concurring: In making the determination now in issue respondent “decreased” the deduction for mortgage interest as “in accordance with the provisions of the Internal Revenue Code.” A provision of the code which seems to conform exactly to the present facts and would by its express terms warrant the Commissioner’s action is section 45:
SEC. 45. ALLOCATION OP INCOME AND DEDUCTIONS.
In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Commissioner is authorized to distribute, apportion, or allocate gross income or deductions between or among such 'organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.
The fact that there is no reference to that section by number in the notice of deficiency where, as here, “it may be assumed that the adjustment was made in order that the real income of the petitioned might be clearly reflected,” is not necessarily an impediment to its application by us. Gordon Can Co., 29 B. T. A. 272. There can be no question of petitioner’s awareness of its relevance to the present proceeding as is indicated by the reliance in its brief upon a case where the application of that section was the basic issue. Seminole Flavor Co., 4 T. C. 1215.
Smith and Leech, JJ., concur in the above.