Bamberger v. Commissioner

¶1concurring: I agree with the result reached by the Board in this case, but I do not agree with some of the statements and conclusions expressed in the prevailing opinion. Section 113 (a) (9) of the Revenue Act of 1928 provides that the basis shall be apportioned between the stock in respect of which the distribution was, made and the stock or securities distributed. The act itself does not go into detail in regard to the manner of apportioning the basis, but provides that it shall be under rules and regulations prescribed by the Commissioner with the approval of the Secretary. This called! for some reasonable regulation. Following the enactment of this, statute, Regulations 74 were promulgated, containing article 600-It was susceptible of the interpretation that where the stock distributed in reorganization was in part stock in a corporation other than the distributing corporation, the basis should be apportioned in proportion to the respective values of each class of stock at the time of the distribution. Stock of one corporation is materially different, from that of another, both as to its character and preference. Therefore, the Commissioner correctly applied subdivision (2) of the article. It seems to me that the interpretation which the petitioners would place upon the article would make it an unreasonable regulation. Such an interpretation should be avoided in favor of a reasonable one. Thus, I would never get to the question which is discussed and decided in the prevailing opinion.