The opinion
HUFSTEDLER, Circuit Judge
(dissenting):
Gold-Pak and Bristol could maintain inconsistent accounting methods under Treasury Regulation section 1.1502 — 44A only if (1) the Commissioner consented, (2) the methods clearly reflected taxable income, and (3) intercompany transactions affecting the consolidated taxable income were eliminated. The tax court concluded that none of these conditions was met, and its determination is supported by the record.
The Commissioner did not consent. The majority attempts to avoid this fact by arguing that, if consent were required, the Commissioner unreasonably withheld consent. The Commissioner was not asked for advance consent, and his failure to respond to an unasked question cannot be unreasonable. His failure to approve after the inconsistent accounting systems were adopted was not arbitrary. Changes in accounting methods or the use of inconsistent methods between affiliates commonly result in some distortion of taxable income. (Cf. American Can Co. v. Commissioner of Internal Revenue (2d Cir. 1963) 317 F.2d 604 .) The Commissioner decided that the dual accounting methods used by Gold-Pak and Bristol did distort taxable income. That decision was well within the broad discretion committed to the Commissioner. Our province is not “ ‘to weigh and determine the relative merits of systems of accounting’ ” (United States v. Catto (1966), 384 U.S. 102, *1060 114 , 86 S.Ct. 1311, 1318 , 16 L.Ed.2d 398 ) or to substitute our judgment for the Commissioner’s in matters committed to his discretion, even if we think our judgment is better or fairer. (Cf. Alameda Inv. Co. v. McLaughlin (9th Cir. 1929) 33 F.2d 120 ; 8A Mertens, Law of Federal Income Taxation (1971 ed.) § 46.03.)
I would affirm the Tax Court.