Mr. John E. Hughes, of Chicago, Ill., for petitioner.
Messrs. Robert H. Jackson, Atty. Gen., and Richard H. Demuth, of Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
Because of a previously-existing deficit, petitioner corporation was prohibited by state law1 from distributing as dividends its profits earned in 1936. Notwithstanding this state prohibition, the Commissioner held respondent liable under the 1936 Revenue Act2 for surtax on undistributed profits. The Board of Tax Appeals sustained [311 U.S. 54, 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, 311 U.S. 46 , 61 S.Ct. 109, this day decided, and on the authority of that case the decision below is
[ Footnote 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) section 4543.
[ Footnote 2 ] 49 Stat. 1648, 1655, 26 U.S.C.A.Int.Rev.Acts p. 823.
[ Footnote 3 ] 38 B.T.A. 1355.
[ Footnote 4 ] 8 Cir., 105 F.2d 740.
[ Footnote 5 ] Northwest Steel Rolling Mills v. Commissioner, 110 F.2d 286.