Majority — Black J.
p. 54CRANE-JOHNSON COMPANY v. HELVERING, COMMISSIONER OF INTERNAL REVENUE. No. 8. Argued October 23, 1940. Decided November 12, 1940.
Mr. John E. Hughes for petitioner.
Mr. Richard H. Demuth, with whom Solicitor General Biddle, Assistant Attorney General Clark, and Mr. Sewall Key and Miss Helen R. Carloss were on the brief, for respondent.
By leave of Court, Mr. Thomas H. Remington filed a brief on behalf of Bastian Brothers Company, as amicus curiae, in support of petitioner.
delivered the opinion of the Court.
Because of a previously existing deficit, petitioner corporation was prohibited by state law[1] from distributing as dividends its profits earned in 1936. Notwithstanding this state prohibition, the Commissioner held respondent liable under the 1936 Revenue Act[2] for surtax on undistributed profits. The Board of Tax Appeals sustained
1 “The directors of corporations must not make dividends except from the surplus profits arising from the business thereof ...” N. D. Comp. Laws (Supp. 1925) § 4543.
2 49 Stat. 1648 , 1655.
p. 55
the Commissioner,[3] and the Circuit Court of Appeals affirmed.[4] On a similar state of facts the Court of Appeals for the Ninth Circuit held undistributed profits exempt from surtax.[5] We granted certiorari in both cases to resolve this conflict.[6] The legal questions here presented are in all respects the same as those presented in Helvering v. Northwest Steel Rolling Mills, ante, p. 46, and on the authority of that case the decision below is
Affirmed.
3 38 B. T. A. 1355 .
4 105 F. 2d 740 .
5 Northwest Steel Rolling Mills v. Commissioner, 110 F. 2d 286 .
6 309 U. S. 692 ; post, p. 629.