1933 BTA LEXIS 1321">*1321 Petitioner, the parent corporation of an affiliated group, changed its accounting period from a calendar to a fiscal year ended June 30, and the affiliated group thereafter filed a consolidated return for the taxable year 1929. Held, such consolidated return was limited under article 14, Regulations 75 to the period January 1, 1929, to June 30, 1929, and petitioner's subsidiary whose fiscal year ended October 30, 1928, was required to file a return for the period November 1, 1928, to December 31, 1928, which period constituted its "third taxable year" in the application of a net loss sustained by it in 1927.
27 B.T.A. 548">*548 This proceeding arises on account of the determination by the Commissioner of a deficiency in petitioner's income tax for the period January 1 to June 30, 1929, in the amount of $1,231.04. It is alleged that the Commissioner erred in refusing to allow as a deduction a part of the net loss sustained by its subsidiary corporation, The Pioneer Asphalt Company, in 1927.
FINDINGS OF FACT.
The petitioner is an Illinois corporation, having1933 BTA LEXIS 1321">*1322 its principal office at 365 East Illinois Street, Chicago, Illinois.
The facts are stipulated as follows:
Prior to October 31, 1928, the petitioner owned 99 1/2% of the capital stock of the Pioneer Asphalt Company, but prior to the return filed for the period ending June 30, 1929, no consolidated return was filed, the Pioneer Asphalt Company having filed a separate return for the fiscal year ended October 31, 1928, and the petitioner having filed a separate return for the calendar year ending December 31, 1928.
Upon the request of the petitioner, dated May 28, 1929, permission was granted by the respondent for the said petitioner to change its taxable year from the calendar year to the fiscal year ended June 30, and the permission so granted by the respondent contained the provision that in order to effect the change the petitioner would be required to file a return on or before Sept. 15, 1929, covering the period Jan. 1, 1929 to June 30, 1929.
For the period ending June 30, 1929, the petitioner; Wishnick-Tumpeer, Inc., New York; and the Pioneer Asphalt Company filed a consolidated return, which return included net income of the petitioner for the six months period January1933 BTA LEXIS 1321">*1323 1 to June 30, 1929 of $30,462.01; net income of Wishnick-Tumpeer, Inc., New York, for the period January 1 to June 30, 1929 of $20,433.10; and income of the Pioneer Asphalt Company for the eight months period November 1, 1928 to June 30, 1929, $4,285.86, the said $4,285.86 being arrived at by deducting from income of the Pioneer Asphalt Company for said period of $20,636.20, a statutory net loss for the fiscal year ended October 31, 1927 of 27 B.T.A. 548">*549 $16,350.34, no part of which statutory net loss had been used to offset the income for the fiscal year ended October 31, 1928, the net income for the said fiscal year ended October 31, 1928 having been completely offset by a statutory net loss sustained during the fiscal year ended October 31, 1926.
In computing the taxable net income of the Pioneer Asphalt Company included in the consolidated net income of the affiliated group upon which the deficiency has been determined the income for the two months November 1 to December 31, 1928, has been determined to be one-fourth of the income for the eight months period November 1, 1928 to June 30, 1929, and the amount so determined, $5,159.05, has been offset by an equal amount of the statutory1933 BTA LEXIS 1321">*1324 net loss sustained in 1927. The remainder of the net income of the Pioneer Asphalt Company, $15,477.15, has been included by the respondent in the income of the consolidated group for the period January 1, 1929 to June 30, 1929, and no portion of the net loss for the year ended October 31, 1927 has been allowed as a deduction from the said income.
The effect of the above adjustment is to disallow the sum of $11,191.09, the remainder of the statutory net loss for 1927 as a deduction in computing the net income of the Pioneer Asphalt Company and of the consolidated group for the period ended June 30, 1929.
OPINION.
GOODRICH: The sole question presented for our decision is whether the Pioneer Asphalt Company is entitled to deduct from its income for the period November 1, 1928, to June 30, 1929, a net loss sustained by it in 1927.
In computing the taxable net income of the consolidated group for the taxable year 1929 the respondent has included therein the net income of the Pioneer Asphalt Company for the period January 1 to June 30, 1929, and has refused to deduct from its income for such period any part of the net loss sustained by it in 1927, on the ground that a return1933 BTA LEXIS 1321">*1325 was required of the Pioneer Asphalt Company for the period November 1 to December 31, 1928, which period constituted the "third taxable year" in the application of the net loss sustained in 1927. We agree with this action.
Under section 141(a) of the Revenue Act of 1928 the petitioner and its subsidiaries had the right to file a consolidated return and the filing of such return constituted an election and a consent to comply with the regulations of the Commissioner under section 141(b). The petitioner here is the parent corporation, and before filing its return for the year 1929, it asked for and obtained permission to change its accounting period from a calendar year to a fiscal year ending June 30. This permission dated June 11, 1929, contained the provision that in order to effect the change the petitioner would be required to file a return covering the period January 1, 1929, to June 30, 1929. Thereafter, on September 16, 1929, the Pioneer Asphalt Company authorized and consented to the filing of a consolidated return on its behalf for the taxable year 1929. In 27 B.T.A. 548">*550 this consent it specifically agreed "to be bound by the provisions of regulations 75 prescribed prior1933 BTA LEXIS 1321">*1326 to the making of this return." It is, therefore, apparent that at the time of filing a consolidated return for itself and subsidiaries for 1929 the petitioner knew that its return for the taxable year 1929 was limited to the period January 1 to June 30, 1929. It also knew that in electing to file a consolidated return both it and its subsidiaries consented to be bound by the Commissioner's Regulations 75, prescribed prior to the making of such return. Article 14 of Regulations 75 was so prescribed. It provides as follows:
The taxable year of the parent corporation shall be considered as the taxable year of an affiliated group which makes a consolidated return, and the consolidated net income must be computed on the basis of the taxable year of the parent corporation.
We think the consolidated return of petitioner and its affiliated corporations was limited to the period January 1 to June 30, 1929. There was, therefore, a return required of the Pioneer Asphalt Company for the period November 1, 1928, to December 31, 1928. This period constituted the "third taxable year" in the application of the net loss sustained by that company in 1927. Cf. 1933 BTA LEXIS 1321">*1327 ; ; .
The determination of the respondent is sustained.
Judgment will be entered for the respondent.