(dissenting).
Allstate Insurance Company’s eligibility to use the “growth” method, prescribed by section 435(e) (1) (A) (i) of the Internal Revenue Code of 1939, in computing its Korean War excess profits tax credit depends upon whether it was required to add to the $15,381,893.70, its total assets as of the first day of its base period (January 1, 1946), the total assets of its parent corporation, Sears, Roebuck and Company. This requirement depends in turn on whether Allstate had the privilege under section 141 of the Internal Revenue Code of 1939 of filing a consolidated return with its parent corporation for the first taxable year under the Excess Profits Tax Act of 1950.
Section 141 of the 1939 Code provides that: “An affiliated group of corporations shall * * * have the privilege of making a consolidated return for the taxable year in lieu of separate returns.” Under the facts, Allstate and Sears were an “affiliated group” within the meaning of this section.
Notwithstanding the clear words of section 141, Allstate argues that section 24.14 of the Treasury Department’s Regulations 129 (the consolidated returns regulations) when construed with section 29.204-1 of Regulations 111 (the income tax regulations) deprived it of the privilege of filing a consolidated return with Sears for the first taxable year ending after June 30, 1950.1 It points out *351that section 24.14 of the regulations requires that the taxable year of a subsidiary which makes a consolidated return should be the same as the taxable year of the parent corporation and, if they are not the same, the regulation requires the subsidiary to change its accounting period to conform; but since Allstate is an insurance company and thus required by section 29.204-1 of the regulations to use a calendar year for income tax reporting purposes, it could not conform to Sears’ fiscal year accounting period. Allstate adds that Sears could not have changed to a calendar year accounting period without first having obtained the Commissioner’s discretionary approval pursuant to a timely request as required by section 46 of the 1939 Code and section 29.46-1 of Regulations 111.
The right of an insurance company (such as Allstate) taxable under section 204 of the 1939 Code to file a consolidated return with a non-insurance parent company was established by the Excess Profits Tax Amendments of 19412 and the Revenue Act of 1942.3
The specific question is whether at any time from 1942 until the enactment of the Excess Profits Tax Act of 1950 on January 3, 1951, Allstate and Sears could have coordinated their taxable years so as to comply with the applicable Treasury regulations. It is true, as taxpayer argues, that section 29.204-1 of Regulations 111 (which requires insurance companies such as Allstate to file their returns on a calendar year basis) when construed with section 24.14(a) of Regulations 129 (which specifies that the taxable year of an affiliated group shall be the same as that of the parent) would have prevented the filing of a consolidated return on Sears’ fiscal year accounting basis. However, there was nothing in the statutes or regulations that would have prevented Sears from changing its taxable year from a fiscal to a calendar year basis.
Indeed, taxpayer acknowledges this possibility but says a change by Sears to a calendar year accounting basis could not have been accomplished unless Sears had first applied and obtained the Commissioner’s discretionary permission under the provisions of section 29.46-1 of Regulations 111. The Government answers that in similar situations the Commissioner has permitted fiscal year parent corporations to change to their subsidiaries’ calendar year bases. There is nothing to indicate that the Commissioner would not have given consent to Sears had it requested to change its accounting period.
The ultimate question is not whether Sears and Allstate were obligated to coordinate their tax accounting years or whether it was economically advantageous for them to do so. Rather, the question is simply whether they qualified under the statutes and regulations for the filing of a consolidated return.
The legislative history of section 435 (e) (1) (A) (i) indicates that Congress did not intend that the growth method of computing excess profits tax credits should be available to taxpayers such as Allstate. For example, the Senate Finance Committee explained certain changes in the wording of the section (S. Rep. No. 2679, 81st Cong., 2d Sess. 27, U.S.Code Congressional Service 1950, p. 4114 (1951-1 Cum.Bull. 240, 258)):
“Under the Finance Committee bill, as under the House bill, the alternative based on growth is available only if the taxpayer had total assets of not more than $20,000,000 at the beginning of its base period. This restriction is designed to exclude from the benefits of the growth provision large corporations whose earnings experience does not justify additional relief on account of growth. * * *
“The committee bill has added to the limitation based on size the proviso *352that, when the taxpayer is one of a group of corporations meeting the test of affiliation provided in section 141 of the Internal Revenue Code, the assets of the taxpayer shall be added to those of the other ‘affiliated’ corporations for the purpose of the limitation in question. Corporations which are ‘affiliated’ in this manner are eligible to file consolidated returns, and the aggregation of their assets for the purpose of this test is necessary in order to prevent discrimination against affiliated corporations which elect to file consolidated returns.”
In my opinion Allstate should not be granted an unintended tax benefit by its hypertechnical construction of the regulations.
I would sustain the district court’s summary judgment in favor of the Government.
. Allstate’s first taxable year ending after June 30, 1950 was the calendar year ending December 31, 1950; Sears’ first taxable year was the fiscal year ending January 31, 1951.
. Excess Profits Tax Amendments of 1941, ch. 10, § 7, 55 Stat. 17.
. Revenue Act of 1942, ch. 619, § 159, 56 Stat. 798.