The opinion
*185 OPINION.
Smith
: The claim of the taxpayer in this appeal is that it and the Maryland Coal & Coke Co. were affiliated in 1920. The basis of the claim is that Brown and Taylor were owners of 90 per cent of the capital stock of the taxpayer and 65% per cent of the capital stock of the Maryland Coal & Coke Co., and that they, together with their wives, owned 66% per cent of the capital stock of that company.
Section 240 of the Revenue Act of 1918 declares that, for the purpose of imposing the tax, certain corporations shall be deemed to be affiliated. In subdivision (b) it is provided that “ For the purpose of this section two or more domestic corporations shall be deemed to be affiliated * * * (2) if substantially all the stock of two or more corporations is owned or controlled by the same interests.” At the hearing of this appeal the taxpayer made no claim that it or its stockholders owned or controlled more than two-thirds of the shares of stock of the Maryland Coal & Coke Co. The only witness who testified for the taxpayer at the hearing knew of no control which either the taxpayer or its officers had over the shares of stock of the Maryland Coal & Coke Co. owned by George P. Spates. The claim for affiliation is based solely upon the proposition that the corporations are operated to a large extent as a business unit and that the stockholders of the taxpayer own 66% per cent of the shares of stock of the Maryland Coal & Coke Co. We are of the opinion that “ substantially all ” the stock of the two corporations is not owned or controlled by the same interests, yet this is the criterion of affiliation laid down by the taxing statute. The fact of intercompany relations, or the absence of them, without the necessary stock ownership or control as provided in the statute, is not sufficient to permit or require affiliation. Appeal of Schloss Brothers Co., 1 B. T. A. 581; Appeal of Rowe Transfer & Coal Co., 1 B. T. A. 593; Appeal of Canyon Lumber Co., 1 B. T. A. 473. See also Appeal of Madera Yosemite Big Tree Auto Co., 2 B. T. A. 346, in which it was held that the ownership or control of only 65 per cent of the shares of stock of a corporation was not substantially all the shares of stock; and Appeal of United Metal Spinning Co., 2 B. T. A. 520, in which it was held that 66% per cent of the stock was not substantially all the stock of the corporation within the meaning of the statute.
By reason of the fact that the taxpayer was required to furnish no capital for the purchase of coal, there was manifestly an abnormality in its invested capital for the year 1920, and it is entitled to be taxed under the provisions of section 328 of the Act. The taxpayer has, however, furnished no comparatives for the determination of its tax liability. The selection of comparatives which may be made by the *186 Commissioner and tbe determination of tax liability made by him from tbe use of such comparatives will be accepted as final. Appeal of H. T. Cushman Mfg. Co., 2 B. T. A. 39.
Order of redetermination will be entered on 15 days’ notice^ under Rule 50.