dissent">Van Fossan,

dissenting: I am unable to agree with the prevailing-opinion of the Board. The respondent, relying upon Treasury Decision 3435, which has been incorporated in Internal Revenue Regulations 65 and 69 as a part of article 31, determined that the difference between the fair market value of the stock of the Standard Company on October 30, 1920, and the amount paid therefor by the petitioners constituted a dividend -and taxable income to them. The pertinent- part of the regulation is:

Where property is sold by a corporation to a shareholder or member, or by an employer to an employee, for an amount substantially less than its fair market value, such shareholder or member of the corporation or such employee shall include in gross income the difference between the amount paid for the property and the amount of its fair market value. In computing the gain or loss from the subsequent sale of such property its cost shall be deemed to be its fair market value at the date of acquisition.

In this case the petitioner acquired by purchase from the Cleveland Company property of value. In the record of the case I find *1272no evidence that the sale was fraudulent or fictitious or not in good faith. The conclusion of the majority to the contrary seems to me to be based on an inference that does violence both to the evidence and to reason. The petitioners paid for the property the price demanded by the corporation. Stockholders may contract and otherwise deal with the corporation as freely and validly as may any individual. In some cases, because of particular facts and circumstances, their dealings may be subjected to special scrutiny, but there is no presumption that the transaction is fraudulent, or mala ftdes, or invalid, merely by virtue of the relationship existing between the parties. Fraus est odiosa et non praesumenda is an old maxim of the law. The majority holding that the sale was not bona fide is but another way of saying petitioners were guilty of fraud. This is a charge not lightly to be made.

It appears that the petitioners were not the only stockholders of the Cleveland Company and that the sale of the Standard Company stock to them was without relation to the amount of stock held by each in the Cleveland Company and without relation to the proportionate holdings of all the stockholders of that company. There is no indication in the record of an intent to distribute to the petitioners, as stockholders, any of the profits or surplus of the corporation. Nor is there any direct evidence that the transaction between the petitioners and the Cleveland Company was not a valid purchase and sale.

Ordinarily, the purchaser of property derives no taxable income from the purchase, and the Board has held that “ no gain or loss results from buying an article at less than its value until it is realized by sale or other disposition.” Morgan J. McMichael, 4 B. T. A. 266, 269. See also Frost Company of Georgia v. Rose, 25 Fed. (2d) 997.

The theory apparently underlying Treasury Decision 3435 is that every sale of property by a corporation to a stockholder, or by an employer to an employee, for a sum substantially less than the fair market value of such property is presumptively calculated to evade payment of taxes. Instances may readily be conceived where a corporation or an employer might use such a device for the purpose assumed in the Department ruling, but it can not fairly be said that every such transaction is, in fact, a distribution of profits or compensation for services. Due regard must be given in each particular case to all the facts and circumstances surrounding the transaction involved. The ruling as stated is too broad. If it appears in any particular case that the transaction is in fact a distribution of corporate profits or compensation for services, then the ruling may well be applied and the transaction held to result in the receipt of income by the purchasing stockholder or employee.

*1273Where the facts do not support such a conclusion, the ruling is unwarranted. In this case, in my opinion, the facts do not sustain the respondent’s position.

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