in this case. Nevertheless, I cannot escape the conclusion that both of these aids to statutory construction favor the exemption claimed by plaintiffs. The last two sentences of the report of the Senate Committee on Finance (quoted in the majority opinion) read:
Reorganizations involving a mere change in identity, form, or place of organization, represent merely a formalistic change and do not involve any shifts in ownership. For that reason [emphasis supplied], your committee has excluded such reorganizations from the issuance and transfer taxes on stocks and certificates of indebtedness as well as from the tax on the conveyance of real property. [S.Rep.No. 2090, 85th Cong., 2d Sess., p. 61 (1958), 1958-3 Cum.Bull. 584, 644, U.S.Code Cong. & Admin.News 1958, p. 4454.]
The fact that “that reason” is singular suggests to me that the phrase “represent merely a formalistic change” is in apposition to the phrase “do not involve any shifts in ownership.” If the two phrases were intended to have different meanings, I think the Senate Committee on Finance would have said “those reasons.”
The only case which provides any real help on the question before us is Cabot Corp. v. United States, 220 F.Supp. 261, 265 (D.Mass.1963), aff’d per curiam, 326 F.2d 753 (1st Cir. 1964). The primary emphasis in that opinion can be summarized in the court’s expression that “a shift in substantive rights of ownership does not fall within the exemption provided by subparagraph D.”
Finally, according to Revenue Ruling 63-203, 1963-2 Cum.Bull. 580, 581:
[Section 4382(b) (1) (D)] is not applicable to a change which involves any shift in ownership, because in any shift in ownership there is involved more than a mere change in identity, form, or place of organization.
Here, it is conceded that there has been no shift in the ownership of the businesses. Therefore, the legislative history, the Cabot case, and the cited revenue ruling provide persuasive authority for the proposition that plaintiffs are entitled to the claimed exemption.
*998 On the admittedly close question to be decided, I cannot join the majority in the emphasis it has placed upon the term “mere” in the pertinent statute. Relying on the authorities cited above, I would stress the fact that Congress did not differentiate among the different types of corporate reorganizations when no shifts in ownership are involved. Accordingly, I would grant plaintiffs’ motion for summary judgment.
COLLINS, Judge, joins in the foregoing dissenting opinion.
. Emphasis added. The same language is contained in Treas.Regs. 47.4382-1 (d) (iv).