these third parties, such will in fact be the result. It merely alludes thereto as a theoretic possibility. Surely no such mere theoretic possibility, which Montana could easily establish, were it a fact, can suffice to prove that the Regulation, accepted by both parties as binding here, does not mean here what it means in all other cases.
Finally, Montana, Gas Company, and their holding company, American, must be presumed to know the law, even if they did not in fact, which seems doubtful. They decided to take advantage for their own benefit of this tax-free reorganization, which Congress permitted. Even had this reorganization worked out in other aspects to their disadvantage, it was they who made the decision in the light of the law. 'The tail goes with the hide'. They could not complain now, even were a tax disadvantage to counterbalance the advantage, which they chose to take. Founders General Corp. v. Hoey, 1937, 300 U.S. 268, 275, 57 S. Ct. 457, 81 L. Ed. 639; Old Mission Portland Cement Co. v. Helvering, 1934, 293 U.S. 289, 293, 55 S. Ct. 158, 79 L. Ed. 367; Healy v. Commissioner, 1953, 345 U.S. 278, 285, 73 S. Ct. 671, 97 L. Ed. 1007. And see Zonolite v. U.S., 7 Cir., 1954, 211 F.2d 508.
Nor is the Sacramento case, Sacramento Medico Dental Building Co. v. Commissioner of Internal Revenue, 1942, 47 B.T.A. 315 to the contrary. The situation dealt with here did not there arise in fact. Not only were the words of the Board in that regard dictum, but the Board did not even attempt to state any principle of law, in that regard, even as dictum. It merely indicated that on the non-existent case there suggested by the taxpayer, the taxpayer might have an argument -- an argument now found fallacious.
Defendant, while admitting the jurisdiction of this Court, as to Montana's first and second causes of action, denies its jurisdiction as to its third cause of action, where it seeks recovery of the 1941 excess profits taxes, jurisdiction being based upon 28 U.S.C.A. § 1346(a)(1). But in view of the above decision on the merits, this question becomes academic, and will not be dealt with.
In short, the Collector has followed the settled law in applying same to the facts. If there by any tax difference, there is no inequity, since there is good reason for it. And this alleged difference, if it exists, does not affect Montana, but Gas Company and perhaps American. Furthermore, it arises, if at all, only because Montana joined with Gas Company and American in choosing the very course, which caused it, for their own advantage otherwise. Thus Montana cannot justly complain, and in any event, this tax difference is not so unreasonable and glaring as to show that the Regulations, which both sides accept as binding, do not mean here what they mean in all other cases.
The facts herein stated and the conclusions of law herein expressed shall be considered the findings of fact and the conclusions of law required by Fed.Rules Civ.Proc. rule 52, 28 U.S.C.A.
Unless Montana, within thirty days, shall apply to establish by further evidence the fair market value of the gas properties, at the time of their transfer to it by Gas Company, judgment will go for defendant.