OPINION.
Marquette:
The contention of the taxpayers is that, looking through form to substance, the dividend of the Peerless Manufacturing Co. constituted a stock dividend as to them, and consequently was not taxable as income. In support of their position they rely upon the decisions in United States v. Mellon, 279 Fed. 910, affirmed in 281 Fed. 645, and United States v. Davison, 1 Fed. (2d) 465. There are no doubt expressions in both cases which give color to the conclusion that the dividend herein constituted a stock dividend, and this is especially true of the Davison case, where the court said:
If tlie purpose of the corporation is to retain the accumulated profits, while la effect distributing them as a dividend, it would seem immaterial whether the stock was issued direct or the stockholder given the right to apply, the cash dividend declared in payment of the new stock, as the effect in the two cases would be precisely the same. In either case, the accumulated profits are legally retained for corporate purposes. In neither case has the stockholder received anything out of the company's assets for his individual use. On the other hand, his original investment and its accumulations, still remain the property of the company and subject to the hazards of its business. In fact, he has not received that which may be properly designated income. .
Assuming the conclusions of the court to be a correct statement of the law, we do not think they are applicable to the facts before us. The resolution declaring the dividend by the Peerless Manufacturing Co. was passed prior to the date of the resolution authorizing the increase in the capital stock, and neither resolution contained an option to the stockholders with relation to the application of the dividend declared in the purchase of new stock. The result of the dividend resolution was to create the relation of debtor and creditor as between the corporation and its stockholders in the amount of the dividend declared. Appeal of A. H. Stange, 1 B. T. A. 810; and Appeal of Wm. H. Davidow Sons Co., Inc., 1 B. T. A. 1215. The agreement between the individual stockholders to purchase new stock with dividends when paid does not serve to change the character of the corporate action and make that a stock dividend which was intended to be a cash dividend.
Upon the declaration of a dividend the right of the stockholders becomes fixed and the dividend becomes segregated from the stock and exists independently of it; the acquisition of new stock of the corporation with the dividend checks constitutes a purchase of the stock and the dividend was consequently realized as income at the time the checks were received. We do not regard the fact that the corporation had insufficient cash on hand to pay the dividend as of controlling importance. It had a surplus in excess of the dividend declared, and the indebtedness to its stockholders existed irrespective of that fact. The right to declare a dividend from surplus profits was exercised by the directors and it became their duty to provide ways and means to make payment thereof. If surplus profits have in fact been earned and are invested in property used in the business of the corporation, a dividend may properly be paid by borrowing money. 6 Fletcher Cyc. Corps., sec. 3665.
We are therefore of opinion that the dividend declared by the Peerless Manufacturing Co. on August 21,1920, was a cash dividend, and that the subsequent action of the stockholders in indorsing the dividend checks to the corporation in exchange for its stock did not constitute the dividend a stock dividend.