*1305 1. Filing of separate return for the year 1924 by one member of affiliated group held to constitute an election under section 240, Revenue Act of 1924, even though when return was filed the Commissioner's regulations and rulings, which denied the right to affiliation, were later repudiated and affiliation was admitted. Permission to change basis not having been obtained, right to include income of such member in consolidated return denied.
2. Bond discount held deductible from income on prorata basis.
3. Total accrued capital-stock-tax liability for the year 1924 held deductible from income for that year.
*472 This proceeding involves the redetermination of petitioner's income-tax liability for the year 1924. The amount of $19,499.49 is in controversy, $5,513.28 thereof being asserted by respondent as a deficiency and $13,986.21 being claimed by petitioner as an overpayment. Petitioner alleges that respondent erred (1) in not computing and determining its income-tax*1306 liability upon the basis of a consolidation, affiliating petitioner with certain other corporations, including The Excella Corporation; (2) in increasing petitioner's income in the amount of $17,526.65, disallowed by respondent as an allowable deduction for alleged recapitalization expense; and (3) in increasing petitioner's income in the amount of $4,514, disallowed as an unallowable deduction of accrued capital-stock tax, and, at the same time, decreasing petitioner's income by only $3,247 as an additional deduction for capital-stock tax paid in the year 1924.
*473 FINDINGS OF FACT.
During the year 1924 The Pictorial Review Company of Georgia, The Pictorial Review Holding Company, The Publishers' Commercial Corporation, The Ninth Avenue and Thirty-fourth Street Corporation, The Excella Corporation, and this petitioner, The Pictorial Review Company, were duly organized and existing corporations. Petitioner owned all the issued and outstanding stock of each of the other above named corporations, except The Excella Corporation, of which petitioner owned 20.94 per centum of its issued stock. Of the balance, 76.05 per centum was owned by the various stockholders of petitioner, *1307 making a total of 96.99 per centum of the issued stock of The Excella Corporation owned by petitioner or petitioner's stockholders. Respondent now admits, and we so find, that during the year 1924, The Excella Corporation was affiliated with petitioner and with the corporations of which petitioner owned 100 per centum of the issued stock, within the meaning of section 240 of the Revenue Act of 1924.
On or about March 15, 1925, a tentative consolidated return for the year 1924 was filed by and on behalf of petitioner and all the above named affiliated companies, except The Excella Corporation, and on or about April 15, 1925, a final consolidated return for the same period was filed by and on behalf of the same corporations.
On or about March 15, 1925, a separate return for the year 1924 was filed by The Excella Corporation. On or about January 19, 1927, with the consent of The Excella Corporation, an amended consolidated return for the year 1924 was filed by and on behalf of all the aforesaid corporations, including The Excella Corporation.
Petitioner was engaged in the business of publishing a fashion magazine and manufacturing dress patterns. Previously the patterns it*1308 manufactured were unprinted. A competitor put on the market a pattern upon which directions for dressmaking therefrom were printed and which was superior to the unprinted pattern put out by petitioner. As a result, petitioner's business suffered a substantial loss and it was forced to manufacture a printed pattern. To avoid abandonment of its plant and facilities for the manufacture of the unprinted pattern, petitioner caused The Excella Corporation to be organized and continued to manufacture and sell the cheaper pattern as Excella Patterns. The Excella Corporation had no separate plant or place of business and no officers or employees who were not officers and employees of petitioner. Its entire business was carried on by petitioner as a department of its own business and it was availed of only because, for competitive reasons, petitioner did not wish to market the cheaper patterns under its own name. As a *474 practical matter it was impossible to accurately segregate the business and accounts of The Excella Corporation from those of petitioner.
The several returns for the year 1924 filed by petitioner and its various subsidiaries, including The Excella Corporation, *1309 were prepared by Jay A. Weber, who was secretary of each of these companies. At the time he prepared the returns, Weber believed that, because its business was little more than a department of petitioner's business, the income of The Excella Corporation should be included in a consolidated return with petitioner and its other affiliated corporations, but there existed in his mind a doubt whether, under the law, The Excella Corporation could be properly so affiliated. Affiliation was denied to this company by the Commissioner's regulations (article 633, Regulations 65) and the rulings of the Bureau of Internal Revenue in force at the time he prepared the returns and, therefore, having knowledge of the construction placed upon the statute by them, and wishing to be within the law, he prepared and caused to be filed a separate return on behalf of The Excella Corporation. Petitioner has not requested, nor received, permission from respondent to file a consolidated return for the year 1924 and to include therein income of The Excella Corporation.
