¶1concurring: I think this case is much simpler than petitioners in their argument and the majority of the Board regard it. It is stipulated that “ the greater part [the amount is not stated] of said ‘ contributed surplus ’ was paid in by the stockholders from various sums credited to the stockholders’ individual accounts on the corporate books from former years’ earnings and profits of the corporation.” So in reality this greater part was not paid in by the stockholders at all. It had never left the corporation after being derived as former years’ earnings and profits. The credit to the stockholders is meaningless except, as a dividend, and yet there is no suggestion that such an earlier dividend was declared and taxed; and likewise the “contributed surplus” is an empty phrase. As to this “greater part,” the stockholders had not had it and had not contributed it; and what they never had could not be returned to them. All I can see is that in 1922 they received for the first time a distribution of earnings and profits accumulated since February 28, 1913. There is, therefore, no occasion to consider whether, if it were a capital distribution, it would nevertheless be taxable as a dividend under section 201 (a). Although I do not now dispute the conclusion of the prevailing opinion on that question, I think it is not raised by the stipulated facts and, like other moot questions, should not be considered until facts arise which are governed by it.
¶2The cases of Southport Mill, Ltd., 6 B. T. A. 1013, affirmed in 26 Fed. (2d) 17; and William H. Davidow Sons Co., 1 B. T. A. 1215, are beside the point. They postulate a dividend declared, and, hence, a debt, left in the business, and hold as to the corporation that such amounts are borrowed capital and excluded from statutory invested capital in computing excess-profits tax. In the present record there was no dividend declared and, hence, no debt, so that we must assume that while the profits tax was in force the Commissioner acted correctly and included the amounts in the corporation’s invested capital. But whether they were or not is a collateral question which can not affect the disposition of the present issue on the evidence.