(dissenting in part and concurring in part).

I respectfully dissent. I would affirm the Tax Court in respect to the nonliability of the individual taxpayers, i. e., cases 19075 to 19079, inclusive.

I deduce the matter that concerns my brothers is the loophole in present laws which allows a corporation whose stock is owned equally by two principals to take deductions in certain years for accrued salaries payable, never incur actual expenses for such deductions, and then have the liabilities written off without any tax recognition because the item is treated as a capital contribution by the shareholders. If on a balancing of all factors, this method of corporate tax liability reduction is a loophole that should be plugged, then it should be done by legislative action, not by judicial fiat. The majority opinion seeks to remedy the supposed leak by attaching liability to the individuals involved by extending the dominion and control cases, represented by Helvering v. Horst, 311 U.S. 112 , 61 S.Ct. 144 , 85 L.Ed. 75 (1940).

This majority opinion is the first I have encountered which recognizes a realization of income by shareholders upon an increase in corporate net worth, luhere no dividend has been declared or capital gain yet realized by the shareholders. Shareholders’ interests in corporations change every day. The net worth of corporations is in a constant state of flux. Surely, when it increases, the shareholders are not yet deemed to have made a taxable gain. Rather the increase in corporate net worth is merely a paper increase of the shareholders’ equity, not taxable until such time as the shareholders realize the increase by virtue of a dividend, or the sale or exchange of the security investment above cost. Then, and only then, have the courts traditionally recognized “a taxable event.”

The use of the Horst line of cases as authority for recognizing the creation of a taxable event for the individuals in the ease at bar is to me misleading.' The evasionary device attacked in Horst and its progeny was different from the present situation. Those cases involved assignments of income rights to others prior to the point of realization of the income by the taxpayer himself. Such an anticipatory device by a taxpayer with complete control over the income was clearly a loophole in our tax laws that required plugging. Otherwise a taxpayer could assign his earnings directly to his creditors or family and claim there was never any income realization on his part. The case at bar does not involve a flagrant example of this potential loophole. The taxpayers here have had no benefits realized by the issuance of additional stock for the cancellation of a cor *931 porate debt; their income has not been diverted to anyone else for their own personal benefit. They did not exert any power to dispose of their alleged “income” in a manner equivalent to ownership, and will not do so until the ordinary taxable event occurs — the sale of their stock.

The Lidgerwood case, cited, is in my opinion not controlling on the facts of this case. In fact the opinion seems to overlook the corporate nature of the stockholder in that case. The bad debt deduction was disallowed the parent-stockholder, but the cancellation was treated not as income to the parent or its creditor subsidiaries; rather it was properly treated as a capital contribution. To the extent the Lidgerwood case is relevant to the facts before us, it supports the conclusion that the taxpayers have not yet realized income by the receipt of additional shares of stock (while maintaining their identical proportional interests) for a debt cancellation.

Another approach to the problem, which to me supports the decision of the Tax Court, is as follows;

The two equal owners of the corporation are cash basis taxpayers. They each work on behalf of the corporation for three years without drawing a salary. Thus each has no current employment income subject to tax. However, the full time services each renders to the corporation are of some value; and are here valued at $15,000 per year. These services have their effect on the corporate performance. Consequently, these gratuitous services result, at the end of three years, in a corporate net worth presumably $90,000 greater than it would have been without their services. If at any time one or both of the individual owners decides to sell his investment, he will be taxed in effect for his gratuitous services because the proceeds from any sale would presumably be $45,000 greater than they would have been had he not contributed his services. He has not taken advantage of any tax loophole that does not already exist. Rather, he has just chosen not to take a current salary which would be taxed at ordinary income rates, and hás instead increased the value of his investment to be taxed at a subsequent time at capital gain rates. I contend that, from the individual’s standpoint, this is exactly what has occurred in the case at bar.

As to the corporation tax liability (case No. 19074), I would affirm.

Under the Internal Revenue Code and regulations, the corporation did not realize income on account of its issuance of capital stock to Fender and Randall, and did not realize income on account of the cancellation of the salary indebtedness to Fender and Randall. From the point of view of the corporation, any consideration received by it upon an original issue of its corporate stock, whether more or less than the actual or the.stated value thereof, is a receipt of capital, not income. Merten’s “Law of Federal Income Taxation,” Vol. 7, p. 67.; I.R.C. 1032(a); Reg. 1.1032-1.