For the year 1924, The Excella Corporation sustained a net loss in the amount of $137,558.40. For that year petitioner and its subsidiaries, *1310 except The Excella Corporation, disclosed by their books of account a consolidated net income of $388,210.84, which respondent has increased in the amount of $92,068.38. Said increase is accepted by petitioner as correct except as to those items here in issue.
During the year 1924 petitioner sold, at a discount of 10 1/2 per centum, an issue of bonds amounting to $3,250,000 and maturing fifteen years from and after April 1, 1924. Petitioner deducted from its income as the part of the discount applicable to the balance of the year 1924, $17,062.50. This amount, plus $464.15 representing bond premium, respondent disallowed as a deduction from income, on the ground that it represented reorganization expense.
During the year 1924 petitioner accrued on its books the sum of $4,514 as a reserve for Federal capital-stock taxes for the period ended June 30, 1925, and in 1924 paid the amount of $3,247. On or about October, 2, 1925, respondent determined that petitioner's liability for such taxes for that period was $4,158. Petitioner accepted respondent's determination and thereafter paid the difference of $911 and charged this amount against its reserve.
During the year 1924 petitioner*1311 kept its books of account and made its returns upon the accrual basis and for that year paid as *475 Federal income taxes on behalf of itself and its affiliated corporations the sum of $54,521.62.
OPINION.
GOODRICH: That the filing of a separate return by a taxpayer corporation constitutes a binding election under section240, Revenue Act of 1924, and that, in event of the filing of a separate return by one of a group of affiliated corporations, the liability of each member of the group must be determined upon a separate basis, is so firmly established by decisions of this Board and of the courts as to make citations here unnecessary. The election, once made, must be adhered to until permission to change the basis is requested and received of the Commissioner.
Petitioner contends that the filing of the separate return by The Excella Corporation for the year 1924 did not constitute an election - the exercise of the option permitted by the statute - for the reason that, in view of the construction placed upon the statute by the Commissioner as published in his regulations and rulings of his bureau, there existed grave doubt as to whether these corporations were affiliated*1312 and, therefore, it had no choice in the matter, but was forced to exclude from the consolidated return of the affiliated group the income of The Excella Corporation and to report it upon a separate return; citing Dexter Sulphite Pulp & Paper Co.,23 B.T.A. 227">23 B.T.A. 227; Torrington Co. of Connecticut,21 B.T.A. 1431">21 B.T.A. 1431, and Duplex Envelope Co.,21 B.T.A. 692">21 B.T.A. 692.
Respondent, although forced to repudiate his interpretation of the statute (T.D. 4100, C.B. VI-2, p. 129; G.C.M. 8982, C.B. X-1, p. 250) which was the sole cause for the filing of the separate return by The Excella Corporation, and now admitting that The Excella Corporation and petitioner were affiliated, nevertheless maintains that an election was made by the filing of that return, and, having been made, it is binding, and petitioner can not now include the income of The ExcellaCorporation for the year 1924 with its own since it has neither requested nor received permission to change the basis.
The cases relied upon by petitioner may be distinguished from the case at bar. In *1313 Duplex Envelope Co., supra, it was held that, because the company lay dormant during the year in controversy and filed no return, it was not faced with the necessity of making an election with respect to the basis upon which it should report its income until the succeeding year, when it chose to file upon the consolidated basis. In the Torrington case it was held that the return filed was a consolidated return. The facts concerning ownership of the several corporations were in doubt in Dexter Sulphite Pulp &*476 Paper Co., supra, and for that reason it was held that the filing of a separate return by one of the companies did not constitute an election for the group, since it was impossible at that time to determine the ownership of the companies, and, in turn, thus impossible to determine their affiliated status.
