[1217]*1217OPINION.
Black. :
It is the contention of respondent that under the law and regulations applicable to the year 1929 the period .from January 1 to March 26, 1929, constitutes a “taxable year” and that the loss of the Niles Tool Works C'o. for the year 1927 can not be applied beyond that “taxable year.”
[1218]*1218It is the contention of petitioner that the balance of the statutory net loss of the Niles Tool Works Co. for the year 1927, over and above the amount applied as a deduction to the period January 1 to March 26, 1929, may be applied as a deduction from consolidated net income to the balance of the year 1929 on the theory that the two periods, January 1 to March 26, 1929, and March 27 to December 31, 1929, constitute one “taxable year” under the decision of the Supreme Court in Helvering v. Morgan’s, Inc., 293 U. S. 121, and the Board’s decision in Lefcourt Realty Corporation, 31 B. T. A. 978. And if it happened that the same corporation continued to have net losses in the two next succeeding years no one received the benefit of the net loss deductions. Woolford Realty Co. v. Rose, 286 U. S. 319.
All this has been changed by the Commissioner’s regulations under the 1928 Act. Article 41 (c), Regulations 75, provides:
A net loss sustained by a corporation prior to the date upon which, its income is included in the consolidated return of an affiliated group (including any net loss sustained prior to the taxable year 1929) shall be allowed as a deduction in computing the consolidated net income of such group in the same manner, to the same extent, and upon the same conditions as if the consolidated income were the income of such corporation; but in no case in which the affiliated status is created after January 1, 1929, will any such net loss be allowed as a deduction in excess of the cost or the aggregate basis of the stock of such corporation owned by the members of the group.
These changes we feel we should point out as appropriate to a discussion of the issue we have here to decide.
It may be appropriate to point out at this juncture that the net loss carry-over of a corporation in a consolidated return under the 1926 Act and prior acts is different from the way it is treated under the Commissioner’s Regulations 75, promulgated under the 1928 Act, applicable to the year 1929 and subsequent years. Under the 1926 Act and prior acts, the net loss of the Niles Tool Works Co. for the years 1927 and 1928 could have been applied only as a deduction against the net income of the same corporation, even though it was joined in a consolidated return with other corporations for the next succeeding two years, and if any such net losses were not absorbed by the net income of the same corporation, no further deduction could be taken by reason of such net losses.
Petitioner contends that respondent’s Regulations 75, 1928 Act, went beyond the authority given in section 141 (b) in issuing article 41 (d), which states:
Any period of less than 12 months for which either a separate return or a consolidated return is filed, under the provisions of Article 13, shall be considered as a taxable year.
We held in Lefcourt Realty Corporation, supra, that article 41 (d) was invalid as to the taxpayer in that case, basing our hold[1219]*1219ing upon the decision of the Supreme Court in Helvering v. Morgan’s, Inc., supra. In Lefcourt Realty Corporation, supra, among other things, we said:
Under section 141(b) of the Revenue Act of 1928, the respondent is given authority, with the approval of the Secretary, to prescribe such regulations for consolidated returns as he deems necessary “to reflect the income and to prevent avoidance of tax liability.” The authority does not extend to prescribing regulations which shall deny to corporations deductions from income and have the effect of increasing the taxable income. The statute prescribes that the net loss of a “taxable year” may be deducted from the net income of the succeeding taxable year and any excess from the following taxable year. Clearly if Regulations 75 did not prescribe a different definition for “taxable year” from that contained in the statute the petitioner’s subsidiaries would be entitled to deduct from their net incomes of the fiscal year ended November 30, 1928, the net losses of the 12-month period ended November 30, 1927, and any excess from their net incomes of the fiscal year ended November 30, 1929. Helvering v. Morgans, Inc., supra. To the extent that Regulations 75 are in conflict with the statute and deny to corporate taxpayers deductions to which they are entitled under the taxing statute they are invalid. Morrill v. Jones, 106 U. S. 466; Utah Power & Light Co. v. United States, 243 U. S. 389; Ramsey v. Commissioner, 66 Fed. (2d) 316; certiorari denied, 290 U. S. 673.
It should be noted that Regulations 75 were promulgated prior to the decision of the Supreme Court in Helvering v. Morgans, Inc., supra. Had the respondent had the benefit of the interpretation placed upon the term “taxable year” contained in the above cited decision of the Supreme Court, presumably he would not have provided in his regulations that “any period of less than 12 months for which either a separate return or a consolidated return is filed * * * shall be considered as a taxable year.”
Although, as we stated in Lefcourt Realty Corporation, supra, the Commissioner is given broad authority under section 141 (b),Kevenue Act of 1928, to make regulations governing the filing of consolidated returns by affiliated corporations, he is not given authority to make regulations which deprive a taxpayer of rights granted to him by the statute.
