Brooklyn Beading & Novelty Co. v. Commissioner

BROOKLYN BEADING & NOVELTY CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Brooklyn Beading & Novelty Co. v. Commissioner Docket No. 22254. United States Board of Tax Appeals 18 B.T.A. 450; 1929 BTA LEXIS 2046; December 6, 1929, Promulgated *2046 The evidence fails to show that petitioner and another corporation were deprived of their right to file consolidated returns for the year 1922. The fact that prior to the making of their returns for 1923 the Commissioner determined that said corporations were affiliated during the years 1918 to 1920 can not be held to be a grant of permission to them to change the basis of their returns for 1922 and 1923 from separate to consolidated. William R. Rust, Esq., for the petitioner. Bruce A. Low, Esq., for the respondent. PHILLIPS *450 This proceeding involves a redetermination of deficiencies in income tax for the calendar years 1922 and 1923, in the respective amounts of $39.24 and $1,081.51. The only error asserted is that respondent has refused to determine the income of petitioner and the Peerless Silk Mills, Inc., upon the basis of affiliated corporations. FINDINGS OF FACT. Petitioner is a corporation which was organized under the laws of New York in or about the year 1910 and was and is a dealer and jobber in satin bindings for the shoe trade. The Peerless Silk Mills, Inc., hereafter referred to as the Silk Mills, was organized about*2047 the year 1917 with a capital stock of $10,000. Of *451 this amount $9,000 was issued to petitioner. The remaining stock was kept in the treasury and some of it was sold to the company's manager. About 1919 the Silk Mills increased its capital stock to $25,000 and petitioner at once became the owner of the whole of the new issue. From the date of the new issue down to and including the years 1922 and 1923 petitioner was the owner of over 96 per cent of the outstanding capital stock of the Silk Mills. The latter company manufactured ribbons and materials for petitioner. Petitioner and the Silk Mills made separate income-tax returns for the years 1917 to 1922, inclusive. Under date of August 26, 1921, the Deputy Commissioner of Internal Revenue wrote petitioner a letter, the material part of which reads: Reference is made to the income and profits tax return filed by your corporation for the taxable year 1919. In order to enable the Bureau to determine whether or not your company was affiliated with any other company during the taxable year 1917, 1918 and 1919, within the purview of Articles 77 and 78 of Regulations 41, Treasury Decision 2662 and Section 240 of the*2048 Revenue Act of 1918, there are transmitted herewith two copies of "Affiliated Corporations Questionnaire." You are requested to fill out one copy for the taxable year 1919 and return it to this office. The remaining copy may be retained for your files. If the same conditions as described in the completed questionnaire for 1919 obtained throughout the entire years 1917 and 1918, an affidavit to that effect should be submitted. If the same conditions did not obtain in 1917 and 1918, as in 1919, a complete statement of all changes should be submitted. Statements of changes in stockholdings should be prepared in the forms prescribed in Tables 3 and 6 of the questionnaire. Under date of September 20, 1921, the Deputy Commissioner wrote petitioner a letter, the material part of which reads: Reference is made to your letter dated September 1, 1921, transmitting an executed Affiliated Corporations Questionnaire for the taxable years 1917, 1918 and 1919, for your company and the Brooklyn Beading and Novelty Company. The information submitted is not sufficient to enable the Bureau to determine upon affiliation during the taxable years named. You are, therefore, requested to*2049 furnish in affidavit form the information indicated in the following paragraphs. Under date of July 13, 1923, the Deputy Commissioner wrote petitioner a letter, the material part of which reads: Receipt is acknowledged of your letter dated June 1, 1923, in which exception is taken to the proposed assessment of additional tax amounting to $641.82 for the years 1918 and 1919, as indicated in office letter dated May 15, 1923. * * * You request that an examination be made of your income and profits tax returns in connection with those of the Peerless Silk Mills, Inc. for the purpose of preparing consolidated returns which it is claimed you were entitled to file under section 240 and Article 631 of Regulations 45. *452 You are advised that consideration has already been given to the matter of affiliation of these companies with the result that they were determined not to be consolidated. Under date of March 7, 1924, the Deputy Commissioner wrote petitioner a letter informing it that he proposed additional assessments against it for the taxes due by it and the Silk Mills as affiliated corporations for the years 1918, 1919, and 1920 in the respective amounts of $3,794.70, *2050 $4,006.11, and $2,535.02, or a total of $10,335.83. The proposed