Also, should we treat the capital stock issued as valueless and view the transactions as the gratuitous forgiveness of the salary obligations of the corporation by the respective stockholder-employees, still the corporation would not thereby have realized taxable income. It is established *932 both by regulation and court decision that the gratuitous forgiveness by a shareholder of a debt owed to him by the corporation represents a contribution to the capital of the corporation and is not taxable income. Regulation 1.61-12 (a); Carroll-McCreary Co. v. Commissioner, 124 F.2d 303 (2d Cir. 1941). Under the Internal Revenue Code, a contribution to the capital of a corporate taxpayer is expressly excluded from the definition of reportable gross income. 26 U.S.C. § 118 . In this case, the corporate obligations which were cancelled were unpaid salary obligations to the shareholders which had been deducted as operating expenses by the corporate taxpayer in its annual accrual-accounting income tax returns and which, if paid, would have represented taxable income to the shareholder-employees. In dealing with a corporation’s possible tax liability arising from the gratuitous forgiveness of a debt by a shareholder, the law makes no distinction on the basis of how the obligation arose, that is, whether or not it arose out of a transaction which had permitted the corporation, in an earlier tax year, to deduct the charge from reportable gross income, or whether or not the obligation, if paid, would have constituted reportable income to the shareholder-taxpayer. The forgiveness of the debt by the shareholder is, in either case, from the viewpoint of the corporate taxpayer, a contribution to capital, and not a taxable event. In Helvering v. American Dental Co., 318 U.S. 322 , 63 S.Ct. 577 , 87 L.Ed. 785 (1943), the Supreme Court held the forgiveness of interest on notes and of rentals due by nonstockholder creditors to be gifts and capital contributions to a corporation, though “the motives leading to the cancellation were those of business or even selfish.” Also, in Commissioner v. Auto Strop Safety Razor Co., 74 F.2d 226 (2d Cir. 1934), the court, under regulations like those now prevailing, held the voluntary cancellation by the sole stockholder of a subsidiary corporation of over two millian dollars in debts, a portion of which represented expense items previously deducted, such as royalties and interest, to be a nontaxable contribution to the capital of the subsidiary corporation, and said: “V/hen the indebtedness was canceled, whether or not it was a contribution to the capital of the debtor depends upon considerations entirely foreign to the question of the payment of income taxes in some previous year.”

I believe a word or two of further explanation is required. The amounts now being treated as contributions to capital have previously been deducted by the corporation on its accrual-method tax returns. Had the individual taxpayers merely loaned money to the corporation and now cancelled the indebtedness, the cancellation would clearly be a contribution to capital, and such contribution should not be treated as taxable income to the corporation. However, the case at bar involves an indebtedness in the nature of accrued salaries which, unlike the hypothetical taxpayer loans, have once been deducted from income in prior years, consequently lessening the corporation’s tax liability. Where sums have been deducted as expenses in previous years under an accrual method of accounting, and are now forgiven and are no longer corporate liabilities, the corporation ordinarily must add back the amount of the cancellation to its current income. If it need not, a flagrant loophole is created whereby expense deductions are taken without expenses ever being incurred or paid out. I refer to the language in Helvering v. Jane Holding Corp., 109 F.2d 933 (8th Cir. 1940).

While I agree with Judge Thompson’s ultimate conclusion that the company has not realized income by the cancellation of the accrued salaries obligation, I do believe to properly justify that conclusion requires some discussion of the conflicting line of cases dealing with shareholder cancellations of indebtedness where the indebtedness has previously been deducted by the corporation as an operating expense.

Regulation § 1.61-12 (a) addresses itself directly to the problem of the cancellation of an indebtedness by a shareholder of a corporation. Generally, it maintains that the gratuitous forgiveness of a debt constitutes a contribution to capital, the corporation thus realizing no income. The leading precedent for this line of reasoning is Helvering v. American Dental Co., supra. In that case, the Commissioner had increased the taxpayer’s reported income by the sum of the items of the cancelled indebtedness which had served to offset income in like amounts in prior years. But the Supreme Court held that the gratuitous cancellation of rent and interest due should be deemed a gift and not income.

The leading precedent for the opposing point of view, recognizing income to the taxpayer relieved of an indebtedness, is the later case of Commissioner v. Jacobson, 336 U.S. 28 , 69 S.Ct. 358 , 93 L.Ed. 477 (1949), which taxed the difference between the face amount of the taxpayer’s personal indebtedness as the maker of secured bonds issued at face value, and a lesser amount paid by him for their repurchase. There was no evidence that there had been a transfer of something for nothing: the seller received the maximum price attainable.

Neither of these cases serves as exact precedent for the situation we have here; the cancellation of accrued salaries which have been deducted by the debtor-corporation in prior years. The leading exponents of the conflicting points of view in the accrued salary cases are Helvering v. Jane Holding Corp., supra, in favor of income recognition, and Carroll-McCreary Co. v. Commissioner, 124 F.2d 303 (2d Cir. 1941), holding no realization of income from the gratuitous cancellation of debts for unpaid salaries owing to officer-shareholders. The Jane case preceded the decision in American Dental Co., supra, and the trend of the case law since the latter decision has been to follow Carroll-McCreary and hold no income is recognized if there was no consideration given as inducement for the cancellation. The cases have interpreted “gratuitous” forgiveness of a debt as simply meaning that no consideration was paid by the corporation for release of the debt. The prior deduction of the debt as a corporate expense has been held immaterial to the question of whether a nontaxable capital contribution was effected by the debt release. See, e. g., In re Triple Z Products, Inc., 27 AFTR 1164; Pondfield Realty Co., 1 T.C. 217 , as reversed without written opinion under the rule in American Dental Co. (2d Cir., September 15, 1943), reported at ¶ 61, 103 P-H 1943 Fed.

In the absence of evidence of consideration passing from Fender Sales, Inc., *934 to the individual shareholders for cancellation of the accrued salaries indebtedness, the above case law supports the conclusion that the corporation did not realize income by the release of the accrued salaries liability, though the corporation had already taken the amount as deduction for expense of doing business.

Any potential loophole that is created by attaching no tax liability to the individuals or the corporation is a product of the legislature’s failure to compel the corporation to make an income recognition when their accrued deductions are cancelled. This is an error which the legislature should be called upon to reconsider. It should not be corrected by committing a second error in the present case to offset the first.