(dissenting).
The facts in the ease were found from the allegations and admissions of the pleadings. I find nothing in them that tends to sustain an inference or intimation that what was done by respondent was a device to evade paying any tax on profits when respondent should sell the bonds. Nor do I see how it can be maintained on the facts that the bank and respondent bought the bonds. The petitioner alleged and the Board of Tax Appeals found that prior to 1921 the bank bought the bonds of a par value of $750,000 from the public, paying therefor $713,038.-25. It was admitted and the Board found that petitioner bought these bonds from the bank on December 6, 1921, for $735,000, which sum in large part was borrowed from outside banks. Norte of it so far as the record shows was funds of the Liberty National Bank or borrowed from it. The two corporations were distinct — one a national, the other a state organization — with different purposes and powers. They made, were required to make, consolidated returns as affiliates under the Act of 1918 for the years 1918-1921 inclusive. That, of course, was only for the purpose of Federal taxation. But the majority opinion seems to rest on the assumption that the Act of 1918 destroyed the separate identity of the affiliates for the time being and made them one for all purposes, to which I cannot yield assent. I agree with the statement of the Board in its opinion:
“Except for the purposes of Federal income tax the two concerns here involved during all the time material to this proceeding were separate corporate entities. * * * No law known to this Board barred either *61corporation from dealing with the other, although for tax purposes such transaction could not result in taxable gain or deductible loss during the period in which consolidated returns were required.”
The respondent sold $9,200 face value of the bonds in 1921, and the profit or loss on their purchase and sale was returned in the consolidated return for 1921. During 1922 respondent sold the remaining bonds of a par value of $740,800 to the public and received $726,128.36 for them, for which it had paid the bank $725,984. It made a separate return for the year 1922 as it had a right to do under Section 240 (a) of the Act of 1921 (42 Stat. 227, 260), and computed its profits according to the terms of Section 202 (a) of said act:
“That the basis for ascertaining the gain derived or loss sustained from a sale or other disposition of property, real, personal, or mixed, acquired after February 28, 1913, shall be the cost of such property. * * * ”
Petitioner contends that to the profit so
realized by respondent arising from what it paid the bank for the bonds and the amount it sold them for there should be added the profit realized by the bank ($21,505.21) when it sold the $740,800 in bonds to respondent. I am unable to see that the nontaxable profits so realized and retained by the bank during affiliation was income taxable to respondent. It is said that respondent had the benefit of the Act of 1918 in making with its affiliate consolidated returns for 1918-1921 inclusive. Surely, it cannot be meant that compliance with the requirements of a tax act is binding consideration for submission to an unauthorized tax. This is an example of casus omissus. The Board in concluding its opinion said:
“Clearly, since the property involved was not subject to depreciation, the gain or loss from such sale was the difference between cost (to taxpayer) and selling price. To hold otherwise would be to extend the purposes and effect of affiliation for income tax purposes by implication and this is not within the power of the Commissioner or of the Board. The plain language of the law must prevail. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; Benziger v. United States, 192 U. S. 38, 55, 24 S. Ct. 189, 48 L. Ed. 331; Shwab v. Doyle, 258 U. S. 529, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454; and United States v. Merriam, 263 U. S. 179, 187, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547.”
I think the order of the Board of Tax Appeals should be affirmed.