taxes were subsequently reduced to about $5,000, which amount was assessed and paid. Subsequent to the receipt of the letter of March 7, 1924, by petitioner, it and the Silk Mills filed a consolidated income-tax return for the calendar year 1923. Under date of March 29, 1926, a revenue agent having made an investigation of the books of petitioner and the Silk Mills, made a report accompanied by extensive schedules and exhibits, and in the report recommended that the income of said corporations be computed on an affiliated basis. In this report he computed an overassessment for the year 1922 of $1,501.93, and an additional tax for the year 1923 of $51.14. Upon the basis of said revenue agent's report respondent has determined the deficiencies above set out and further determined that petitioner and the Silk Mills, by filing separate returns for the year 1922, had elected to file those and all subsequent returns upon a separate basis. OPINION. PHILLIPS: The controversy between the parties arises out of section 240(a) of the Revenue Act of 1921 which provides: SEC. 240. (a) That corporations which are affiliated*2051 within the meaning of this section may, for any taxable year beginning on or after January 1, 1922, make separate returns or, under regulations prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income for the purpose of this title, in which case the taxes thereunder shall be computed and determined upon the basis of such return. If return is made on either of such bases, all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner. Petitioner contends that it had no free choice when it made its returns for the year 1922, for the reason that it had been consistently barred by the rulings of respondent from filing consolidated returns for previous years; that since it exercised no real option in respect of its returns for 1922, it and the Silk Mills had the right to file and did file consolidated returns for the year 1922; and that if this be not true, then the letter of the Deputy Commissioner of March 7, 1924, which proposed a reversal of his former determinations, was at least a grant by implication of permission to change the basis of its and the Silk Mills' returns. *2052 On the other hand, respondent concedes *453 that petitioner and the Silk Mills were affiliated during the years 1922 and 1923 within the meaning of section 240(c) of the Revenue Act of 1921, but contends that, having filed their returns upon a separate basis for 1922, they can not be permitted to change the basis without the express consent of respondent. The evidence in the record is quite meager as to the actions of respondent prior to March 15, 1923, when petitioner's return for the year 1922 appears to have been due. The only express denial of petitioner's right to have its income and that of the Silk Mills computed upon an affiliated basis, which appears in the record, is that contained in the letter of June 13, 1923, which was written in reply to a letter from petitioner dated June 1, 1923. Both petitioner's letter and the letter of the Deputy Commissioner appear to have been written subsequent to the date on which petitioner's return for the year 1922 was due and, therefore, petitioner could not have relied upon the letter of June 13, 1923, in making its return for 1922. Petitioner's whole case, as urged in its brief, is based upon the premise that rulings of the*2053 Commissioner made prior to the date it filed its 1922 return, were such as to require it to file separate returns for 1922. When it fails to establish any basis in fact for such premise, its case falls. Cf. Radiant Glass Co.,16 B.T.A. 610. Besides, it appears that the Silk Mills made separate returns for 1922 and, so far as the record discloses, of its own free choice. Such being the case, petitioner was also required to file on the same basis. See B. B. Bathing Park,17 B.T.A. 748. That respondent on March 7, 1924, proposed to determine that petitioner and the Silk Mills were affiliated for the years 1918 to 1920, inclusive, does not alter the situation. Under section 240(a) of the Revenue Act of 1918 and section 240(c) of the Revenue Act of 1921, affiliated corporations were compelled to make consolidated returns for such years, with the result that it was the duty of respondent to consolidate for such years the separate returns of corporations which were in fact affiliated. On the other hand, under section 240(a) of the Revenue Act of 1921, corporations which were in fact affiliated had the option of making either consolidated or separate*2054 returns for any taxable year beginning on or after January 1, 1922. A separate return was a correct and proper return for 1922 when it would not have been for prior years. Belvidere Lumber Co.,6 B.T.A. 84. Under such circumstances the act of respondent in determining that the tax for the years 1918 to 1920 should be computed on a consolidated basis can not be construed into permission for a change in the subsequent years when a separate return was proper. Decision will be entered for the respondent.