In the instant case, the facts concerning ownership were not in doubt. They were established and the only doubt which existed concerned the proper interpretation of the statute. Petitioner's argument that this doubt was sufficient to bar it exercising a free choice and prevent the filing of the separate return by The*1314 Excella Corporation from constituting an election under the statute, is fully answered in the decision in Radiant Glass Co. v. Burnet, 54 Fed.(2d) 718; affirming 19 B.T.A. 610">19 B.T.A. 610, a case arising under similar provisions of the Revenue Act of 1921, wherein the court said:
When appellant came to make out and file its return for the year 1922, it was entitled, if affiliated with the Times-Record Company, to file either a separate or consolidated return. The ruling of the Commissioner upon the Questionnaire in the prior year did not prevent or impair the free exercise of that right. Such a ruling does not have the force of law, nor are the courts bound by it. United States v. Hurst,2 F.(2d) 73. The satus of appellant and the Times-Record Company was to be finally determined by the courts, and not by the commissioner. Fidelity Nat. Bank v. Commissioner,39 F.(2d) 58, 61. Accordingly it was the right of appellant if affiliated to file a consolidated return if it so elected, and to appeal to the Board of Tax Appeals and to the courts for a judicial determination of its rights. * * *
*1315 The courts have uniformly held that the right of choice or election to file one or another sort of return is exercised by filing the return. Lucas v. Nat. Baseball Club,42 F.(2d) 984; Alameda Inv. Co. v. McLaughlin,33 F.(2d) 120; Levi Strauss Realty Co. v. United States,41 F.(2d) 55.
* * *
Moreover, it is held in Alameda Inv. Co. v. McLaughlin, supra, a case bearing some analogies with this, that a refusal of the Commissioner of Internal Revenue to permit corporations to file a consolidated return of income under Revenue Act of 1921, sec. 240(a), 42 Stat. 260, for an income year in which separate returns had theretofore been filed, is not a breach of a legal obligation and not subject to review, irrespective of the right of such corporations to have filed a consolidated return in the first instance. This conclusion, based upon the terms of section 240(a), supra, is manifestly correct, and is conclusive in this case.
The inequities of this case are apparent, but in applying the taxing statutes we can not always do equity, and we are constrained to hold that respondent did not err in refusing*1316 to determine petitioner's liability for the year 1924 upon a basis of consolidation, affiliating petitioner with The Excella Corporation.
With respect to the second issue, we have previously held that where bonds are issued by a corporation at a discount, the net amount of such discount is deductible and should be prorated over the life *477 of the bonds in determining net income. Chicago, Rock Island & Pacific Ry. Co.,13 B.T.A. 988">13 B.T.A. 988; Kansas City, southern Ry. Co.,16 B.T.A. 665">16 B.T.A. 665; Terminal Ry. Association of St. Louis,17 B.T.A. 1135">17 B.T.A. 1135. In accordance therewith the amount of $17,062.52, being the proper proportion of said discount applicable to the year 1924, should be deducted from petitioner's income for that year. We sustain respondent's action in disallowing as a deduction the sum of $464.13 which was charged off in excess of $17,062.52. Beyond the statement that this difference represents bond premiums of some sort, the record is silent with respect thereto.
We hold petitioner entitled to a total deduction from income for the year 1924 in the amount of $4,158 on account of Federal capitalstock tax accrued for the*1317 period ended June 30, 1925. That tax is a special excise tax, levied by section 700(a)(1) of the Revenue Act of 1924. Special taxes are payable in advance (see section 3173, U.S.R.S.) and so accrue, become due and are payable as of the first day of the taxable period - in this case July 1, 1924. The fact that the exact amount of petitioner's liability therefor was not determined until after the close of the taxable period is not controlling. The full amount of such liability is a proper deduction for the year 1924, petitioner keeping its accounts and making its returns on the accrual basis. See Borden Mfg. Co.,6 B.T.A. 276">6 B.T.A. 276; Kossar & Co.,16 B.T.A. 952">16 B.T.A. 952; Brooklyn Union Gas Co.,22 B.T.A. 507">22 B.T.A. 507.
Judgment will be entered under Rule 50.