concurring: It is easy to sympathize with a certain reluctance to rely here specifically on section 45, I.R.C. 1939. But it seems to me that respondent did here precisely what he did in Advance Machinery Exch. v. Commissioner, (C.A. 2, 1952) 196 F. 2d 1006, and that that case is a direct authority supporting the present conclusion. There, the court said (p. 1008) :
We need not decide whether what the Commissioner did is sustainable under § 22(a), I.R.C. alone * * * since we think §45 is applicable to this situation despite the petitioner’s contention that what the Commissioner has done amounts to a consolidation of the income of the various entities * * *
There follows an elaborate discussion of the relationship between ^section 45 and the consolidated return provision, with the conclusion that (p. 1009) : •
[T]he purpose of §45 is to prevent tax evasion by any arbitrary shifting of gross income among businesses owned or controlled by the same interests. * * * There is no exception, nor any reason for excepting, from this purpose the case where such arbitrary allocation of income is among affiliated corporations who could, under § 141, consolidate their respective incomes. Furthermore, subdivision (i) of §141 contains this language: “For allocation of income and deductions of related trades or businesses, see section 45.” * * *
Commissioner v. Chelsea Products, (C.A. 3, 1952) 197 F. 2d 620, affirming 16 T.C. 840, which apparently held to the contrary, can be distinguished, at least, because of the conclusion of the court on appeal that “[t]he [deficiency] notices contain no indications whatsoever that the Commissioner made his determination under Section 45.” And the statement there (footnote 6, p. 624) that the “observation” in Advance Machinery Exch. v. Commissioner, supra, “with respect to § 45” was considered “to be essentially dicta [sic] ” is puzzling to say the least, the only question decided in Advance Machinery being the applicability of section 45, and the court there having expressly refrained from considering “§ 22(a), I.E.C. alone,”
Since, however, I regard Commissioner v. Chelsea Products, supra, as having been erroneously decided, and since the present result seems to me clearly authorized by the decision of another circuit1 in Advance Machinery Exch. v. Commissioner, supra, I concur in the result.
Murdock, J: I have no comment on the Chelsea case but otherwise agree with this concurring opinion. HaRRON, J., agrees with this concurring opinion.To complicate matters further, Chief Judge Biggs of the Third Circuit apparently sat with the Second Circuit when it decided Advance Machinery Exch. v. Commissioner, (C.A. 2, 1952) 196 F. 2d 1006.