*930OPINION.
Love: The exact nature of the decision in this appeal depends on the decision
(1) Whether or not the New York Central R. R. Co. and the Mahoning Company, in 1919 and 1920, were affiliated corporations; and if not, then
(2) Whether or not the income and excess-profits tax due by the taxpayer corporation for those years and paid by its lessee under the lease contract constituted taxable income to the taxpayer.
The Revenue Act of 1918, in dealing with corporation income and profits taxes, in paragraph (b) of section 240, prescribes:
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.
The part of paragraph (a) of section 240, pertinent to the question here involved, prescribes:
That corporations which are affiliated within the meaning of this section shall, under regulations to be prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income and invested capital * * *.
This Board has not, and no appellate court has, prescribed an exact percentage of stock necessary to be held or controlled to constitute affiliation. In the very nature of the subject, the problem must be solved in the light of the actual facts as they exist in each case, always bearing in mind that actual control of substantially all the voting stock is essential and that such control does not, necessarily, depend upon ownership.
In the Appeal of Canyon Lumber Co., 1 B. T. A. 473, and Appeal of Isse Koch & Co., 1 B. T. A. 624, this Board held that the control “ referred to in the statute, whether it be legal or otherwise, means control of the voting rights of stock.” This Board further held in the last cited appeal that “ The object sought to be accomplished by Congress, in enacting section 240 of the Revenue Act of 1918, was to tax as a business unit what really was a business unit.” See, also, Appeal of Hagerstown Shoe & Legging Co., 1 B. T. A. 666; Appeal of Hamilton & Chambers Co., 1 B. T. A. 694; and Appeal of Rowe Transfer & Goal Co., 1 B. T. A. 593.
It will be noted that during the taxable years the New York Central owned in its own right more than 58 per cent of the stock of the Mahoning Company; that the New York Central and its officers and stockholders owned from 74 to 80 per cent of said stock; *931that the officers of the New York Central were also officers of the taxpayer corporation, and that at all annual stockholders’ meetings the officers of the New York Central voted by right of proxy, or otherwise, more than 81 per cent of the stock of the taxpayer corporation, same being practically all the stock that participated in said meetings, and there was no opposing vote to the policies adopted.
It will be further noted that the stock of the Mahoning Coal B. 11. Co. held by persons who held no stock in the New York Central, was held by a comparatively large number of persons in small amounts, the owners being scattered over a large territory, evidencing the fact, which is corroborated by the facts established, that there was no organized group of minority stockholders, and that their failure to take part in annual meetings resulted from a feeling of satisfaction with the management, and a predetermination to acquiesce in the policies adopted rather than from an unfriendly or antagonistic attitude toward such management.
In the Appeal of Hartford & Connecticut Western R. R. Co., 2 B. T. A. 211, where the taxpayer claimed affiliation with the New Haven E. E. Co., this Board said:
Tlie contract is not a mere lease by wbicb a lessor lets its property to a lessee for a rental. It is a virtual relinquishment by tbe taxpayer to the New Haven of its rights and powers as a subsisting business institution and places the New Haven in control of its destiny. Not only does the New Haven possess and operate the properties, it also may require the taxpayer to acquire more property and to mortgage them as the New Haven directs. All of the taxpayer’s railroad business is out of its hands, including its operating income; and whatever franchises it acquired have been placed at, the New Haven’s disposal. That under these circumstances the New Haven actually controls the business and properties of the taxpayer is plain to be seen.
