The opinion
*521 OPINION.
Smith:
The taxpayer claims that it was affiliated with the B. & L. Auto Lamp Co. for the year 1919. This is denied by the Commissioner upon the ground that it owned or controlled only two-thirds of the capital stock of the Lamp Company during the year and that the ownership or control of that amount of stock of its subsidiary is not sufficient to entitle the corporations to file a consolidated return for the year 1919 under section 240 (b) of the Revenue Act of 1918, which provides that two or more domestic corporations are affiliated “ if one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others.”
The evidence adduced at the hearing of this appeal is not definite. The shares of stock of the B. & L. Auto Lamp Co. acquired by the taxpayer were apparently, in the first instance, acquired by two individuals, each of whom owned 50 per cent of the stock of taxpayer. These certificates were acquired with money advanced by the taxpayer and they were turned over to one Pompan, an attorney, apparently for safe-keeping. It is not at all clear whether the shares of stock were carried as an investment on the taxpayer’s books of *522 account. The certificate for the shares of stock in the B. & L. Auto Lamp Co. acquired by Lapidus was also held by Pompan, — whether for safe-keeping or as security for the payment of a note originally given to Brown, but later acquired either by Kasher or the taxpayer, is not certain. Lapidus had an agreement with Kasher whereby he could sell his stock to Kasher at any time that he might desire to retire from the business. Apparently, however, Lapidus was not required to offer the stock to Kasher if he did not desire to do so. Lapidus voted the stock as he wished at all meetings of the stockholders and apparently the taxpayer had no control over the shares of stock. The only conclusion to be drawn from the evidence is that the taxpayer owned two-thirds of the shares of stock of the B. & L. Auto Lamp Co. and the remaining third was owned by Lapidus, who owned no stock whatever of the taxpayer. This ownership is not enough to entitle the corporation to file a consolidated return with the B. & L. Auto Lamp Co.
ARUNDell not participating.