dissenting: This case is decided on the authority of the two cases cited in the prevailing opinion, viz, B. B. Bathing Park, Inc., 17 B. T. A. 748, and Apartment Corporation, 17 B. T. A. 876. Those two cases are applicable and under ordinary circumstances I would feel myself bound by the decisions of the Board in those cases. However, I voted against the decisions in those two cases, had my negative vote recorded, and reserved the right to set out in detail, in the Southern Power Co. case, the grounds upon which I based my objections in all three cases.
The applicable part of section 239 of the Revenue Act of 1921 prescribes “ That every corporation subject to taxation under this title, and every personal service corporation shall make a return stating specifically the items of its gross income and the deductions and credits allowed by this title.”
Section 240 of the same Act prescribes “ That corporations which are affiliated within the meaning of this section may, for any taxable year beginning on or after January 1, 1922, make separate returns, or under regulations prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income for the purpose of this title, in which case the taxes thereunder shall be computed and determined upon the basis of such return. If *966return is made on either of such bases, all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner.”
In this case it seems not to be controverted that for the years 1922 and 1923 the Wateree Electric Co., owning nearly all the stock of the Southern Power Co., was affiliated with that company and, hence, those two companies had the statutory right to make consolidated return. However, the Wateree Electric Co. elected to make separate returns. The Southern Power Co. owned all the stock of the Catawba Manufacturing & Electric Power Co. and, hence, those two companies (eliminating for the moment the presence of the Wateree Company) had the statutory right to make either separate returns or a consolidated return. The Commissioner contends that, if one of a group of three or more corporations elects to make a separate return, all the group shall, each, make a separate return. 1 am unable to find any statutory authority for such a holding. The manner of making returns has been prescribed by Congress and, hence, it is strictly a statutory procedure and no court or administrative body may add to or take from the rights and duties so prescribed by Congress. The statute nowhere indicates that any one of a group of corporations shall exercise the right of election for all in the group. No such word as “ parent corporation ” or the “ controlling corporation ” is found in the statute. It is true that in defining affiliated corporations, the statute prescribes that two or more corporations shall be deemed to be affiliated (1) if one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other, or others, or (2) if substantially all the stock of tw,o or more corporations is owned or controlled by the same interests.
In this case it is certain that no one corporation owned practically all the stock of the other two corporations. The Wateree Company owned the stock of the Southern Power Co., and the Southern Power Co. owned the stock of the Catawba Manufacturing & Electric Power Co. The Wateree Co. owned none of the stock of the Ca-. tawba Manufacturing & Electric Power Co. Did. the Wateree Co. control the stock of the Catawba Co.? There is no evidence in the record that it did; only through its control of the stock of the Southern Power Co. It may be conceded that the inference that it did control that stock is well grounded, but such does not follow by operation of law; neither is it a conclusive presumption.
But we may waive the question of whether or not all three of the corporations were affiliated, as that question was not controverted, but the question still remains whether or not, if one of a group of three or more corporations elects to make a separate return, all *967the group must make separate returns. If that question be answered in the affirmative, as it was answered by the Commissioner and as it is answered in the prevailing opinion, then which corporation is authorized to make the election? It has been argued that as the ‘‘ parent company ” elects, all the group must act. As has been pointed out, the statute does not classify the members of an affiliated group of corporations as “ parent ” and “ children,” or by any other names, and does not prescribe that in making such election, that any one shall dominate.
The statute prescribes that each and every corporation shall make a return, that is, the statute not only gives it the right to make a return for itself, but prescribes that it shall do so. After that is done, the statute prescribes that affiliated corporations may make a consolidated return of net income. The making of a consolidated return of net income is optional. The corporations may make it, or they may rest on their individual returns.
Authority for a holding that because one member of a group of affiliated corporations chooses to make a separate return, the other members who are undeniably affiliated as among themselves, shall make, against their will, separate returns, in my judgment requires something to be read into the statute that is not contained in the plain English of the words used. I am not willing to assume such a responsibility.