But it is said that this alone is not enough to bring the statute into operation, because the control of the business and properties is not the control of substantially all the stock. And it is true that in many cases the two are distinct. It does not follow from a lease of the entire properties of a corporation that the lessee can be said to control the stock. Appeal of Old Colony R. R. Co., 1 B. T. A. 1067. There must be substantially more. Certainly there must be a common interest above that of the ordinary lessor in his rent and the preservation of his property. In the present case, however, it is contended that the existence of a substantial minority of outstanding stock should defeat affiliation. It is not shown that by any act such minority has or could frustrate any purpose or plan of the New Haven, but, on the contrary, the insignificant number of minority shares which voted at the stockholders’ meetings in 1917 and 1918 indicates an unobstructed control by the New Haven. Whatever the New Haven requested was done. And how could it be otherwise? The New Haven had the property and it also held sufficient votes to overcome any opposition to its management. Although theoretically the lessor had the right to enforce the terms of the lease and demand forfeiture or other remedy in default of any of the covenants, how was this to be accomplished if the New Haven resisted? Its officers controlled the properties and management, both as officers and directors of the taxpayer, and its majority of shares was *932behind these directors. The sum total of the affairs of the taxpayer was therefore in the hands of the New Haven.
All 'that the shares of stock represented to the minority holders was the right to receive dividends on their stock. And it may be questioned how that right was to be preserved in the event of financial failure of the New Haven. Even a minority stockholders’ proceeding would hardly be adequate where the effectiveness of the business depends on its relation to the larger transportation system of which it is a part. When one corporation so far controls the property and affairs of the other as to leave in the minority stockholders nothing but a bare interest in a division of the rental, it is quibbling to say that the minority stock is not controlled. We must conclude that the New Haven owned directly or controlled substantially all the stock of the taxpayer, and that they were affiliated within the meaning of the statute.
Under such conditions we reach the conclusion that the two companies were affiliated.
The counsel for the Commissioner cites the Appeal of Old Colony R. R. Co., 1 B. T. A. 1067, and urges that it is controlling in this appeal. Control by one corporation of the business operations of another corporation, while a significant circumstance in determining the main question, i. e., control of the stock, is not sufficient within itself to bring the companies within the statutory definition of affiliation. If control of business operations were a dominating factor in this question the decision in the Appeal of Old Colony R. R. Co. would likely have been different. In that case the dominant company held a 99-year lease, the terms of which gave it almost absolute control of all business activities of the other company, but it controlled only 44 per cent of the stock of that other company, and there was no evidence tending to show that it controlled or influenced the voting rights of the other outstanding 56 per cent of stock.
This Board has not held, and the statute does not prescribe, that ownership by one corporation of practically all the stock of another is the only ground for affiliation. The statute prescribes and it is sufficient if “substantially all of the stock” (that is, voting rights) “of two or more corporations is owned or controlled by the same interests.” As stated in the Appeal of Isse Koch & Co., supra, each case must be considered and decided on its own facts and surrounding circumstances. Control need not be legal control, but community of interest may, if recognized and acted upon, constitute sufficient basis to determine the question of control.
In the Old Colony R. R. Co. case it was not shown that more than 44 per cent of the stock of one corporation was in any way controlled by the other corporation as a corporate entity, or by its stockholders. There was no concert of action or harmony of interests as between the holders of the 44 per cent and the 56 per cent of stockholders. The conditions are materially different in the instant appeal. Here we have present all the circumstances relative to busi*933ness control that were urged in the Old Colony R. R. Co. appeal, and further, we have one company and its officers and stockholders actually voting no less than 81 per cent of the stock of the subsidiary company regularly, through a long period of years, with no opposition votes at any time. Clearly the two companies acted as a business unit, prompted by a potent common interest.
If the statute means that affiliation results from a condition of stock ownership and control, such as enables one person, or one group of persons, to control practically all the voting stock, whether that control arises from actual ownership, or such community of interest as to place practically all of the voting stock subject to disposal in stockholders’ meetings by that single dominating unit, we believe the conditions contemplated by the statute have been met.
In view of the fact that it was conceded on the hearing before the Board that in the event of a decision by this Board that a consolidated return 'is proper, then the second and. third assignments of error necessarily become moot questions, no decision is here made on those questions.
Judgment will be entered on 15 days'1 notice, under Rule 50.
Littleton, Mohris, and Phillips dissent. •