Tolerton & Warfield Co. v. Commissioner

TOLERTON AND WARFIELD COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Tolerton & Warfield Co. v. Commissioner Docket No. 45320. United States Board of Tax Appeals 23 B.T.A. 892; 1931 BTA LEXIS 1801; June 29, 1931, Promulgated *1801 1. Periods of less than a year for which returns are required held, under the Revenue Act of 1924, to be taxable years for purpose of computation of net loss. 2. Net losses sustained prior to affiliation may be used in computing consolidated net income. Ben Ginsburg Co.,19 B.T.A. 81, followed. Allen G. Gartner, Esq., for the petitioner. Eugene Meacham, Esq., for the respondent. ARUNDELL *892 Proceeding for the redetermination of deficiencies of $10,070.63 and $1,339.82 in income taxes for the period April 26, 1924, to December 31, 1924, and the calendar year 1925, respectively. The issue is whether net losses sustained during the fiscal year ended January 31, 1924, and the period from February 1, 1924, to April 26, 1924, by two affiliated corporations with which petitioner was affiliated *893 after April 26, 1924, may be allowed as deductions in computing net income of the affiliated group during the taxable periods. The facts were stipulated. FINDINGS OF FACT. For the fiscal year ended January 31, 1924, the William Tackaberry Company, hereinafter called the Tackaberry Company, and the Tackaberry Allen*1802 Realty Company, hereinafter called the Realty Company, the former being the owner of all of the capital stock of the latter, filed separate returns. The respective returns showed statutory net losses of $29,025.60 and $679.75. For the period from February 1, 1924, to April 26, 1924, they filed a consolidated return in which the Tackaberry Company showed a net loss of $45,792.28 and the Realty Company net income of $2,447.33, resulting in a consolidated net loss of $43,344.95. No part of the net losses sustained by the two corporations during the fiscal year ended January 31, 1924, was used in computing the consolidated net loss of $43,344.95. The petitioner acquired all of the capital stock of the Tackaberry Company on April 25, 1924, and thereafter the three corporations were affiliated. This affiliated group filed consolidated returns for the calendar years 1924 and 1925. The return filed for 1924 reported petitioner's income for the entire year and that of the two remaining corporations for the period from April 26, 1924, to December 31, 1924. Of the net losses sustained in the year ending January 31, 1924, and the period February 1 to April 26, 1924, amounting to $73,050.30, *1803 the affiliated group deducted $65,031.65 in computing their consolidated net income for 1924, resulting in a return of no net income. The balance of the net loss, amounting to $8,018.67, was deducted by the group in computing consolidated net income for 1925. The Tackaberry Company surrendered its charter in November, 1925. The three corporations had separate accounting systems prior to April 26, 1924. Subsequent to that date they were consolidated. The respondent determined that the petitioner sustained a net loss of $17,906.60 for the period from January 1, 1924, to April 26, 1924, and that thereafter in 1924, the three corporations had net taxable income of $80,565.02. In computing the consolidated net income of the three corporations for the period from April 26, 1924, to December 31, 1924, he disallowed this net loss as a deduction. In determining the proposed deficiencies the respondent disallowed the net losses sustained by the Tackaberry Company and the Realty Company prior to April 26, 1924, as deductions, on the ground that they were sustained prior to the affiliation of the three corporations. *894 OPINION. ARUNDELL: Although the Tackaberry Company*1804 owned 100 per cent of the stock of the Realty Company, each filed separate returns for the fiscal year ended January 31, 1924. For the period from February 1 to April 26, 1924, these two companies filed consolidated returns and while this action is not explained it is not contested. On April 26, 1924, the petitioner acquired 100 per cent of the stock of the Tackaberry Company, thus making possible the filing of consolidated returns by all three companies. The petitioner in a consolidated return reported its income for the calendar year 1924, together with the income of the Tackaberry and Realty Companies for the period from April 26 to December 31, 1924. The respondent refused to accept the returns so filed and insisted that the petitioner file a separate return for the period from January 1 to April 26, 1924, and that the consolidated return for all three companies cover only the period from April 26, 1924, to December 31, 1924. We agree with the respondent's action. ; *1805 ; . The Tackaberry and Realty Companies had net losses of $29,025.60 and $695.75, respectively, for the fiscal year ended January 31, 1924. For the short period from February 1, 1924, to April 26, 1924, the Tackaberry Company had a net loss of $45,762.28 and the Realty Company had net income of $2,447.33, more than enough to absorb the net loss of the Realty Company for the period ended January 31, 1924. As a result of respondent's action in requiring a separate return for petitioner covering the period from January 1, 1924, to April 26, 1924, petitioner is shown to have sustained a net loss of $17,906.60, the amount of which is not in dispute if respondent's requirement is in accordance with the law. Section 200 of the Revenue Act of 1924 defines a taxable year as including any fractional part of a year for which a return is made under the law or under regulations prescribed by the Commissioner. As above pointed out, we have construed the law as requiring a return to be made for the short period, February 1 to April 26, 1924, with respect to the Tackaberry*1806 and Realty Companies, and for the period January 1 to April 26, 1924, as to the petitioner. These short periods therefore constitute taxable years and are to be treated as such in the allowance of net losses. Under our decisions in ; ; , and other cases cited in the latter opinion, the net losses sustained by the constituent corporations prior to affiliation are allowable deductions in computing consolidated net income. *895 Accordingly, in this case the net loss of the Tackaberry Company for the year ended January 31, 1924, and for the period February 1 to April 26, 1924, may be carried forward and used in computing consolidated net income for the period April 26 to December 31, 1924. Likewise, petitioner's net loss for the period January 1 to April 26, 1924, may be used in computing consolidated net income for the period April 26 to December 31, 1924. Any unabsorbed net loss for the periods ended April 26 and December 31, 1924, may be carried forward and used in computing consolidated net income for*1807 the year 1925. Decision will be entered under Rule 50.