The opinion
MADDEN, Judge
(dissenting).
I am unable to agree with the court’s decision. The object of the parties here, as in the case of Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331 , 65 S.Ct. 707 , 89 L.Ed. 981 , was to transfer certain tangible property from the plaintiff corporation, its owner, to the TriCounty Electric Membership Corporation. In the Court Holding Company case, the tax consequences of a direct sale were not at first known to the selling corporation, hence it proceeded, up to a point, with the negotiation, but, upon learning that taxes would be reduced by first dissolving the corporation and distributing the assets to the stockholders, who, in turn, would transfer them to the intended purchaser, it followed that course. The court held that the fact that the transfer was made by two steps instead of one, did not, in the circumstances, reduce the tax liability. The instant case involves the same two steps, taken for the same reason. The factual difference that here the plaintiff corporation knew from the outset what the tax consequences of a direct sale would be, instead of, as in Court Holding, learning them later, cannot be important. The corporation had not, in that case, proceeded to the *856 point of making a binding agreement of sale before it discovered the tax problem and changed the form of the transaction. Hence it could be said in that case, as well as in our case, that perhaps the corporation, or the stockholders who controlled it, would not have been willing to sell at all, unless they could keep the taxes which would result from the sale down to the level at which the form of the transaction was directed.
My views as to how this and similar ques-' tions of taxation should be treated are expressed in the case of Benjamin Guinness v. United States, 73 F.Supp. 119 , 109 Ct.Cl. 84, 106 , certiorari denied, 334 U.S. 819 , 68 S.Ct. 1083 , 92 L.Ed. 1749 .
I do not discuss the plaintiff’s claim for losses upon the sale of its remaining machinery and real estate, in view of the court’s decision that there were no profits against which these losses could be set off.