Edward J. McCarthy, Bridgeport, Conn., for appellants.

Robert J. Golten, Department of Justice, Washington, D.C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, David O. Walter, Department of Justice, Washington, D.C., Jon O. Newman, U.S. Atty., Hartford, Conn., F. Owen Eagan, Asst. ,U.S. Atty.), for appellee.

Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judges.*

This is an appeal from a summary judgment adverse to the appellant in a suit for refund of income taxes paid to satisfy deficiency assessments for the years 1954, 1955 and 1956. The taxpayer, Mrs. Lora McCarthy,1 owned 1000 shares of the stock of The Andrew Radel Oyster Company, a family corporation, which she had acquired through inheritance. In December 1954, she sold her shares to the corporation which paid for them with liquid assets it had accumulated out of earnings and profits over a long period. It was the taxpayer's use of a claimed loss on this transaction to offset income for the years in question that the District Director disallowed.

The court below found that there was no genuine issue of fact which would rebut the District Director's determination that the payment made by the corporation for the purchase of her stock was not a distribution in partial liquidation and ruled that the loss deduction was properly disallowed under 267 of the 1954 Code. We agree.

The issues before us have been narrowed somewhat. The government has conceded that the payment received by the taxpayer from the corporation escapes dividend tax treatment as a distribution under 302(b)(3) of the 1954 Code.2 The taxpayer has conceded that since her two sisters and her two brothers owned the remaining 4000 outstanding shares of stock, the transaction out of which the claimed loss arose was between related taxpayers as defined in 267(b) and that the recognition of any loss is governed by 267 of the Internal Revenue Code of 1954.

The foundation of the taxpayer's dispute with the District Director lies in that portion of 267 which provides:

'(a) Deductions disallowed.

'No deduction shall be allowed-- '(1) Losses.

'In respect of losses from sales or exchanges of property (other than losses in cases of distributions in corporate liquidations), directly or indirectly, between persons specified within any one of the paragraphs of subsection (b).'

It is taxpayer's contention here, as it was below, that the payment to her by the company constituted a 'distribution(s) in corporate liquidation(s)' within the parenthetical exception in 267(a)(1) and, therefore, that the loss was deductible.3

Briefly stated, her first and principal argument for this expansive view of the exception is that partial liquidations as embodied in the phrase 'distributions in corporate liquidations' in 267(a)(1) includes all distributions in redemption of stock which are not essentially equivalent to a dividend. On the premise that the history of what the law has been is necessary to the knowledge of what the law is, she turns to the statutes and regulations to find the meaning of the term 'partial liquidation,' and necessarily so, for when the concept of 'partial liquidation' was first brought to light in the Revenue Act of 1924, 'it was not a phrase drawn from the common corporate parlance of the day.'4 The concept of 'partial liquidation' which she urges upon us is drawn from the context of certain provisions in the 1939 Code.

She begins by pointing out that 115(i)5 of the 1939 Code said a 'partial liquidation' includes 'a distribution * * * in complete cancellation or redemption of a part of its stock' by a corporation. Section 155(c)6 provided that distributions in partial liquidations were to be treated as payment in exchange for the stock. In the same section, 115(g)(1)7 said that if a distribution was made 'in such manner' as to make the redemption 'essentially equivalent to the distribution of a taxable dividend' it should be treated as such to the extent that it represented a distribution of earnings and profits. This is an abbreviated recital of the prior law from which the appellant's interesting three-step thesis emerges. That is, that the redemption of stock in question would have been considered a partial liquidation under 115 of the 1939 Code. Taxpayer then assumes that it is the definition of partial and complete liquidation under 115 which would have been used to determine whether a distribution to the taxpayer in exchange for her stock was a 'distribution in liquidation' within the exception of 24(b)(1)(B) of the 1939 Code, predecessor to 267(a)(1) in the 1954 Code. The final link in the argument

Under the 1939 Code, the exception change this theorized result when it passed the 1954 Code. While the appellant's assumption may appear to be plausible,8 since nowhere else in the 1939 Code could one find any other definition of liquidation, there is considerable doubt whether 155(i) was carried over to 24, enacted ten years later and without any clear indication in legislative history that a cross-reference was intended. In Commissioner v. Estate of Bedford, 325 U.S. 283, at 291-292, 65 S. Ct. 1157, at 1161, 89 L. Ed. 1611 (1945), the Supreme Court rejected a similar contention, stating:

'Respondent, however, claims that this distribution more nearly has the effect of a 'partial liquidation' as defined in 155(i). But the classifications of 115, which governs 'Distributions of Corporations' apart from reorganizations, were adopted for another purpose. They do not apply to a situation arising within 112. The definition of a 'partial liquidation' in 115(i) is specifically limited to use in 115'.

Also, if 115(i) were to be lifted into 24 without qualification, that would produce the weird result that a distribution in liquidation essentially equivalent to a dividend, which, by virtue of 115(g)(1), would not qualify as a sale of exchange under 115(c), would nevertheless be recognized as a loss under 24.