This fact is made plain by the court’s opinion in Corner Broadway-Maiden Lane, Inc. v. Commissioner, 76 Fed. (2d) 106. In that case the court, after quoting the particular regulation which it was there considering, said:
This attempts to enact as a regulation the commissioner’s contention that an affiliated group does not include any corporation which under section 141 cannot be included in a consolidated return. It is directly contrary to the statutory definition of an affiliated group, and to that extent it must be regarded as invalid. A decision by the Board has so held in a well-reasoned opinion. Travelers Indemnity Co. v. Com’r., 31 B. T. A. —, No. 102 [par. 407]. Although section 141 (a) conditions the making of a consolidated return on consent to regulations prescribed under subsection (b), this requirement must be limited to regulations not inconsistent with the statute, or otherwise invalid.
[1220]*1220Cf. American Gas & Electric Securities Corporation, 33 B. T. A. 245.
It is true that the Court of Appeals for the District of Columbia, on rehearing in Wishnick-Tumpeer, Inc. v. Helvering, 77 Fed. (2d) 774;
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[1217]*1217OPINION.
Black. :
It is the contention of respondent that under the law and regulations applicable to the year 1929 the period .from January 1 to March 26, 1929, constitutes a “taxable year” and that the loss of the Niles Tool Works C'o. for the year 1927 can not be applied beyond that “taxable year.”
[1218]*1218It is the contention of petitioner that the balance of the statutory net loss of the Niles Tool Works Co. for the year 1927, over and above the amount applied as a deduction to the period January 1 to March 26, 1929, may be applied as a deduction from consolidated net income to the balance of the year 1929 on the theory that the two periods, January 1 to March 26, 1929, and March 27 to December 31, 1929, constitute one “taxable year” under the decision of the Supreme Court in Helvering v. Morgan’s, Inc., 293 U. S. 121, and the Board’s decision in Lefcourt Realty Corporation, 31 B. T. A. 978. And if it happened that the same corporation continued to have net losses in the two next succeeding years no one received the benefit of the net loss deductions. Woolford Realty Co. v. Rose, 286 U. S. 319.
All this has been changed by the Commissioner’s regulations under the 1928 Act. Article 41 (c), Regulations 75, provides:
A net loss sustained by a corporation prior to the date upon which, its income is included in the consolidated return of an affiliated group (including any net loss sustained prior to the taxable year 1929) shall be allowed as a deduction in computing the consolidated net income of such group in the same manner, to the same extent, and upon the same conditions as if the consolidated income were the income of such corporation; but in no case in which the affiliated status is created after January 1, 1929, will any such net loss be allowed as a deduction in excess of the cost or the aggregate basis of the stock of such corporation owned by the members of the group.
These changes we feel we should point out as appropriate to a discussion of the issue we have here to decide.
It may be appropriate to point out at this juncture that the net loss carry-over of a corporation in a consolidated return under the 1926 Act and prior acts is different from the way it is treated under the Commissioner’s Regulations 75, promulgated under the 1928 Act, applicable to the year 1929 and subsequent years. Under the 1926 Act and prior acts, the net loss of the Niles Tool Works Co. for the years 1927 and 1928 could have been applied only as a deduction against the net income of the same corporation, even though it was joined in a consolidated return with other corporations for the next succeeding two years, and if any such net losses were not absorbed by the net income of the same corporation, no further deduction could be taken by reason of such net losses.
Petitioner contends that respondent’s Regulations 75, 1928 Act, went beyond the authority given in section 141 (b) in issuing article 41 (d), which states:
Any period of less than 12 months for which either a separate return or a consolidated return is filed, under the provisions of Article 13, shall be considered as a taxable year.
We held in Lefcourt Realty Corporation, supra, that article 41 (d) was invalid as to the taxpayer in that case, basing our hold[1219]*1219ing upon the decision of the Supreme Court in Helvering v. Morgan’s, Inc., supra. In Lefcourt Realty Corporation, supra, among other things, we said:
Under section 141(b) of the Revenue Act of 1928, the respondent is given authority, with the approval of the Secretary, to prescribe such regulations for consolidated returns as he deems necessary “to reflect the income and to prevent avoidance of tax liability.” The authority does not extend to prescribing regulations which shall deny to corporations deductions from income and have the effect of increasing the taxable income. The statute prescribes that the net loss of a “taxable year” may be deducted from the net income of the succeeding taxable year and any excess from the following taxable year. Clearly if Regulations 75 did not prescribe a different definition for “taxable year” from that contained in the statute the petitioner’s subsidiaries would be entitled to deduct from their net incomes of the fiscal year ended November 30, 1928, the net losses of the 12-month period ended November 30, 1927, and any excess from their net incomes of the fiscal year ended November 30, 1929. Helvering v. Morgans, Inc., supra. To the extent that Regulations 75 are in conflict with the statute and deny to corporate taxpayers deductions to which they are entitled under the taxing statute they are invalid. Morrill v. Jones, 106 U. S. 466; Utah Power & Light Co. v. United States, 243 U. S. 389; Ramsey v. Commissioner, 66 Fed. (2d) 316; certiorari denied, 290 U. S. 673.
