(dissenting).
I find myself in disagreement with the opinion of the majority of the court.
The facts as found by the court show that there never was at any time any actual pverpayment of taxes by these Ford corporations, either separately or collectively. It is admitted, that only the correct taxes had been paid and that not one dollar of the taxpayer’s money over the amount of the correct taxes was used or enjoyed by the government for any period of time. Having this outstanding fact in mind, the conclusion awarding a judgment is impossible to my way of thinking. All of these corporations were owned and controlled in whole by Henry Ford and his son in July, 1919, with the exception of the Michigan corporation. They owned the controlling stock interest in this corporation and had an option of purchase for the scattered minority stock and holdings of Couzens and Hauss. All these corporations were treated as a unit, having the same officers, the same attorneys, and the same offices. The Michigan corporation made payment of the first installment of the entire taxes of all the corporations. All other payments of taxes were made by the Delaware corporation. The Delaware corporation filed a return of income for the group claiming affiliation as of July 1, 1919, but the Commissioner ruled out of the affiliated group the Michigan corporation from July 1, 1919, to September 2, 1919, on the ground that the Delaware corporation did not possess or own sufficient stock in the Michigan corporation as of July 1, 1919, to permit affiliation. From July to September the Delaware corporation acquired the stock of Couzens and Hauss and other minority holdings, arid the Commissioner allowed affiliation as of the date of September 2, 1919. As the taxes of the several corporations had been paid on the basis of affiliation from July 1, 1919, whereas affiliation of the Michigan corporation was allowed as of September, 1919, the Commissioner separated the taxes due by the Michigan corporation and the Delaware corporation up to that date. The result of this statement showed the Michigan corporation as having underpaid its taxes in an amount over nine millions of dollars and the Delaware corporation as having overpaid its taxes by something over seven millions of dollars. The same officers and attorneys representing these corporations requested of the Commissioner and were permitted by him to apply the credit of the Delaware corporation to the deficien*605cy of the Michigan corporation, and, after this was done, the balance due the government of over a million dollars was paid by the check of the Ford Motor Company. Although there is nothing in the record to show whether this was the check of either of these corporations, it is a fair assumption that it was the check of the Ford. Motor Company of Delaware, for the Michigan corporation had passed out of existence at that time, and only the Delaware company was alive and functioning.
This suit is not one to recover an overpayment of taxes but to recover interest on the bookkeeping or formal credit made by the Commissioner. Doubtless, following the form of these transactions and applying the strict letter of the law, the majority opinion is correct; but, when the substance of these transactions is taken into consideration and the spirit of the law applied, the plaintiff is not entitled to recover $1 from the government. While these two corporations were separate legal entities, yet in fact and for all practical purposes (taxation purposes) they were the same. The Delaware corporation owned a majority of the stock of the Michigan corporation, and the latter, acting as its agent, was subj ect in all things to its proper direction and control. Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 S. Ct. 540, 62 L. Ed. 1142.
In 1920, when this transaction was consummated, all the stock of the Michigan corporation was owned by the Delaware corporation and all the companies - had been merged into the Delaware corporation, aftid Henry Ford and his son were the sole owners of this corporation.-
The taxes were never actually overpaid; as a matter of fact, less; than the, correct amount of-taxes had been collected. The government has’ never had the use of a dollar of actual overpaid taxes. The theory of allowing interest on overpayments is that the government has had the use of the taxpayer’s money and should pay for its enjoyment what it is supposed the taxpayer could have made if he had had the use of that money. It was never contemplated or intended that interest should be allowed on an artificial or bookkeeping credit, totally lacking any use or enjoyment of the funds. I Can find no equity or justice in construing the facts and applying the letter of the law so that Henry-Ford and his son, through entire ownership of the stock of this corporation, should receive from the Treasury of the United States the enormous sum of over $2,000,000 as-interest on a technical or bookkeeping credit when, as a matter of fact, the government has only collected the- actual taxes due and has not at -any period of time had possession or enjoyed the use of $1 of the Fords’ money which was an actual live credit or overpayment.
I am of the opinion that the court should hold that the so-called “credit” was formal in character, a bookkeeping credit, and on such a credit the interest statute was inapplicable where no actual overpayment resulted.
In my opinion, the plaintiff should not recover.