*2661 1. The petitioner leased its railroad, the lessee agreeing to pay a stipulated net rental and any taxes imposed on such rental. Held, that income taxes paid on such rental by the lessee are income to the lessor for the year when such taxes become payable.
2. The amount of such tax borne by the Director General of Railroads pursuant to the Federal Control Act is not income to the petitioner.
*128 This proceeding involves income and profits taxes for 1921 of $7,693.91, and income tax for 1922 of $5,212.87. The errors asserted by the petitioner were:
(a) Denial of affiliation of petitioner with the New York, New Haven & Hartford Railroad Company.
(b) The addition to petitioner's net income in each year of the amount of the Federal income and profits taxes due from it for the same year but payable, under the terms of its lease to the New York, New Haven & Hartford Railroad Company, by the latter corporation.
(c) That the petitioner's invested capital for 1921 was erroneously reduced on account of Federal income taxes for the year 1920.
*2662 (d) That petitioner's invested capital for 1921 should be increased by the amount of accrued rent earned to and including December 31, 1920. The Commissioner confessed error on this point, and it was stipulated that petitioner's invested capital for 1921 should accordingly the increased by $3,833.33.
FINDINGS OF FACT.
The Holyoke & Westfield Railroad Co. was, during the years 1921 and 1922, a corporation existing under the laws of the Commonwealth of Massachusetts.
The New York, New Haven & Hartford Railroad Co. was during the years 1921 and 1922 a corporation existing under the laws of the Commonwealth of Massachusetts and the States of Rhode Island and Connecticut.
The taxpayer leased its property, franchises and rights to the New Haven & Northampton Co. on December 3, 1870, and amended that lease on May 4, 1878, and again on January 30, 1908. The lease as amended runs "forever," and is known as a "lease in perpetuity."
On May 14, 1887, the New Haven & Northampton Co. leased its property, franchises and rights, including all its rights under the lease as amended of the Holyoke & Westfield Railroad Co. referred to above, to the New York, New Haven & Hartford Railroad*2663 Co. for 99 years from April 1, 1887. From that date the Holyoke & Westfield Railroad was operated by the New York, New Haven & Hartford Railroad Co.
On October 26, 1910, the New Haven & Northampton Co. conveyed by deed all its franchises and property to the New York, New Haven & Hartford Railroad Co., as authorized by an act of Massachusetts approved April 3, 1906, ch. 237, and by an act of Connecticut approved June 29, 1905, Special Acts, p. 869.
*129 The New York, New Haven & Hartford Railroad Co. during the years 1921 and 1922 operated the Holyoke & Westfield Railroad Co. under the lease as amended at January 30, 1908. The terms of said lease, as amended, were, so far as is here material, as follows:
First: In lieu of the rental payments provided for in said two instruments, The New Haven and Northampton Company shall hereafter pay as rent for all the leased property, including the railroad and all of the real estate of the Holyoke and Westfield Railroad Company Forty-six Thousand Dollars per annum, to be paid in equal quarterly payments of Eleven Thousand Five Hundred Dollars each, on the first days of June, September, December and March hereafter.
Second: The*2664 New Haven and Northampton Company may make, at its own expense, such lawful changes, alterations, improvements, repairs, renewals and additions in or to the leased railroad as it shall from time to time deem beneficial to the leased railroad, and shall at its own expense make all changes, alterations, improvements, repairs, renewals and additions in or to the leased railroad that may by law be obligatory upon the Holyoke and Westfield Railroad Company during the continuance of said lease, and shall save the Holyoke and Westfield Railroad Company harmless from all suits, costs, damages and expenses by reason of any change, alteration, addition, repair, renewal or improvement so to be made. For the purpose of such changes, alterations, improvements, additions, repairs or renewals, The New Haven and Northampton Company may from time to time move, remove, discontinue, abandon, exchange or sell any parts or portions of the leased property which shall no longer be necessary for the use of said railroad; provided, however, that all of the property acquired by such exchange shall become a part of the leased railroad, and that all extensions, alterations, additions and improvements to said*2665 leased railroad made in accordance with the terms of this lease shall become a part of the demised premises and as such be delivered up to the lessor upon the termination of this lease; and provided further that no changes, alterations, improvements, additions, repairs or renewals involving the moving, removing, discontinuing, abandoning, exchanging or selling any parts or portions of the leased railroad shall be made by the lessee uniess in its opinion in good faith entertained they shall be advantageous for the leased railroad and do not impair the terminal facilities of the leased railroad in the city of Holyoke, or impair or diminish the capacity or efficiency of said railroad for the purposes of its use; and provided further, that no changes or alterations shall involve the discontinuance or abandonment of any part of the branch railroads described in the instrument dated the 4th day of May, 1878, hereinbefore mentioned, except for the purpose of improving said branch railroad as a whole and of better adapting it to its business, including the handling of freight of manufacturing establishments on or near the line. The Holyoke and Westfield Railroad Company, upon the written*2666 request of The New Haven and Northampton Company, will join with the latter in any deed, conveyance or instrument which shall facilitate any such exchange or sale. The Holyoke and Westfield Railroad Company shall, from time to time, if so requested by The New Haven and Northampton Company, proceed to take, appropriate and condemn in due form of law such real estate as the convenient maintenance or operation of the leased railroad or as the orders of any public, governmental or municipal authority may render necessary or desirable, the latter Company, however, paying all expense incurred therefor, including the iegal expenses. The New Haven and Northampton Company may use the name of *130 the Holyoke and Westfield Railroad Company in prosecuting or defending any suits or proceedings so far as The New Haven and Northampton Company may deem necessary for the use, quiet enjoyment or protection of the leased railroad, or to protect itself against unlawful exactions or demands by or under any public authority, but at the sole expense of The New Haven ad Northampton Company; and if there shall be any action or proceeding against the Holyoke and Westfield Railroad Company growing*2667 out of its ownership of the leased premises (unless such action or proceeding is based in whole or in part upon some act or omission of the lessor not requested by the lessee) The New Haven and Northampton Company shall, upon timely request by the Holyoke and Westfield Railroad Company, defend at its own expense such actions or proceeding, in the name and on behalf of the Holyoke and Westfield Railroad Company.
