Vanderbilt Law Review


Paul I. Hartman

First Page



Five cases involving a construction of sections 67-26021 and 67-26092 of the income tax statute (Hall Income Tax) were consolidated for one opinion in the Gallagher case. Two of the cases involved the redemption of shares by the issuing corporations; the other three involved the liquidation of corporations, with a surrender of shares and distributions of assets. The Commissioner, in all of these situations, imposed an income tax on the amount constituting the difference between the original investments in the shares and the sum received in liquidation or redemption. The Commissioner argues that although these amounts may not have been dividends in the strict sense, nevertheless they were made up of earned surplus as that term was defined in Lawrence v. McFarland; and under section 67-2609 of the statute" earned surplus shall not be considered as capital, and shall be taxed as income when and in whatever manner it may be distributed. ..."