*2163 The evidence failing to show that the "same interests" own as much as 95 per cent of the stock of two corporations, for which affiliation is asserted by the petitioner, held such corporations are not affiliated and the determination of Commissioner approved.
*1220 The Commissioner determined a deficiency of $203.28 income tax for the fiscal year ended September 30, 1927.
The petitioner contends, contrary to the determination of the Commissioner, that it is affiliated with the Weisbrod & Hess Brewing Co. and has the right to return its income on a consolidated basis with that corporation.
The case is submitted on the pleadings, the Commissioner in his answer having admitted all the averments of fact in the petition, only denying the errors assigned.
FINDINGS OF FACT.
The petitioner is a Pennsylvania corporation, organized for the purpose of dealing in real estate, with its principal office in Philadelphia, Pa.
Gustave G. Roehm and Charles E. Roehm, brothers, each own 6 1/4 per cent of the stock of the petitioner.
William*2164 Weisbrod owns 12 1/2 per cent of the stock of the Weisbrod & Hess Brewing Co., a corporation.
The remainder of the stock of both corporations is owned by the same interests in the same proportions, namely by members of Weisbrod and Hess families.
OPINION.
LITTLETON: Section 240(d) of the Revenue Act of 1926 provides:
For the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns at least 95 per centum of the stock of the other or others, or (2) if at least 95 per centum of the stock of two or more corporations is owned by the same interests. As used in this subdivision the term "stock" does not include nonvoting stock which is limited and preferred as to dividends. This subdivision shall be applicable to the determination of affiliation for the taxable year 1926 and each taxable year thereafter.
*1221 The evidence shows that members of the Weisbrod and Hess families own in the same proportion 87 1/2 per cent of the stock of the petitioner and of the Weisbrod & Hess Brewing Co.
The evidence also shows that Gustave G. Roehm and Charles E. Roehm each own 6 1/4 per cent of the stock of the petitioner*2165 and that William Weisbrod owns 12 1/2 per cent of the stock of the Weisbrod & Hess Brewing Co. It further appears that Laura Roehm, the wife of Gustave G. Roehm, is the sister of William Weisbrod.
The foregoing is substantially all the evidence in the case and, in our opinion, is not sufficient to justify us in holding the Commissioner committed any error in his determination that the petitioner and the Weisbrod & Hess Brewing Co. are not affiliated corporations.
The brief and argument in behalf of the petitioner assume, as facts, matters which are not alleged as such in the petitioner nor admitted by the answer.
It does not appear from the averments of the petition and admissions in the answer, upon which the case is submitted, that the "same interests" own as much as 95 per cent of the stock of the two corporations. We, therefore, approve the determination of the Commissioner.
Judgment will be entered for the respondent.