Third: The New Haven and Northampton Company shall from time to time hereafter during the continuance of this lease pay all taxes, water rents, rates, charges, license fees and assessments, ordinary and extraordinary of every nature and description, which may be lawfully imposed or assessed in any way upon either The New Haven and Northampton Company or the Hoiyoke and Westfield Railroad Company with reference to the railroad that shall be subject to this lease, the capital stock of the Holyoke and Westfield Railroad Company, its indebtedness, contracts, rights, privileges, franchises and revenues or said reserved rental or the disbursement thereof or its right to do business or be a corporation, said payments to be made to the authority or treasurer entitled by law to receive*2668 the same, whether Federal, State or Municipal. If the legality or validity of any such taxes, water rents, rates, charges, license fees or assessments shall be disputed by The New Haven and Northampton Company, said Company shall at its own cost and expense defend against the same. The Holyoke and Westfield Railroad Company shall, before making any return or report to any authorities for the purposes of taxation, consult with The New Haven and Northampton Company regarding the same, and shall make such return or report in the form required by The New Haven and Northampton Company, in so far as it is lawful so to do. The Holyoke and Westfield Railroad Company shall also at the time of making any such return or report furnish an exact copy thereof to The New Haven and Northampton Company.
During the years 1921 and 1922, there were outstanding 2,600 shares of capital stock of the petitioner, of which 200 shares were owned by the New York, New Haven & Hartford Railroad Co.
The income of the petitioner for 1921 and 1922 was reported with that of the New York, New Haven & Hartford Railroad Co. in consolidated returns filed by the latter for those years.
The Commissioner added*2669 to the taxable income of the petitioner for 1921 the amount of $6,011.65 as "Federal income and profits taxes payable by lessee."
The Commissioner added to the taxable income of the petitioner for 1922 the amount of $4,633.66 as "Federal income and profits taxes payable by lessee."
The income and profits tax paid in 1921 for the year 1920 on account of the income of the petitioner was $7,347.98, of which amount 29/30 were paid by the New York, New Haven & Hartford Railroad Company, and 1/30 was paid by the Director General of Railroads.
*131 No income or profits tax for the year 1921 was paid in the year 1922 by the New York, New Haven & Hartford Railroad Co. for the petitioner.
The Commissioner, in computing the deficiency under review, reduced the petitioner's invested capital for the year 1921 by $3,105.28, representing .42260274 of $7,347.98, asserted to be the correct tax liability of the petitioner for 1920 on the ground that "Federal income and profits taxes for the year 1920 may be included in invested capital only until due and payable."
The books of the petitioner were kept and its returns made on the accrual basis.
OPINION.
PHILLIPS: Upon the question*2670 of affiliation, petitioner has shown only that 200 of the 2,600 shares of its outstanding capital stock were owned by the New York, New Haven & Hartford Railroad Co., and that the latter company had a lease upon the petitioner's property, which was, in terms, perpetual.
The statute provides that "For the purpose of this section two or more domestic 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 two or more corporations is owned or controlled by the same interests." There is nothing to indicate that the stockholders of the lessor corporation and those of the lessee corporation are "closely affiliated interests" or the "same interests." Normally the interests of a landlord and of his tenant are not the same, one being interested in the profits from the operation of the property and the other only in the rental he is to receive. Nor is there anything to indicate that the lessor controlled the stock of the lessee or that the lessee controlled the stock of the lessor. We have heretofore*2671 pointed out that what the statute requires is ownership or control of the stock, and that control of the property of a corporation by reason of a lease does not meet the provisions of the law. .
Under the terms of its lease the New York, New Haven & Hartford Railroad Co. was obligated to pay taxes upon the income of the petitioner. It is the contention of the petitioner that such payments are not income to it. We have heretofore had occasion to examine and discuss this question in the , where it was held that such payments constitute a part of the compensation for the property leased and are income under the authorities there cited. There we held further that under prior decisions of the Board such amounts are income in the *132 year in which such taxes become due and payable, and are not income in the year for which imposed. Furthermore, it would appear from the terms of the lease that the income taxes assessed during the taxable years in question, on the rental of the previous years, first became an obligation of the lessee in*2672 the years in question. As applied to the present case, taxes which became due and payable in 1921 and 1922 upon the "reserved rental" for 1920 and 1921 are income to the lessor for 1921 and 1922.
It appears that 29/30 of the tax for 1920 was paid in 1921 by the lessee and that the remaining 1/30 was borne by the Director General of Railroads under the provisions of Federal statutes under which he took over the control and operations of railroads. In the , we considered such legislation and its history and reached the conclusion that the intention was to take from the railroads any liability for the portion of the tax to be borne by the Director General and there determined that such amount was neither a tax imposed upon the railroad nor income to it. That decision is controlling in this case. The income of the petitioner for the taxable years should be recomputed in accordance with the principles followed in the cases cited.
In computing the deficiency the Commissioner reduced invested capital by the amount of the tax for the preceding year, prorated from the date when each quarterly installment*2673 became due. This action appears to be in accordance with the provisions of section 1207 of the Revenue Act of 1926 and, except as adjustment of the amount may be necessary by reason of recomputation of the tax liability, the procedure followed by the Commissioner with respect to such deduction must be approved.
Decision will be entered on 15 days' notice, under Rule 50.
Considered by VAN FOSSAN.