Whether or not 115(i) was concerned with 115 alone under the 1939 Code, the 1954 Code unmistakably eviscerated it.

'The 1954 Code

The 1954 Code divided the relevant portion of 115(c) into two parts: 3029 in Subchapter C, Part I, entitled 'Corporate Distributions' and 34610 coupled with 33111 in Part II, entitled 'Corporate Liquidations.' It is generally agreed that this division into separate sections was motivated by Congress' desire to dispel the confusion created by the unsuccessful attempt of the cases arising under the 1939 Code to develop either general conformity or clarifying principles in the taxation of distributions in redemption of corporate stock.12 McGinty v. Commissioner, 325 F.2d 820 (2d Cir. 1963). See United States v. Carey, 289 F.2d 531 (8th Cir. 1961); Friend v. United States, 226 F. Supp. 814 (D.Mass.1964).

As stated in McGinty v. Commissioner, supra, 325 F.2d at 821, it was

'in an effort to promote greater certainty in area, (that) Congress made several changes in the comparable provisions under the 1954 Code. Where, under the 1939 Code, changes in both the shareholder's relation to the corporation and in the scope of the corporation's activity were held relevant to the question of dividend equivalence, it is clear that under 302 of the 1954 Code only the former are relevant. 'Corporate contraction' is to be considered in determining whether a distribution in redemption of stock is a partial liquidation under 346'.

But in connection with the problem in this case, there is some difficulty in determining what effect these changes were to have on the scope of the exception in 267, Subchapter B, Part IX of the 1954 Code.

It is true that there is nothing in the congressional reports of 1954 to indicate that in revising the treatment of corporate distributions Congress was at all cognizant of the effect on 267. Nor does the text of the law or legislative history express any rationale for the exception either to begin with or when the change was made in 1954. Yet, even in the absence of a direct cross-reference between 267 and 346, there are convincing indications that the 'corporate liquidations' exception of 267, at least today, is to be limited to corporate liquidations and partial liquidations as defined in 346. Under the 1939 Code, the exception in 24(b)(1)(B) was phrased, 'except in the case of distributions in liquidation.' This same phrase constituted the title of 115(c), 'Distributions in Liquidations,' which extended the benefit of capital gains treatment to both complete and partial liquidations as then defined in 115(i). But the exception in 267(a) now reads, 'other than losses in cases of distributions in corporate liquidations.' This terminology parallels the heading Part II of Subchapter C of the 1954 Code which is entitled 'Corporate Liquidations' and it is in Part II that 346 is found. However, 302 has been placed in Part I of Subchapter C, which is entitled 'Distributions by Corporations.' Against the aid afforded by this identity of language, there is not the slightest foundation in the 1954 Code for the appellant's argument that Congress meant that tax authorities should look elsewhere for a different test of corporate liquidation to be applied to family transactions.

Under 267(b)(2) non-recognition of loss depends upon the existence of a family relationship among the stockholders who control the corporation.13 Section 24(a)(6) of the Revenue Act of 1934, 48 Stat. 680, 691, the first ancestor of 267, was strictly applied by the courts. In McWilliams v. Commissioner, 331 U.S. 694, at 699, 67 S. Ct. 1477, at 1480, 91 L. Ed. 1750, 170 A.L.R. 341 (1947), the Supreme Court said:

'Section 24(b) states an absolute prohibition-- not a presumption-- against the allowance of losses on any sales between the members of certain designated groups. The one common characteristic of these groups is that their members, although distinct legal entities, generally have a near-identity of economic interests. It is a fair inference that even legally genuine intra-group transfers were not thought to result, usually, in economically genuine realizations of loss, and accordingly that Congress did not deem them to be appropriate occasions for the allowance of deductions'.

'concluded that the purpose of 24(b) was to put an end to the right of taxpayers to choose, by intrafamily transfers and other designated devices, their own time for realizng tax losses on investments which, for most practical purposes, are continued uninterrupted.'

Ordinarily, the sale of stock is the same as the sale of any other property. Yet, in the case of a total liquidation, there is no difficulty in determining whether or not a loss has been incurred by all of the members of the family who joined the corporation's venture. This could account for the exception in 267(a). But, where the shares of only one family member are redeemed by a family corporation, 'an economically genuine realization of loss' to the family is somewhat obscured. As a group, they still hold 100% Of the outstanding stock and the corporate enterprise may remain intact. If the exception in 267 for losses in distributions in corporate liquidations were to be read to include any distribution not equivalent to a dividend which does not result in a complete liquidation, this would hardly constitute 'an economically genuine realization of loss.' This test cannot be satisfied by anything less than a discontinuance of a proportionate amount of that business enterprise. This can be determined only by the 'corporate contraction' test. In the absence of a 'contraction,' sales of stock to the corporation should be treated no differently than a sale of stock to any other member of the family. A mere disproportionate redemption or a termination of a shareholder's interest so as to qualify for capital gains treatment under 302 is not sufficient.14

Appellant's second argument is that even if the 267 exception is limited to partial liquidations as defined in 346, that definition includes all distributions in redemption which are not essentially equivalent to a dividend. This argument differs from her previous one only in that she makes it with reference to the definition of partial liquidation now found in 346 of the 1954 Code instead of to the earlier one in 115(i) of the 1939 Code. We were unable to expand the exception in 267 to make room for distributions not essentially equivalent to a dividend without regard to the definition of 'partial liquidation' in 346. We are equally unable to hold that a distribution not essentially equivalent to a dividend standing alone is a 'partial liquidation' within that definition.