It should be noted that Regulations 75 were promulgated prior to the decision of the Supreme Court in Helvering v. Morgans, Inc., supra. Had the respondent had the benefit of the interpretation placed upon the term “taxable year” contained in the above cited decision of the Supreme Court, presumably he would not have provided in his regulations that “any period of less than 12 months for which either a separate return or a consolidated return is filed * * * shall be considered as a taxable year.”
Although, as we stated in Lefcourt Realty Corporation, supra, the Commissioner is given broad authority under section 141 (b),Kevenue Act of 1928, to make regulations governing the filing of consolidated returns by affiliated corporations, he is not given authority to make regulations which deprive a taxpayer of rights granted to him by the statute.
This fact is made plain by the court’s opinion in Corner Broadway-Maiden Lane, Inc. v. Commissioner, 76 Fed. (2d) 106. In that case the court, after quoting the particular regulation which it was there considering, said:
This attempts to enact as a regulation the commissioner’s contention that an affiliated group does not include any corporation which under section 141 cannot be included in a consolidated return. It is directly contrary to the statutory definition of an affiliated group, and to that extent it must be regarded as invalid. A decision by the Board has so held in a well-reasoned opinion. Travelers Indemnity Co. v. Com’r., 31 B. T. A. —, No. 102 [par. 407]. Although section 141 (a) conditions the making of a consolidated return on consent to regulations prescribed under subsection (b), this requirement must be limited to regulations not inconsistent with the statute, or otherwise invalid.
[1220]*1220Cf. American Gas & Electric Securities Corporation, 33 B. T. A. 245.
It is true that the Court of Appeals for the District of Columbia, on rehearing in Wishnick-Tumpeer, Inc. v. Helvering, 77 Fed. (2d) 774; certiorari denied, 296 U. S. 628, has held that where an affiliated corporation joins a group, it must file or be treated as having filed a separate return between the end of its former separate return period and the commencement of the taxable year of the group, and that under article 41 (d) of Regulations 15, the separate period return means a taxable year for the purpose of net loss carry-over and that as the acceptance of such regulations was optional with the taxpayer, there was no reason to justify a claim that the regulations were invalid.
It is also true that the decision of the court on rehearing in the Wishnick Tumpeer, Inc., case was after the decision of the Supreme Court in Helvering v. Morgan’s, Inc., supra, and discussed it and distinguished it. We have given the court’s opinion in the Wishnick-Tumpeer, Inc., case our most respectful and careful consideration and we think that the facts which we have before us in the instant case are distinguishable from those which were present in the Wishnick-Tumpeer, Inc., case.
In the latter case there was present a change by both the parent corporation and the subsidiary corporation in their accounting periods. The importance of this change in accounting periods as it affected the question before the court, was emphasized in its opinion, as follows:
In Morgan’s case the taxpayers’ taxable year (parent and affiliate), both before and after the year of affiliation, was the calendar year, and the filing of returns for fractional parts of the year did not involve any change in either of the taxpayers’ accounting years and, so far as the question here involved is concerned, had no effect upon the actual net income, or the amount of tax. In the instant case, Tumpeer’s previous taxable year was the calendar year, and Pioneer’s the fiscal year ending October 31.
The application of Tumpeer involved a complete change in accounting periods of hoth parent and affiliate. The consent was a concession for which the Commissioner had the right to demand terms. The conditions were that Pioneer should file a separate return for the period prior to affiliation and that such return should be considered as covering a tax-year. In effect, he said to petitioner — If the returns of Pioneer for the two months prior to affiliation and the six months of affiliation be considered as a single return, the result will be to permit its entire loss carry-over to be set off against earnings of only eight months; and this will not correctly reflect its tax for the reason that a return for that period will not correctly reflect its income. — True, to this it may be said — neither does the regulation; but, since the regulation must apply generally, it is not enough to say that in a particular case — where it is optional and not coercive — it is invalid because, it deprives a taxpayer of something which otherwise he would be entitled to. An occasional hardship is [1221]*1221inescapable. It was the recognition of this fact, doubtless, which induced Congress in 1928 to enlarge the power of the Commissioner to make specific rules to apply when a change of accounting period like that involved here is asked as a matter of grace. It is true that in this case, as was true in Morgan’s case, if Pioneer had not taken advantage of the provision authorizing consolidated returns, it would have been permitted to carry over its net loss of 1927 for the next two succeeding years; but, even in that event — the two succeeding years would have embraced two full years and not, as in the present case, a materially shorter time.
Ill the instant case there has been no change in accounting periods as was present in the Wishnick-Tumpeer, Inc., case. The facts in the instant case in that respect are similar to what they were in Lefcourt Realty Corporation, supra, where we emphasized that there had been no change in the accounting period of the corporations such as was present in the Wishnick-Tumpeer, Inc., case and which distinction we there discussed.
Therefore, following our decision in Lefcourt Realty Corporation, supra, which in turn followed the Supreme Court’s decision in Helvering v. Morgans, Inc., supra, as we interpret it, we sustain petitioner on the sole issue involved in this proceeding.
Reviewed by the Board.
Decision will he entered under Rule 50.
Smith dissents.