opinion: HELVERING, Commissioner of Internal Revenue, v. ELKHORN COAL CO.
  No. 4158.
  Circuit Court of Appeals, Fourth Circuit.
  Oct. 18, 1937.
  On Rehearing April 5, 1938.
  HENRY H. WATKINS, District Judge, dissenting.
  Arnold Raum, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., and Sewall Key and Ellis N. Slack, Sp. Assts. to Atty. Gen., on the brief), for petitioner.
  Leo H. Hoffman, of New York City (Hoffman & Knox, Robert W. Knox, and Francis C. Moore, all of New York City, on the brief), for respondent.
  • Hugh Satterlee, Logan Morris, and Weill, Satterlee, Green & Morris, all of Washington, D. C., amici cur», on rehearing.
  Before PARKER and NORTHCOTT, Circuit Judges, and HENRY H. WATKINS, District Judge.
  PARKER, Circuit Judge.
  This is a petition to review a decision of the Board of Tax Appeals holding profit realized by the Elkhorn Coal & Coke Company upon a transfer of certain mining properties to the Mill Creek Coal & Coke Company to be nontaxable. The ground of the decision was that the transfer was made pursuant to a plan of reorganization within the meaning of section 203(h) (1) (A) of the Revenue Act of 1926, 44 Stat. 12. The facts were stipulated and are set forth at length in the findings of the Board which are reported with its opinion in Elkhorn Coal Co. v. Com’r, 34 B.T. A. 845. Those material to the question presented by the petition are in substance as follows:
  Prior to December 18, 1925, the Elkhorn Coal & Coke Company, to- which we shall hereafter refer as the old company, owned certain coal mining properties in West Virginia and certain stocks in other mining companies engaged in business in that state. It was closely associated with the Mill Creek Coal & Coke Company, which owned neighboring property; and a majority of the directorate of both corporations consisted of the same persons. Early in December, 1925, a plan was formed whereby the old company was to transfer its mine, mining plant, and mining equipment at Maybeury, W. Va., to the Mill Creek Company in Exchange for 1,000 shares of the capital stock of that company. This exchange was accomplished on December 31, 1925, at which time, it is stipulated, the stock received by the old company had a fair market value of $550,000 which is in excess of the deficiency asserted by the Commissioner. There is no contention that the transfer by the old company was to a corporation controlled by it or by its stockholders and therefore within the nonrecognition provision of section 203(h) (1) (B) of the act; but the argument of the taxpayer is that the transfer was of all the properties of one corporation for the stock of another, and therefore within the nonrecognition provision of section 203(h) (1) (A).
  The contention that the transfer in question was of all the properties of the old company depends upon the.legal conclusion to be drawn from certain evidentiary facts relating to the prior organization of another corporation and the transfer to it of all the property of the old company which was not to be transferred to the Mill Creek Company. These facts, which were found by the Board and are undisputed, are as follows: At the time that the transfer to the Mill Creek Company was decided upon, the officers of the old company caused another corporation to be organized under the name of the Elkhorn Coal Company, which we shall refer to hereafter as the new company, and on December 18, 1925, transferred to it, in exchange for 6,100 shares of its stock, all of the property of the old company which was not to be transferred to the Mill Creek Company except certain accounts, which were transferred to the new company on December 28, 1931, in consideration of its assuming the liabilities of the old company. The 6,100 shares of stock in the new company were promptly distributed by the old company as a dividend to its stockholders. This left the old company owning only the property which was to be transferred to the Mill Creek Company under the plan and which was transferred to that company on December 31st, as mentioned in the preceding paragraph. Following that transfer and the receipt by the old company of the 1,000 shares of the stock of the Mill Creek Company pursuant thereto, the new company proceeded to place itself in the same position relative to the stockholders of the old company that the old company had occupied, and then to wind up its affairs. It accomplished that result in the following manner: On January 22, 1926, it exchanged 1,440 shares of its capital stock for the 7,540 shares of the outstanding capital stock of the old company, making the exchange with the stockholders of that company. This gave those who had been stockholders in the old company the same interest in the new company that they had had in the old, and gave to the new company the ownership of all of the stock in the old. The 1,000 shares of stock received from the Mill Creek Company were then transferred to the new company and the old company was dissolved. No business whatever was done by the old company after the transfer of assets to the Mill Creek Company on December 31st; and no reason appears for the organization (of the new company except to provide a transferee to take over and hold the assets which were not to be transferred to the Mill Creek Company so that the transfer to that company when made would be a transfer of all the assets of the old company.
  The Board was of opinion that all of these transactions were carried through pursuant to prearranged plan, saying: “We do not doubt that before a single step was taken a plan had been formulated for regrouping the corporate assets”; and “The stipulated facts justify the inference that one of the motives which the stockholders of Elkhorn had in organizing the new corporation and causing the three corporations to adopt the several steps or plans of reorganization which were adopted and carried out, was to make the transfer of the mining properties from Elkhorn to Mill Creek without resulting tax liability to Elkhorn or to themselves.” The Board thought, however, with five members dissenting, that because the transfers from the old company to the new were genuine and were separate and distinct from the transfer to the Mill Creek Company, the latter must be treated as a transfer of substantially all of the properties of the corporation within the meaning of the reorganization statute, summing up its conclusions as follows: “In our-opinion, the facts show affirmatively that the transfer to Mill Creek was completely separate and distinct from the earlier transfer by Elkhorn to the new corporation. The transfer made on December 18 was complete within itself, regardless of what Elkhorn planned to do later, or did subsequently do. It was not a sham or a device intended to obscure the character'of the transaction of December 31. The stipulated facts do not suggest other than a bona fide business move. The transfer made on December 31 was also complete within itself, and was made for reasons germane to the business of both corporations. This transfer falls within the terms of clause (A) of section 203(h) (1), whether or not Elkhorn was dissolved.”
