dissenting: Section 240 (a) of the Revenue Act of 1921 permits corporations which are affiliated to file consolidated returns or separate returns for 1922 at their option. If they filed a consolidated return for 1922 they were thereafter required to file a consolidated return for subsequent years, unless the Commissioner gave them authority to file separate returns. I can see no good reason for denying two affiliated companies out of a group of three or more which filed a consolidated return for 1922, the right to file a consolidated return for subsequent years. In many cases it undoubtedly is true that the officers of a consolidated group of corporations are in doubt as to whether one or more of the group are affiliated corporations within the meaning of section 240 (c). In such cases a consolidated return is filed for such corporations as are clearly affiliated. If they have filed a consolidated return for 1922, and their status is not changed for 1923, what good reason is there for permitting the Commissioner to determine that in 1923 a third corporation was affiliated with the two or more which filed a consolidated return for 1922, and that, since the third corporation was not made a member of the group in 1922, the two corporations unquestionably affiliated in 1923 and which filed a consolidated return for 1923, must file separate returns for 1923? In my opinion the statute was intended to give two or more corporations clearly affiliated the right to file a consolidated return for 1922 and to file consolidated returns for subsequent years, even though there was another corporation which might properly have been included in the affiliated group.
Littleton :I concur in the result reached in the prevailing opinion, and in the reasoning on which it is based to the extent that it holds that the action of the parent in filing a separate return is evidence of *752an election by the group to file separate returns, but I dissent in so far as the case might be said.to hold that the filing of a separate return by any member of an affiliated group is conclusive as to the entire group and would require that all members likewise file separate returns. My position is that whether or not an election has been exercised by the group is a question of fact, to be determined from all the surrounding circumstances incident to a particular case, and is not necessarily controlled by the action of a single corporation in filing a separate return. Here, we have the fact that the parent corporation owned all the stock of one subsidiary, which subsidiary in turn owned all the stock of the other member, and that the parent corporation filed a separate return, which action should generally be considered as expressive of the action of the controlling element in such an affiliated group, whereas the other corporations attempted to file a consolidated return. In addition, the Commissioner has found that the corporations elected to file separate returns, which determination is entitled to the weight of prima facie correctness. Accordingly, I am of the opinion that the prevailing opinion is correct in holding that the action of the Commissioner should be sustained.