It is true that 302 and 346 both contain the phrase 'not equivalent to a dividend.' But a reading of all the legislative history reveals congressional purpose to effect a separation of the two main tests which had formerly been applied to distributions in redemption of stock.15 Thus, the fact that the distribution received by her was not essentially equivalent to a dividend under 302 because it resulted in a complete termination of her interest has no relevance here. Section 346 is plainly designed to go further in its demands. This is made all too clear by the specification in 346(c):

'The fact that, with respect to a shareholder, a distribution qualifies under section 302(a) * * * by reason of section 302(b) shall not be taken into account in determining whether the distribution, with respect to such shareholder, is also a distribution in partial liquidation of the corporation.'16

Taxpayer then takes another stand to argue that in any event contraction is not an absolutely essential element for a distribution to qualify under 346. She relies upon the following portion of the Senate report as support for this contention:

'Subsection (a) (of 346) is intended to provide a definition of partial liquidation which replaces that contained in section 115(i) of the 1939 Code. Primarily, this definition involves the concept of 'corporate contraction' as developed under existing law.' (S.R.No.1622, 83d Cong. 2d Sess. 262, 3 U.S.Code Cong. & Adm.News 1954, p. 4899.)

Had Congress used the word 'includes' in the 346 definition of partial liquidation, we would be faced with 26 U.S.C. 7701(b) of the 1954 Code: 'The terms 'includes' and 'including' when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.' But reading the Senate report in context, the word 'primarily' is not misleading. It was not used to create a larger category of 'partial liquidations,' but to accent a predominant characteristic common to all which come within the statutory definition. It means that other requirements also have to be met, not a non-exclusivity allowing the use of all of the old pre-1954 tests. The requirements in 346(a)(2) are not in the disjunctive. Thus, for a distribution to receive tax treatment as a partial liquidation, three requisites must be met: (1) It must not be essentially equivalent to a dividend; (2) It must be in redemption of part of the stock pursuant to a plan; and (3) It must occur within the taxable year.

However, it is urged that the term 'partial liquidation' may include redemptions resulting from activities at the corporate level, or prompted by corporate needs, even though not involving a contraction. See Brodsky, Partial Liquidation: Definition of Partial Liquidation and Rules for Determining Termination of a Business, 15 Institute on Federal Taxation 539, 552 (1957). Examples suggested of such corporate needs are a corporation's desire to improve its credit rating or to make stock available to its employees. We find it unnecessary to pass upon this contention, for the only non-contraction purpose put forth by the taxpayer was a statement by her two brothers that they permitted the redemption to enable them alone to dissolve the corporation, if they later so desired. Under no theory could this be considered a corporate purpose. This was nothing other than a shareholder purpose, for it merely satisfied the wish of her brothers to gain control of the corporation to carry out their own ends.

The only question remaining is whether there was a 'corporate contraction' pursuant to a 'plan' under 346. Both parties moved for summary judgment. The case was ripe for such disposition. It was not contended that there was a termination of a separate trade or business which would specifically qualify as a partial liquidation under 346(b). Nor do we find any call for making a value judgment as to how much 'corporate contraction' is necessary to constitute a partial liquidation under 346(a). In determining that there was no genuine issue of fact as to whether there had been a partial liquidation, the court below properly took into account the concept of 'corporate contraction' as developed under existing law by focusing attention on what took place at the corporate level. Nothing substantial was offered to challenge the District Director's determination that there was no immediately intended contraction of the corporation's business of producing, harvesting and selling oysters; a sale of certain oyster lands and facilities four years later, on the death of one of the two managing brothers, was properly deemed unrelated by the district judge. The purchase price of.$128.50 per share was based on the then value of the quick assets of the firm other than inventory, less liabilities.17 Nor were any balance sheets or operating statements presented in opposition to the appellee's motion for summary judgment.

The transaction in question was clearly not a vertical liquidation which chopped off a part of the productive resources of the enterprise. That portion of corporate capital remained intact. It was a horizontal slice off the top of a nest egg of securities accumulated from past earnings and profits which did not in any degree impair the business activities of the enterprise as they had been carried on before.18

Nor, as held by the court below, did anything exist to indicate a 'plan.'

The judgment is affirmed.