The opinion
L. HAND, Circuit Judge
(dissenting).
I see no reason to suppose that, when the Holed-Tite Company, declared that it and the petitioner meant to file a consolidated return for the year 1927, the two companies had any other purpose than to file the report which they did in the following March. That was a report of fee petitioner’s income for twelve months and the Holed-Tite’s income for five. At least the petitioner has not shown that the intent declared in the letter was different from that evinced in the return. Sueh a consolidated return was not within their statutory privilege; it should have been for a whole year. Lucas v. St. Louis Baseball Club, 42 F.(2d) 984 (C. C. A. 8). In effect we are saying that the general intent to file a consolidated return should prevail over the specific intent manifested. It seems to me that *582 the ease is to be judged exactly as though the letter had not been written. Should we in that ease allow two companies, which had filed two returns, a separate return for seven months, and a joint return for twelve and five months, to demand that the two returns should be consolidated? I am disposed to say that the privilege must be exercised as prescribed by law or that it is lost. It is a favor, and the taxpayers must bring themselves within its tenor. Certainly they may not change their election, once it has been made. Buttolph v. Commissioner, 29 F.(2d) 695 (C. C. A. 7); Rose v. Grant, 39 F. (2d) 340 (C. C. A. 5). Morrow v. Com’r, 57 F. (2d) 1 (C. C. A. 5), is to the contrary, but the facts were very exceptional. This ease is not quite like those, I agree; nevertheless, the actual election here was not to file a tine consolidated return, but a return which the law did not allow. I should not call that an election to file a consolidated return. For this reason I think that the Board was right, though I acknowledge that the ease is a hard one.