(dissenting). I cannot agree with Judge Hinman. The tax is sought by him to be upheld under the provisions of paragraph 3 of subdivision 9 of section 211 of the Tax Law. That paragraph deals with the case of a corporation the stock of which is owned by another corporation and the business of which is the acquisition or disposition of the products of such other corporation in such a manner as to create a loss or improper net income. It provides' that the Commission may “ determine the amount which shall be deemed to be the entire net income of the business of such corporation for the calendar or fiscal year.” It further provides that “ in determining such entire net income the Tax Commission shall have regard to the fair profits which, but for any agreement, arrangement or understanding, might be or could have been obtained from dealing in such products, goods or commodities.” The Attorney-General, in his brief dealing with the tax base in this case, makes the following concession: “ These figures Were arrived at by taking such a proportion of the combined net income of the parent corporation and its subsidiaries as the total determinative assets of those corporations bore to the determinative assets of those corporations allocated to the State of New York.” Clearly, without a statute authorizing such a method, “ fair profits ” which might have been made by the relator, from the sale of the products of the parent corporation, under a fair contract with that corporation, could not in reason be predicated upon a comparison of the New York assets of the two corporations with their total assets. Such a method treats the assets of the two corporations as if they were the assets of a single consolidated corporation. It is opposed to the method prescribed which requires a comparison between the assets of the one corporation as contrasted with the assets of the other corporation if the contract between them had been “ fair.” No effort was made by the Tax Commission to determine what the profits of the relator would have been under a “ fair ” contract with the parent corporation. The tax, therefore, was not assessed upon a correct theory and should not stand.
*137Determination modified by reducing the tax of 1921 to $9,398.66, and the tax of 1922 to $11,936.24, to correct errors conceded by the Tax Commission, and as so modified determination confirmed, without costs.