opinion.
Littleton:
The stipulation set forth in the findings of fact disposes of the issues raised by the petition relating to the computation of net income, inadmissible assets, invested capital, and deduction for exhaustion, wear and tear of property used in the business. This leaves for determination only the question relating to amortization and affiliation.
Taxpayer alleged in its petition that, in addition to the companies mentioned in the findings of fact, it was affiliated with the San Francisco Sulphur Co. and the Russell Borate Mining Co. At the hearing, however, it withdrew its claim for affiliation with these two companies.
Section 234 (a) (8) of the Revenue Act of 1918 provided for the allowance of amortization in respect of property used for the production of articles contributing to the prosecution of the war. This section contained no provision as to the time or manner in which a claim for amortisation should be ma.de. Section 234 (a) (8) of the Revenue Act of 1921, approved November 23, 1921, provided:
In the case of buildings, machinery, equipment, or other facilities, constructed, erected, installed, or acquired, on or after April 6, 1917, for the production of articles contributing to the prosecution of the war against the German Government, and in the case of vessels constructed or acquired on or after such date for the transportation of articles or men contributing to the prosecution of such war, there shall be allowed, for any taxable year ending before March 3, 1924 (if claim therefor was made at the time of filing return for the taxable year 1918, 1919, 1920, or 1921) a reasonable deduction for the amortization of such part of the cost of such facilities or vessels as has been borne by the taxpayer, but not again including any amount otherwise allowed under this title or previous acts of Congress as a deduction in computing net income. At any time before March 3, 1924, the Commissioner may, and at the request of the taxpayer shall, reexamine the return, and if he then finds as a result of an appraisal or from other evidence that the deduction originally allowed was incorrect, the income, war-profits, and excess-profits taxes for tlie year or years affected shall be redetermined and the amount of tax due upon such redetermination, if any, shall be paid upon notice and demand by the collector, or the amount of tax overpaid, if any, shall be credited or refunded to the taxpayer in accordance with the provisions of section 252.
This taxpayer made no claim for amortization in its returns for either 1918, 1919, 1920, or 1921, but first made claim therefor in its brief filed with the Commissioner on April 27, 1924, in protest of the additional tax proposed to be assessed. The Commissioner denied the claim upon the ground that the allowance thereof was barred under the provisions of section 234 (a) (8) of the Revenue Act of 1921. Taxpayer contends that, as it had filed a waiver consenting to the determination and assessment of its income and profits taxes for the calendar year 1918 beyond the statutory period of five years, its right to an allowance of a deduction for amortization is not affected bj^ the provisions of section 234 (a) (8). -We are of the opinion that the taxpayer's contention is not well taken. There is nothing in the Revenue Act of 1921 to indicate that Congress intended a claim for amortization to be governed by the limitation within which the Commissioner might make an assessment. Congress certainly had the right to prescribe the time within which tax payers might make claims for amortization of war facilities and to bar all claims not made within such time. It did not jsrescribe any period of limitation in the Revenue Act of 1918, but in the Revenue Act of 1921 it amended section 234 (a) (8) of the Revenue Act of 1918 by inserting the provision " if claim therefor was made at the time of filing return for the taxable year 1918, 1919, 1920, or 1921." There is no room to doubt the intention of Congress in this provision. The Board can not go beyond the plain provisions of the statute, and the action of the Commissioner in denying taxpayer's claim for amortization, which Avas filed on April 27, 1924, is approved.
The next issue relates to the question of whether the taxpayer, Stauffer Oil Co., Summit Copper Co., and the California Nut Products Co. were affiliated during the taxable year 1918. The stock of the Stauffer Oil Co. was owned directly by the taxpayer and its stockholders, with the exception of 20 per cent, which stood in the name of Thomas Larkins, an employee of the Stauffer Oil Co. This stock, howeArer, had been endorsed by Larkins to the taxpayer and held and voted by it from the date it was issued until acquired outright subsequent to the taxable year. The stock of the Summit Copper Co. was owned directly by the taxpayer and its stockholders, with the exception of 100 shares issued to Charles Kunze, superintendent of the mines of the Summit Copper Co., 500 shares issued to Phillippe de Tristan, a resident of Paris, France, and a son-in-law of C. de Guigne, president, and a large stockholder of the taxpayer. The stock standing in the name of Kunze had been issued to him prior to the taxable year in order that he might participate in any profits which that company might make. He paid nothing for the stock and at the time it was issued to him he endorsed it and turned it over to the taxpayer which has held and voted it since that time. The 500 shares standing in the name of Phillippe de Tristan were purchased by C. de Guigne, president of the taxpayer, and transferred as a gift to de Tristan in order that any dividends thereon might be paid to him. During the taxable year these 500 shares were voted by C. de Guigne.
From the evidence submitted, we are of the opinion that the taxpayer, the Stauffer Oil Co., and the Summit Copper Co. were affiliated during the calendar year 1918. Appeal of Boston Structural Steel Co., 1 B. T. A. 602; Appeal of Schloss Bros. Co., 1 B. T. A. 581; Appeal of Wright Cake Co., 2 B. T. A. 58; and Appeal of Edward Rose Co., 2 B. T. A. 341.
No evidence has been submitted showing any control by taxpayer, or its affiliated interests, over the 45 per cent minority stockhold-ings of the California Nut Products Co. The fáct that the taxpayer managed its affairs and loaned it money from time to time is not alone sufficient to warrant affiliation.