  While we are bound by the Board’s findings of evidentiary facts, we are not bound by the foregoing conclusion set forth in the opinion and embodying a mixed question of law and fact. As said by the Supreme Court in the recent case of Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 57 S.Ct. 569, 574, 81 L.Ed. 755: “The ultimate finding is a conclusion of law or at least a determination of a mixed question of law and fact. It is to be distinguished from the findings of primary, evidentiary, or circumstantial facts. It is subject to judicial review and, on such review, the court may substitute its judgment for that of the Board.”
  A careful consideration of the evidentiary facts discloses no purpose which could have been served by the creation of the new company and the transfer of the assets to it, except to strip the old company of all of its properties which were not to be transferred to the Mill Creek Company, in anticipation of that transfer. The creation of the new company and its acquisition of the assets of the old was not a corporate reorganization, therefore, within the meaning of the statute or within any fair meaning of the term “reorganization.” It did not involve any real transfer of assets by the business enterprise or any rearranging of corporate structure, but at most a mere shifting of charters, having no apparent purpose except the avoidance of taxes on the transfer to the Mill Creek Company which was in contemplation. To use in part the language of the Supreme Court in Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355, it was1 “simply an operation having no business or corporate purpose — a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business,” but to give to the intended transfer to the Mill Creek Company the. appearance of a transfer of all the corporate assets so as to bring it within the nonrecognition provision of section 203(h) (1) (A).
  Under such circumstances we think that the decision in Gregory v. Helvering, supra, is controlling. In that case, for the purpose of avoiding taxes on a liquidating dividend of shares of stock held by a corporation, a subsidiary was organized within the terms of the reorganization statute and the shares were transferred to it. The' stock of the subsidiary was then delivered to the sole stockholder of the original corporation and shortly thereafter the subsidiary was dissolved and the shares which had been transferred to it were delivered to the stockholder. The court held that although the organization of the subsidiary came within the .letter of the reorganization statute, such corporate manipulation would be ignored when it fulfilled no proper corporate function and was not in reality a reorganization within the meaning of the statute. The court said: “In these circumstances, the facts speak for themselves and are susceptible of but one interpretation. The whole undertaking, though conducted 'according to the terms of subdivision (B), was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else. The rule .which excludes from consideration the motive of tax avoidance is not pertinent to the situation, because the transaction upon its face lies outside the plain intent of the statute. To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.”
  We do not see how that case can be distinguished from this. If the property which was to be transferred to Mill Creek had been transferred to a new company created for the purpose and had been by that company transferred to Mill Creek, no one would contend that there was a distinction ; and certainly there is no difference in principle between creating a subsidiary to take and convey the property to the intended transferee and creating' a subsidiary to take over the other assets and having the old company make the transfer. In either case, the apparent reorganization is a mere artifice; and it can make no difference which of the affiliated corporations makes the transfer of assets which it is desired to bring within the nonrecognition provisions of the statute.
  It is suggested in the opinion of the Board that the case before us is analogous to that which would have been presented if the old company, prior to the transfer to Mill Creek, had distributed to its stockholders all of the assets except those destined for such transfer; but the distinction is obvious. In the case supposed, the business enterprise would have definitely divested itself of the property distributed. Here it did not divest itself of the property at all, but merely made certain changes in the legal papers under which it enjoyed corporate existence. No rule is better settled than that in tax matters we must look to substance and not to form; and no one who looks to substance can see in the mere change of charters, which is all that we have here, any reason for permitting a, transfer of a part of the corporate assets to escape the taxation to which it is subject under the statute.
  Congress has seen fit. to grant nonrecognition of profit in sale or exchange of assets only under certain conditions, one of which is that one corporation shall transfer “substantially all” of its properties for stock in another. If nonrecognition of profit can be secured by the plan adopted in this case, the exemption is broadened to cover all transfers of assets for stock, whether “substantially all” or not, if only the transferor will go to the slight trouble and expense of getting a new charter for his corporation and making the transfer of assets to the new corporation thus created in such way as to leave in the old only the assets to be transferred at the time the transfer is to be made. We do not think the statutory exemption may be thus broadened by such an artifice.
  Having reached this conclusion, it is unnecessary to decide whether the unity of the plan under which the transfer was made brings it, without a unifying contract, within the principles laid down in Starr v. Commissioner (C.C.A.4th) 82 F.(2d) 964, 968, wherein we said: “Where transfers are made pursuant to such a plan of reorganization, they are ordinarily parts of one transaction and should be so treated in application of the well-settled principle that, in applying income tax laws, the substance, and not the form, of the transaction shall control. First Seattle D. H. Nat. Bank v. Commissioner (C.C.A.9th) 77 F.(2d) 45; Prairie Oil & Gas Co. v. Motter (C.C.A.10th) 66 F.(2d) 309; Howard v. Commissioner (C.C.A.6th) 56 F.(2d) 781; American Security & Trust Co. v. Tait (D.C.) 5 F.Supp. 337. This is demanded also by the principle, equally well settled, that a single transaction may not be broken up into various elements to avoid a tax. Ahles Realty Corporation v. Commissioner (C.C.A.2d) 71 F.(2d) 150, 151; West Texas Refining & Development Co. v. Commissioner (C.C.A.10th) 68 F.(2d) 77, 79, 80; Prairie Oil & Gas Co. v. Motter, supra (C.C.A.10th) 66 F.(2d) 309, 311; Tulsa Tribune Co. v. Commissioner (C.C.A.10th) 58 F.(2d) 937.”
  For the reasons stated, the decision of the Board will be reversed, and the cause will be remanded to it for further proceedings in accordance with this opinion.
  Reversed.