The opinion
SIMONS, Circuit Judge
(dissenting).
I am unable to concur in ,the decision. “Taxation, as it many' times has been said, is eminently practical.” Tyler v. United States, 281 U.S. 497, 503 , 50 S.Ct. 356, 359 , 74 L.Ed. 991 , 69 A.L.R. 758 . The preferred stock of the affiliates was in terms and in fact “nonvoting.” So viewed, the practical mind would have difficulty in classing the stock as “voting,” even in the absence of statutory *975 definition, and notwithstanding rights existing under Illinois law, for the “Act of Congress has its own criteria, irrespective of local law.” Weiss v. Wiener, 279 U.S. 333 , 49 S.Ct. 337, 338 , 73 L.Ed. 720 . Granted that in a controversy between preferred stockholders and the corporation, or between classes of stockholders, voting rights reserved by the Illinois Constitution and statutes could be asserted, they are not here being pressed by the preferred stockholders, but for them by the Commissioner, and the corporation which represents the stockholders is in adversary position. Voting rights may be waived. So much the Commissioner concedes. Granted that a waiver would not be forever binding and might be withdrawn, we are not advised that this has been done.
The statutory test of an affiliate is its control by another corporation exercising 95 per cent, of its voting rights. No more practical, nor more arbitrary test can be suggested. It presents a question of fact to be decided by a realistic view of the actual situation with respect to control rather than by consideration of abstract legal rights, neither exercised nor asserted. The decision of the board should be reversed.