The opinion
Smith,
dissenting: The Palomas Land & Cattle Co. kept its books of account and made its income tax returns for 1928 and prior years upon a calendar year basis. It filed a return for the full calendar year 1928 “and included in said return the net income of the Grand Canyon Cattle Company, its only subsidiary, for the period January 1, 1928, to November 30, 1928, to wit, the sum of $2,044.55.” For the full calendar year 1928 Palomas had a net loss. It is stipulated, however, that it had a net income up to the time it sold its shares of stock in Grand Canyon Cattle Co. of $128,953.04, a loss upon the sale of its shares of stock of Grand Canyon Cattle Co. of $130,000, and an operating loss for the month of December 1928 of $565.11.
The respondent, purporting to act under his regulations, has split the operations of Palomas for 1928 into two periods, namely, January 1 to November 30, 1928, and December 1 to December 31, 1928. A loss sustained upon the sale of the shares by Palomas was sustained on November 30, 1928. The respondent has disallowed the deduction of this loss in the determination of the deficiency.
The Board has repeatedly held that where a corporation makes a return or returns for a 12-month period, its reporting period, the respondent may not determine deficiencies upon the basis of operations for a fractional part of the year. Mrs. Grant Smith, 26 B. T. A. 1178; Elgin Compress Co., 31 B. T. A. 273; Pittsburgh & West Virginia Railway Co., 32 B. T. A. 66; Forest Glen Creamery Co., 33 B. T. A. 564.
In Helvering v. Morgan’s, Inc., 293 U. S. 121 , the Supreme Court said:
Tlie definition of “taxable year” in section 200 (a) [Revenue Act of 1926] is therefore incomplete unless it be understood that the period for which a return is made, whether it be for a year or a fractional part o-f it, is to be related to the twelve months’s accounting period of the taxpayer. Where the return is for a period of less than twelve months, the year of which it is a fractional part is the annual accounting period of the taxpayer, which is his taxable year. * * *
The “taxable year” of each of the petitioners involved in these proceedings was the taxable year 1928. The observation of the Supreme Court in the above cited case is equally applicable to the proceedings at bar; for the definition of “taxable year” contained in section 48 of the Revenue Act of 1928, with which we are here concerned, is not different from that considered by the Supreme Court. I am, therefore, of the opinion that the observation made by the Supreme Court in the above cited case is equally applicable here.
We then come to a consideration of the question as to whether Palomas has any liability for income tax for the calendar year *1003 1928, for which it made its return. Clearly, if Palomas had made a separate return for 1928 (assuming that it was not barred from making a separate return for the reason that consolidated returns had been filed for prior years) Palomas would have had no tax liability for 1928; for the loss sustained by it upon the sale of its shares of stock in Canyon was a loss deductible from gross income under the statute.
I do not think that it was the intention of Congress that a tax should be imposed upon Palomas for its “taxable year” 1928 when in fact it had no net income for 1928. Such a result seems to me to be repugnant to the reasoning of the Supreme Court in Helvering v. Morgan's, Inc., supra.